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 NOTES OF RECENT CASES construction in Ammoiis v. Toothman, 53 South eastern Reporter, 13. A deed conveyed one half of the oil and gas in certain lands excepting from the conveyance " the well that is now producing oil on said land." At the execution of the deed the well excepted from the grant was being oper ated by a prior lessee and some time after the deed was made it ceased to produce oil. The lessee thereupon deepened it to a different sand rock not previously known to be an oil-producing stratum, as no wells had prior to that time been drilled to that stratum. Oil was, however, found there in paying quantities This oil was held to be within the exception in the deed, the court pointing out that the grantee in the deed never granted oil in or which was to come through the well in question; in other words — and this seems to be the gist of the court's argument — the well remained the same well after it had been sunk to the lower stratum. A search for authorities in support of this holding seems to have had but meager results, as Spencer v. Scurr, 31 Beavans Rep. 337, and Crouch v. Puryaer, i Rand. 258, are the only pre cedents referred to. PROPERTY. (Oil and Gas Leases — Implied Covenants.) U. S. C. C. A. 8th Circuit. — A num ber of points of considerable importance are con tained in Brewster v. Lanyon Zinc Company, 140 Federal Reporter, 80 1. An oil and gas lease on three separate tracts of land gave the lessee two years within which to drill a well on said premises, and provided that the time might be enlarged by the payment of an annual rental from the expiration of the second year until the well was drilled, and that if no well should be drilled upon the premises within five years, the lease should be void. In construing this lease the court holds that the measure of diligence which the lessee was required to exercise in prosecuting the work of exploration and development during the first five years was expressly defined, and not left to the implication which otherwise might have arisen from the nature of the lease, and the other stipulations therein, and that a well having been drilled on one of the tracts during the fifth year, and the stipulated rental having been paid from the end of the second year until that well was drilled, the lease was not avoidable merely because other wells were not drilled during the five year period. Further provisions of the lease granted all the oil and gas under the lands, together with the right to enter at all times for the purpose of drilling and operating, to erect and maintain structures, pipe lines, and machinery necessary for the prodxiction and transportation of oil and gas, and touse sufficient water, oil, and gas to run the necessary engines for the prosecution of the

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business. Substantial royalties in kind and in money were reserved to -the lessor in proportion to the oil produced and saved and the gas used off the premises, and it was apparent from the terms of the lease that the promise of these royalties was the controlling inducement to the grant. As pre viously mentioned, the lease while requiring the drilling of one well during the first five years did not expressly define the measure of diligence to be exercised in the work of development and production after the expiration of that period. These provisions construed together are regarded as amounting to a covenant by the lessee, that if during the five years allowed for original explora tion and development either oil or gas were found in paying quantities, the work of development and production should be continued with reason able diligence, that is, along such lines as would be reasonably calculated to make the extraction of oil and gas from the leased land of mutual advan tage and profit to the lessor and lessee. Conse quently on failure of the lessee to take any steps to develop the land after its value had become apparent from the drilling of an experimental well, it is held that the lessor was entitled under this implied covenant to enforce a forfeiture by suit in equity and this despite the fact that equity will not ordinarily grant relief by the enforcement of a forfeiture. PROPERTY. (Easements — Party Walls.) Iowa. — A decision which conforms to the prin ciples which govern decisions concerning party walls, although the facts are a trifle peculiar, is contained in Jackson v. Bruns, 106 Northwestern Reporter, i. It is there held that the owner of the second story of a building has no equitable right to compel the owner of the first story to keep the foundation and walls of the first story in re pair for the purpose of furnishing continuing sup port to the second story in the absence of any express or implied contract on the part of the owner of the first story to do so. Cases concern ing party walls including Sherred v. Cisco, 4 Sandf. 480; Partridge v. Gilbert, 15 N. Y. 601; Heartt v. Kruger, 24 N. E. 841; Hoffman v. Kuhn, 57 Miss. 746; and Odd Fellows Ass'n v. Hcgle, 32 Pac. 679, are referred to and from them is deduced the rule that the owner of the second story does not have a perpetual easement, so as to be entitled to have the owner of the lower story replace the lower walls in case of total destruction, for the purpose of furnishing support to the upper story of the other party. From this the court argues that if no obligation exists to rebuild in case of destruction, one cannot be required to keep the foundations and walls in repair so as to support the upper story. PUBLIC LANDS. (Bona Fide Purchaser.—