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the court finds the facts in this case to be as session of the land devised to them by Wilhereinafter set out under the two heads liam Crawford up to November 27, 1894, and 'Principal Facts Found,' and 'Collateral Facts they were in actual possession on October 13, Found.'

1900, when this suit was brought.

"(6) On November 27, 1894, nearly two “Principal Facts Found.

months after the plaintiffs had come into "(1) William Crawford died in the year

actual possession of this farm, the Forest Oil 1846, leaving a will, which was duly probat

Company, the defendant in this case, as an ed on August 25, 1816, and remains of record

intruder, wrongfully entered thereon and in the register of wills office of this county.

wrongfully took possession of the four proAt the time of his death he was the owner in ducing oil wells drilled thereon before the fee of a tract of land in Mt. Pleasant town

death of Matthew Crawford and so much of ship, this county, containing 105 acres, more the surface thereof as was necessary to operor less, which he called his ‘old farm adjoin

ate the same, and continued in possession ing Mark Kelso and others, and in this will

thereof until July 30, 1897, during which thus probated he provided, inter alia, as fol- ! period it wrongfully pumped therefrom, carlows: 'I will and devise to my son Mat

ried away, and had stored in pipe lines off thew and to his children my old farm ad

the premises large quantities of oil, which joining Mark Kelso and others, provided

was afterwards sold, and the price thereof however at the end of one year after my

received and wrongfully appropriated by it." decease or when called upon for it, he shall

"(8) The fair market value, in the pipe pay to his mother the sum of three hundred

lines, of the oil wrongfully taken and cardollars in addition to the sum as above be- ried away by the defendant company bequeathed her; and he shall pay also to my

tween November 27, 1894, when it first took son Oliver's child when it shall become of

possession of these wells, and July 30, 1897, age, the sum of two hundred dollars but if

when it surrendered possession to the receivthe child shall die before it comes of age I

er, is $36,611.44; and the fair and reasonable will that he be altogether exonerated from charges for producing said oil from the wells the payment of the said two hundred dol

and putting it into the pipe lines, including lars.' This farm is the one concerning which

labor and repairs to machinery and applithe controversy in this case arises.

ances, is $4,526.84. “(2) Matthew Crawford, the devisee named

“(9) The delay on the part of the defendin the part of William Crawford's will just | ant company in not compensating the plainquoted, immediately after his father's death

tiffs for the damage done them is not exin 1846 took possession of this farm thus de

cusable, and the damage suffered by the vised to him, and was in possession of the plaintiffs for this delay in payment or the same at the time of his death, which was on

detention of the oil is assessed at $12,000, September 30, 1894. He never had any title

which is slightly less than six per centum to this land other than that evidenced by his

interest on the money received by the defather's will.

fendant company, after deducting the ex"(3) The plaintiffs in this case are the liv

penses of operating and keeping the wells in ing children of Matthew Crawford and those

repair from the times it received it until this who stand as the legal representatives of date. those who are dead, and they claim title to the farm concerning which this controversy

"Collateral Facts Found. arises under the same clause of the will of "(1) On December 4, 1890, Matthew CrawWilliam Crawford that vested title in their ford granted to T. J. Vandegrift, his heirs father, Matthew Crawford, and as against and assigns, the exclusive right of operate the defendant company in this action they ing for oil and gas on this farm of 105 acres, have no title to said farm other than is evi, more or less, and on May 11, 1891, T. J. Vandenced by the will of William Crawford. degrift assigned all his right, title, and in

"(4) At the time of the death of Matthew terest under this grant and other leases that Crawford, on September 30, 1894, there were he held to the Woodland Oil Company, its on this farm-title to which is claimed by successors or assigns, and on November 27, the plaintiffs under the will of William Craw. 1894, the Woodland Oil Company assigned ford-four producing oil wells, which, be- its interest under said grant, together with tween the time of his death and the bring- other leases, to the Forest Oil Company, the ing of this suit, have produced large quan- defendant company in this case. And it was tities of oil, which the defendant company under this assignment that the defendant took and carried away.

company entered upon the plaintiffs' farm on "(5) Immediately after the death of Mat. November 27, 1894, or a few days thereafter, thew Crawford, on September 30, 1894, and took possession of the four producing George Crawford, one of his children, and oil wells found thereon, and which had been one of the plaintiff's in this case, in his own drilled by the Woodland Oil Company during behalf and for and in behalf of the other plain- | the life of Matthew Crawford. tiffs, who with him claimed as tenants in “(2) At the time Matthew Crawford made common, entered upon, and as against the his lease to T. J. Vandegrift, George and defendant company held actual and full pos- Thomas Crawford, two of the plaintiffs, had knowledge that it was being made, after- state, brought an action of ejectment in 1996 wards that wells were being drilled and oil in the United States Circuit Court of the produced and royalties paid to their father; Western District of Pennsylvania to recover but they also knew that Matthew Crawford his undivided interest in this farm. Judgment did not claim to have anything more than a was entered in his favor, and this judgment, life estate in the land in question, and that upon appeal to the United States Circuit he so informed the person who took the lease, Court of Appeals, was affirmed, and by a and that that was always the understanding writ of babere facias possessionem he was between him and his children and in the put in possession in the early part of 1897. neighborhood.

