Walston v. Flintridge Oil Co.

BARNARD, P. J.

This is an action to recover rent claimed to be due under an oil lease.

On December 21, 1953, the plaintiff as owner, and the de

[661]

fendants as lessee, executed an oil and- gas lease which provided, so far as material here, the following:

“Section 5.

. . . ‘Commencing with the 60th day of the term hereof, if the Lessee has not theretofore commenced drilling operations on said land or terminated this lease as herein provided, the lessee shall pay or tender to the lessor in advance, as rental, the sum of Twenty five ($25.00) Dollars per acre per month for so much of said land as may then still be held under this lease, until drilling operations are commenced or this lease terminated as herein provided.’

“Section 6.

. . '. ‘The Lessee agrees to commence drilling operations on said land within sixty days from the date hereof (unless the lessee has sooner commenced the drilling of an offset well on said land as herein provided) and to prosecute the same with reasonable diligence until oil or gas is found in paying quantities, or to a depth at which further drilling would, in the judgment of the Lessee, be unprofitable; or it may at any time within said period terminate this lease and surrender said land as hereinafter provided. No implied covenant shall be read into this lease requiring the Lessee to drill or to continue drilling on said land, or fixing the measure of diligence therefor. The Lessee may elect not to commence or prosecute the drilling of a well on said land as above provided, and thereupon this lease shall terminate.’

“Section

26.....‘On the expiration or sooner termination of this lease, Lessee shall quietly and peaceably surrender possession of the premises to Lessor and deliver to him a good and sufficient quitclaim deed, and so far as practicable cover all sump holes and excavations made by Lessee.’ ”

This action was brought on June 26, 1954. The complaint set forth a copy of the lease and alleged its execution; that it provided that if drilling was not commenced within 60 days the lessee would pay to the lessor $25 per acre per month in advance as and for rental of said property during the term of the lease; that “thereafter” the defendants entered into possession of the premises and such possession continued to on or about May 25, 1954; that during the term of the lease the defendants neither drilled nor attempted to drill any oil wells upon the premises; that they made no payment or tender of payment of rent in accordance with the terms of the lease; that four monthly payments of $1,000 each became due as rental; and that the defendants have refused to pay these amounts. Judgment for $4,000 was prayed for. The defendants filed a demurrer, which was sustained by the