Norris Oil Co. v. Von Glahn

MOORE, P. J.

The judgment herein quieted title in respondent whose interest is a leasehold estate. The court found that the two leases theretofore executed by respondent to appellants had terminated prior to the commencement of this action and the latter now have no interest in the lands described.

Appellants contend here that the default under the lease resulting from their failure to commence drilling operations within a year from the date of the writing and their failure to tender rentals within the year did not

ipso facto

terminate their rights. They claim that the leases could be terminated only upon their failure to cure the default within 30 days after service of notice of default as provided by paragraph 22. On the contrary, respondents contend that the leases involved are of the “unless” type which provide for an

ipso facto

termination of the lessee’s rights if drilling be not commenced within the time specified unless the drilling time is extended by the payment of deferment rental. (See XIII So.Cal.L.Rev., pp. 403-405.)

From the language of paragraphs 5, 6, and 22 of the leases it is readily to be seen that appellants are endeavoring to establish that the lease may be terminated by the lessee only

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and that if the lessee does not elect to terminate the

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lease, he shall pay yearly in advance a rental of $1.00 per acre until drilling commences. Paragraphs 6 and 22 are not controlling. Paragraph 6 permits the lessee" to pay a yearly, advance rental of $1.00 per acre until operations are commenced, if the lessee has not begun drilling within one year from date of the lease. Paragraph 22 makes provision for a procedure and penalty in event the lessee violates a term or condition of the lease and fails to commence to remedy such violation within 30 days after notice to do so. That paragraph applies to lessee’s failure to perform other conditions as required by the lease

(Alexander