The Forest Oil Company then brought an ac"(3) The Forest Oil Company, the defend- tion of ejectment against him to recover ant in this case, when it took its assignment back possession of this interest. Judgment from the Woodland Oil Company, and before was entered against it, and on appeal the it paid in full the consideration money for judgment was affirmed in the fall of 1897. that assignment, had reasons for knowing Eliza Erskine, Mary H. Davis, Nancy Reed, that the plaintiffs did not recognize the lease Matthew A. Crawford, and William Crawof Matthew Crawford as binding on them ford, other children of Matthew Crawford, after his death, and did know that the will respectively brought suits for his or her inof William Crawford was the only evidence terest in this land, and each recovered judgof title to the 105 acres that Matthew Craw- ment in an action of ejectment in the United ford had when he made his lease to T. J. States Circuit Court for the Western DisVandegrift. They entered and took the oil trict of Pennsylvania, and these several judg. under the claim, and still maintain that the ments on appeal were affirmed. After these will of Wm. Crawford gave to Matthew judgments bad been affirmed, a bill in equity Crawford a fee-simple estate in the 105 acres was filed in the Circuit Court of the United of land devised to him. The company was States for the Western District of Pennsylnever misled by the plaintiffs as to what vania, in which the children of Matthew Matthew Crawford's title was, and did not Crawford were made plaintiffs and the Forbuy his lease to T. J. Vandegrift for reasons est Oil Company defendant, under which a other than that it believed the will of Wm. receiver was appointed, and a decree made Crawford gave to Matthew Crawford a fee- against the defendant company to account to simple estate.

the plaintiffs for the oil taken by it, and a "(4) When Matthew Crawford executed master appointed, whose report against the bis lease to T. J. Vandegrift on December 4, defendant company was approved, and judg1890, he owned in fee 33 acres adjoining and ment entered against it for several thousand lying east of the tract devised to him by his dollars. On appeal by it, the United States father, Wm. Crawford. The lease embraced Circuit Court of Appeals reversed this judgboth tracts (138 acres, more or less). In the ment of the court below, and directed that lease is found this provision: "The product the plaintiffs' bill be dismissed, for the reaof the eastern thirty-three acres to be kept son, among others, that the plaintiffs had an separate.'

adequate remedy at law. This judgment of "(5) On November 30, 1894, the defendant reversal was entered May 21, 1900, and on company paid to the Woodland Oil Company October 13, 1900, the suit at bar was instithe sum of $14,000, and took froin it the fol- tuted. lowing receipt: “Received of the Forest Oil “(7) During the time the defendant comCompany, Fourteen Thousand Dollars on ac- pany took the oil in controversy, the usual count of a sale to them on the 27th day of royalty paid to a landowner in Mt. Pleasant November, 1894, of the Matthew Crawford, | township, Washington county, by a lessee James G, Berry, Scott Heirs, Thompson Cow. | who assumed the risk of getting oil and paid den and a portion of the Stilley farms, situ- all expenses of drilling and operation, was ate in Mt. Pleasant Township, Washington one-eighth of the oil in the pipe lines. There County, Pa., South of Primrose, upon which was no evidence offered by either party as there are ten producing wells, rigs, tanks, to what the royalty would be where the landmachinery, casings, pipes and fixtures there- owner leased producing wells. to belonging and on the different leases. The purchase price $52,000 of which this is

"Conclusions of Law. on account and the remainder to be paid as “(1) That Matthew Crawford had only a soon as titles are perfected. In event of our life estate in the 105 acres, more or less, not being able to make a sufficient title to which was devised to him by his father, Wm. the Matthew Crawford, the Matthew Craw- Crawford, and which he leased to T. J. Vanford and Stilley leases are not to be included degrift for oil and gas purposes. in the sale and a proper reduction to be made "(2) That the plaintiffs may be estopped from the original amount to be settled by T. from calling in question the validity of the J. Vandegrift on the part of the Woodland lease made by Matthew Crawford, the life Oil Company and W. J. Young for the For- tenant, to T. J. Vandegrift, during Matthew est.'

