Calhoma Oil Corp. v. Conniff

WASTE, C. J.

The plaintiff corporation instituted this action to permanently enjoin and restrain the defendants from interfering with its asserted endeavor to continue drilling operations on a tract of land situate in Alameda County, which

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tract by written lease bearing date March 19, 1925, had been demised to it for a term of five years by the defendants. The lessors, by way of affirmative defense, alleged in their answer that the lessee had violated a provision of the lease requiring continuous drilling, which violation, it was alleged, caused the lessors, on September 29, 1926, to serve the lessee with written notice of cancellation of the lease. The court below, on sufficient evidence, found the allegations of the affirmative defense to be true, and entered judgment denying the injunctive relief prayed for by the plaintiff. It also declared plaintiff’s lease forfeited because of breach of covenant, and ordered restitution of the premises to the lessors. Plaintiff appealed.

As a first contention appellant urges that the notice of forfeiture served by the lessors was insufficient and defective, and failed to work a forfeiture of the lease and leasehold estate, for the reason that such notice did not comply with the provisions of section 1161 of the Code of Civil Procedure in that it did not demand possession of the demised premises. Two notices were served on the lessee in this case. Two months before giving the final notice, the owners served a preliminary notice or demand, viz.: “This is to notify you and each of you that the lessors under said lease expect to and do rely upon the strict terms and provisions of this lease and unless the lessee, Calhoma Oil Corporation, strictly complies with its part thereof, that said lessors will take such legal action as may» be necessary to terminate said lease and the right of said lessee thereunder.” Appellant contended upon the trial, and the point is reiterated upon the appeal, that this constituted a waiver of all past breaches of the covenant of the lease requiring continuous drilling so as to render inadmissible any and all evidence of such prior violations. We do not so interpret the notice. Bather than constituting a waiver of any of their rights under the lease, the notice served to inform the appellant that the lessors stood upon its strict terms and provisions.