Lewis v. Nance

BARNARD, P. J.

This is an action to quiet title to certain real property as against the rights of the defendant under an oil lease. The findings and judgment were in favor of the plaintiffs, and the defendant has appealed..

The case was tried upon stipulated facts from which it appears that the respondents leased the property to the appellant for the purpose of drilling for oil on May 29, 1933; that in May or June, 1933, the appellant employed an oil well driller to drill a well thereon; that a notice of

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intention to drill was filed on June 30, 1933; that on August 10, 1933, an equipment company agreed to' supply the appellant with tools and equipment for drilling an oil well on this lease as soon as a derrick had been erected; that on August 26, 1933, the appellant caused the land to be surveyed and made locations thereon for three oil wells; that on the same day some sand, gravel, cement and tools for the building of a derrick were placed upon the property and workmen began excavating for four concrete corners upon which the derrick was to be placed; that on August 27, 1933, the excavations for these four corners were completed to a depth of three feet and concrete was placed therein; that on the same day excavation for a cellar was begun which work was continued throughout August 29, 1933; that on that day two truckloads of rig lumber were hauled on the property and workmen commenced cutting said lumber into sizes suitable for the erection of an oil derrick; and that the erection of a derrick was begun on August 29th and was practically completed on September 1, 1933, at which time work ceased because of a temporary restraining order issued in an action brought by a third party. In the meantime, notice declaring d forfeiture was served by the respondent upon the appellant on August 29, 1933.

The lease in question contained the following clause:

“The Lessee agrees to start the drilling of a well for oil within ninety (90) days from the date of this agreement, and to continue the work of drilling such well, after commencing the same, with due diligence. ...”

The appellant attacks the findings and judgment, but in effect the sole point raised involves an interpretation of this clause of the lease. It is conceded that the ninetieth day under the lease was August 27, 1933, and the question is whether the commencement of operations preliminary to the installation of an outfit to be used in drilling an oil well is a compliance with this provision of the lease, or whether compliance therewith required an actual penetration of the ground with a drill during the ninety-day period.