Crawford's life, but that they are not estop“(6) Oliver P. Crawford, one of the children ped from claining that the lease terminated of Matthew Crawford, a nonresident of this at his death; and that all rights of the Wood.

57 A.-4

land Oil Company to the oll in and under the farm in question terminated at that time; and that the defendant company took nothing under its assignment from the Woodland Oil Company, and was a trespasser when it entered under that assignment.

"(3) That the true measure of damages in this case is the value of the oil taken in the pipe lines, less the expense of putting it there, which expense would include labor and necessary improvements and repairs to the fixtures and appliances used in doing this, with such additional sum as would compensate the plaintiffs for the detention of the oil or for the delay in not receiving the damages that they were entitled to receive; this sum not to exceed legal interest on the various sums received by the defendant company for the oil which it wrongfully took and sold.

“(4) That the plaintiffs are not, in this action, entitled to recover damages for oil drained through wells on adjoining farms, nor for the defendant's neglect in not drilling more wells on the 105-acre tract of land, nor for preventing them from drilling other wells thereon.

“(5) That the plaintiffs in this case are entitled to a judgment against the defendant company for the sum of $41,084.60.

"Comments. “). As to facts found: In our findings of facts, we have classified them under two heads: (1) Principal Facts; (2) Collateral Facts. The principal or controlling facts are the facts upon which we rest our decision in favor of the plaintiffs. The collateral facts are facts that are not necessary to support the plaintiffs' case, but may be important in the event that we are wrong in our views of the law, and they are found for use in the appellate court if an appeal is taken from the judgment entered by this court.

"2. As to conclusions of law: (a) Rulings against plaintiffs.

“The plaintiffs at the trial offered to show that they were damaged because the defendant company during the time it was in possession of their land 'took and carried away large quantities of oil underlying it through wells on adjoining lands which it was then operating,' or so operated their land as 'to permit and suffer the oil therein to be drained out by wells drilled upon adjoining property.' This was objected to as incompetent and irrelevant under the pleadings in this case, We sustained the objection and overruled the offer. After consideration we are still of the opinion: (1) That in this action the plaintiffs cannot recover damages against the defendant company for draining oil that belonged to them in situ through wells that it lawfully drilled on adjoining farms. (2) That in this action they cannot recover damages against the defendant company for oil they did not take out through wells drilled on the plaintiffs' land, nor for not drilling more wells so that they could have taken out

more oil. (3) That they cannot recover damages in this action against the defendant coinpany, for the reason that, if the plaintiffs had been in full possession, they might have drilled one or more additional wells on their land, and obtained more oil than was obtained. The plaintiffs also claimed that the trespass committed by the defendant company was such that it was not entitled to any credit for expenses and improvements put upon the lease. In our opinion, the defendant was not guilty of a malicious trespass. It acted under a mistaken belief on a question of law. It must bear the consequences of that mistake, but the plaintiffs ought not to have more than they would have gotten had they entered and operated the wells themselves. We have not treated the material taken off the farm, and set out in plaintiffs statement as a separate claim, or as something separate from the taking of the oil, but have taken what was done in the way of adding material and appliance and of taking away material and appliance as bay. ing been done in the operation of the wells, and the balance in favor of the defendant company we have found to be $4,526.84, or the difference between $7,708.44, defendant's account for expenses for operating and improvements and repairs, and $3,181.60, value of material and machinery removed from the wells.

“(b) Rulings against the defendant:

“(1) What estate did Matthew Crawford take under the will of William Crawford to the land in controversy? A life estate. Why? It was devised to him and his children.' 'Children' is a word of purchase, and not limitation. It does not limit or qualify the estate devised, but describes the persons who take. Fully expressed, the will would read: "To Matthew Crawford and to his children then in being, to wit, George Crawford, Thomas L. Crawford, etc., and any other children that may hereafter be born to him in lawful wedlock. The children to take at his death. This rule of interpretation is well established. There is nothing in the will of William Crawford showing clearly that he used the word in any other than its technical sense, and, in the absence of such a clear intent of the testator gathered from the language of the will itself, we cannot say that he used the word 'children' as a word of limitation. The exact question here raised has been decided by the United States Circuit Court of Appeals (Forest Oil Company v. Crawford, 77 Fed. 106, 23 C. C. A. 55, and 83 Fed. 109, 27 C. C. A. 410), and the decision of that court is certainly highly persuasive, if not a binding authority; and with the general rule just given and these decisions before us we could not do otherwise than hold that Matthew Crawford took only a life estate in the land in controversy under his father's will, and that his children took an estate in remainder.

