Higgins v. Exeter Oil Co.

THE COURT.

This is an action to quiet title to a tract of land based upon an alleged violation of a provision in an oil and gas lease forbidding assigning or subletting without the consent of the lessor. The issues were tried before a jury who returned a verdict for plaintiff. Thereafter defendants moved for judgment notwithstanding the verdict, and the motion was granted. This appeal is from the judgment entered by the court after the verdict had been set aside.

In 1924 plaintiff was the owner of a five acre tract and executed this oil and gas lease thereon to the Associated Oil Company. The Associated Oil Company drilled three producing wells-which it operated until 1931 when it sold its interest in the leasehold to the Cypress Petroleum Oil Company, which thereafter with the consent of the owner, assigned the lease to the Exeter Oil Company, Ltd., one of the defendants herein.

In 1938 the Exeter Company attempted to negotiate a sublease to the Barnsdall Oil Company, and a sublease was prepared and submitted to Mrs. Higgins for her consent and approval. This she refused to grant, and according to the contention of appellant the proposal was abandoned and the sublease destroyed.

Thereafter a contract of employment was entered into between the Exeter and the Barnsdall Companies, wherein the Barnsdall Company was employed to drill for the Exeter Company one well only, upon the Higgins property. Upon learning of this arrangement, Mrs. Higgins wrote to the Exeter and the Barnsdall Companies, contending the employment of the Barnsdall Company was a subterfuge. However, the Barnsdall Company went upon the land and successfully completed a well producing some thirteen hundred barrels of oil daily, and the Exeter Company tendered to Mrs. Higgins checks aggregating in excess of $9,000 as her proportion of the royalty therefrom, which she refused to accept.

Thereafter Mrs. Higgins, acting under a provision of the assigned lease, wherein it was provided that the lease should not be assigned in whole or in part or any part of the leased premises sublet without her consent in writing first had, notified the Exeter Company that the lease was terminated, and

[794]

brought this action to recover the possession of the real property and to terminate the rights therein of the Exeter Company, Ltd., and the Barnsdall Oil Company.