Berry v. Kelly

MUSSELL, J.

Defendant appeals from a judgment in favor of plaintiffs in an action for injunction and damages.

Plaintiffs are the owners of real property in Kern County. The grant deed to them, dated April 5, and acknowledged May 8, 1944, contained the following reservations:

“Subject to existing oil and gas leases as of record and the Grantors herein reserve all things of value to be paid by said Lessees, their heirs or assigns, according, to the terms of said lease or leases and any renewal, extention or modification thereof.

"Excepting and reserving unto the Grantors herein all oil, gas, petroleum or other hydrocarbon substances within or underlying or that may be produced and saved therefrom, together with the right to prospect for, mine and remove the same, provided that said Grantors agree that they will not hereafter execute any Oil and Gas Lease that does not provide to pay for any damage done to crops.”

Defendant is the lessee named in an oil and gas lease executed by plaintiffs’ grantors on May 20, 1942, covering the real property here involved. Prior to the time plaintiffs purchased the property, defendant, through a sublessee had drilled an oil well thereon cased with 8⅝ inch casing to a depth of approximately 3,000 feet. When plaintiffs took possession a derrick was in place and an area surrounding it of approximately 3.13 acres was covered by sumps, a ramp and oil saturated dirt. “Mechanical failures and different troubles” caused defendant to have the machinery and derrick removed and the well capped. Drilling operations have not been resumed by defendant and the property has remained as it was when plaintiffs obtained title.

[488]

Plaintiffs allege that defendant has abandoned the well and the sumps adjacent thereto; that the location of the well and sumps occupy approximately 2 acres of the property and that plaintiffs have been deprived of the use of the 2 acres for farming purposes; that unless an injunction is issued to compel defendant to remove the oil well and to fill in the sumps plaintiffs will be deprived of the use of the land for a long time to come; that the reasonable rental value of the surface rights of the 2 acres during the years 1944 and 1945 and a part of 1946 is $125 per acre for said period.