"(2) Are the plaintiffs estopped from de aying that William Crawford had a fée-simple estate in this land? Not unless they did something to deceive the defendant company, upon which it acted to its injury. The evidence shows that two of the plaintiffs after the death of Matthew Crawford told the defendant company's agent that they would not give the company any trouble, but this was coupled with the information that others of the children would, and the advice that Mrs. Erskine of Steubenville should be seen. Clearly, there is nothing here that would estop the plaintiffs from standing on their legal rights. But it is claimed that George Crawford and Thomas L. Crawford, and perhaps others of the plaintiffs, acquiesced in the father's making of the lease to T. J. Vandegrift, and had knowledge of the Woodland Oil Company drilling under that lease, and of its paying royalties to their father for the oil taken; and this is all true, as we have set out in our findings of fact. But can these facts be set up as constituting an estoppel by the defendant company? It may be conceded that they would estop the plaintiffs from claiming damages from the Woodland Oil Company for taking oil during the life of Matthew Crawford, but from such a concession it would not follow that the same contention could be sustained as to the Forest Oil Company, that entered upon this land two months after the plaintiffs bad entered upon their inheritance and the lease of Matthew Crawford to T. J. Vandegrift bad been ended by the death of Matthew Crawford, Oil is a mineral in situ, and, like coal, can be taken by the life tenant if at the time his testator dies there are on the land open mines. If there are no open mines, and he opens them, he is liable to the remaindermen for the oil or coal taken in an action of waste. Matthew Crawford, a life tenant, through the Woodland Oil Company, the assignee of his lessee, drilled wells and took oil. The remaindermen, as against both, had a right of action, but if they encouraged 'the opening of the mines they would be estopped from bringing such action. But this certainly would not be the case for oil taken after the death of the life tenant. The lease terminated at his death. The testimony shows that when the lease was made and when it was being operated by the Woodland Oil Company the plaintiffs consented to their father as a life tenant taking the oil; and, if the father had lived long enough, all the oil might have been taken. The lessee, when he took the lease, was expressly told that Matthew Crawford had only a life estate, and the source of his title was known to the lessee, or ought to have been known, as it was on record in the register of wills office for bis inspection and examination. Certainly there was nothing done by any of the plaintiffs that was not wholly consistent with the theory that they were allowing the life tenant to take or mine the oil the same as though wells had been drilled or mines

opened before the death of his testator, and that his right, or those claiming under him, so to do, would terminate with the death of the life tenant. When the Forest Oil Company entered, it knew the source of the title of Matthew Crawford; it examined his father's will for the express purpose of seeing what his estate in the land was; in the eyes of the law it knew, or ought to have known, that he had only a life estate; it knew that the plaintiffs bad not signed the lease to T. J. Vandegrift; and it had good reasons for knowing that the plaintiffs, or at least some of them, would likely make trouble if their claim that their father was only a life tenant should be controverted. Knowing these things, it is evident that it was not induced to buy an assignment of the Woodland Oil Company by any representations or conduct of the plaintiffs, but because, after an examination of the will of William Crawford, it believed that Matthew Crawford took a fee-simple estate in the farm devised to him. If the interpretation it put upon this will was a mistake in law, it cannot now charge that mistake up to the plaintiffs by saying that they are estopped from claiming their rights under their grandfather's will.

"(3) Have the plaintiffs a right to maintain this action of trespass? Before the civil procedure act of 1887, the wrongful taking of oil by one person from the land of another and appropriating the same to his use-according as the facts might be made to appear-would support either an action of trover, an action of trespass de bonis asportatis, an action of trespass quare clausum fregit, or an action of trespass for mesne profits. All of these actions, under the act of 1887, are now 'actions of trespass.' The wrongful taking of oil in the pipe lines, if nothing more appeared in the case, would be the wrongful taking of personal property, and either of the first two actions named would be a proper remedy. But if this oil, before it reached the pipelines, had been severed by the wrongdoer from the land where nature stored be a wrong that would involve the question of the possession of the land out of which the oil was taken, or of the oil in situ, which in a sense real estate. In the case at bar the defendant company severed the oil from the land. Therefore we take it that the plaintiff's' statement and the proof thereunder to sustain the action at bar ought to be sufficient to support either an action of trespass quare clausum fregit, or an action of trespass for mesne profits. To sustain either of these actions, title and actual possession or the right to immediate possession are involved. If the defendant is in possession, and is a wrongdoer without claim of title, title and the right to immediate possession in the plaintiffs are sufficient to maintain an action of trespass quare clausum fregit. If the defendant is in adverse possession under color of title, the plaintiff must first establish his title in an

action of ejectment. If he succeeds, and re- adverse possession under color of title as to gains possession, then he is in position to prevent the plaintiffs from maintaining an maintain and prosecute to judgment an ac- action of trespass for the oil wrongfully mintion of trespass for mesne profits. Under ed and carried away until they had establishthe act of 1879 (P. L. 125), this action of tres- ed their title and regained possession of the pass may be instituted before possession is four oil wells in actions of ejectment. If, regained, but cannot be prosecuted to judge | however, we are mistaken in these conclu. ment until the question of title in the eject- sions, it does not follow that the plaintiffs ment suit is fully settled. As we have found cannot maintain this action of trespass. On in this case, the plaintiffs entered upon the July 30, 1897, the possession of these four oil farm in controversy at the death of their wells was taken away from the defendant father. This entry was not by all of them in company, and there is no evidence that it person, it is true; but, as they were tenants in ever retook possession after that date, or that common, that was not necessary. Those that it was in adverse possession under color of did actually enter made an entry for all which title on October 13, 1900; nor is there even the law recognizes as putting them all in pos- any evidence that these oil wells on October session. Two months after this date the de. 13, 1900, were producing oil 'in paying quanfendant company entered upon the same farm tities,' or, in other words, that the lease unand took possession of the four wells that had der which the defendant claimed had not ex. previously been drilled and enough of the pired by its own terms. If the defendant surface of the land to operate these wells, company, before October 13, 1900, bad ex. and carried away large quantities of oil with- hausted all the oil, then, on its own showing, out any title to either the land or the oil, it at that date had no title or color of title, and without any such claim of adverse pos- and, if it never went into actual possession session under color of title as would prevent after the receivership terminated, there could the plaintiffs from maintaining an action of be no right of action in ejectment in the trespass before first bringing action of eject- plaintiffs against the defendant company on ment and recovering back the oil wells and October 13, 1900, and they would be free to the surface necessary to operate them. The bring their action of trespass for mesne prof. defendant company did not deny the title of its or damages for taking and detaining the the plaintiffs to the farm in question. Its oil. All that the act of 1879 (P. L. 125), auclaim was that they did own the farm, but as thorizing actions for mesne profits, requires, heirs of Matthew Crawford, and that it held is that the plaintiffs shall have obtained posa lease thereof ‘for three years from Decem- session before the trial of such action. There ber 4, 1890, and as much longer as oil and gas certainly was no claim at the trial that the is found in paying quantities thereon, yield. | defendant company was still in possession ing and paying to the lessor the one-eighth of these oil wells producing oil; and of course part of all the oil produced and saved from we could not say that a writ of habere facias the premises delivered free of expense into possessionem was, under such circumstantanks or pipe lines,' which was made by their ces, indispensable. 'If possession is voluntari. predecessor in title, and bound him and his ly given up, the right to institute an action heirs.' The plaintiff's claimed that Matthew for mesne profits is as clear as if it had been Crawford, being only a life tenant, could forcibly taken under a writ.' Caldwell v. not make a lease binding them; that their Walters, 22 Pa. 378. title was not derived from him, but from Wil- "(4) What is the true measure of damages liam Crawford, from whom he himself de- in this case? The evidence shows that the rived his title; and that the paper title of the defendant company took the oil under a defendant company, to wit, the will of Wm. claim of right which turned wholly on a quesCrawford and the lease of Matthew Craw- tion of law. In law it had no claim, but it ford, did not, in the eyes of the law, give to thought the law gave it a claim. It was honit even color of title, but on their face show- estly mistaken when it made the entry, and ed that the defendant had no right of entry therefore we are of opinion, as we have alon November 27, 1894, when it did enter. ready indicated, that the net value of the To repeat, we hold, first, that George Craw- oil in the pipe lines is the true measure of ford entered on the farm in controversy on damages for the oil taken, and in arriving September 30, 1894; that he entered for all at that sum we have taken what the oil sold the plaintiffs, who were tenants in common for in the market, and from this deducted with him, and that he was in possession when the cost of production. The claim that the the defendant did the initiative act of tres- value of one-eighth of the oil was the true pass complained of in this action; second, measure of damages is clearly untenable. that as against the defendant .company, That was the usual royalty paid to a landwhich was without title and out of posses- owner at that time and in that locality by a sion, the original entry of the plaintiffs upon lessee who drilled the wells. Here the landthe surface was an entry as to the oil con- owner had four wells already drilled and that tained in the land and under the surface; were producing oil. And the net value of the third, that the possession of the defendant daily production would be the profit accruing company after November 27, 1894, was that of to the owner of the land. The defendant a presumptive wrongdoer, and was not such i company drilled no wells, and it had no prop

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