Page images

In Allegheny Oil Company vs. Snyder, 106 Fed. 764, the Court said: Under the decisions of Supreme Court of Ohio relating to the construction of oil and gas leases, which have established a rule of property in that state, such leases carry an implied convenant on the part of lessee that he will drill and operate such number of wells on the premises as would ordinarily be required to develop their production and to afford ordinary protection to their lines; and the lessor may inforce such convenant by action, and is not obliged to permit the lessee to hold the land indefinitely for speculation purpose notwithstanding the absence of any express limitation in the lease."

InCollier vs. Munger, 75 Knnsas 550, in construing an oil and gas lease the court said:

1. The language of an oil and gas lease will be given its ordinary and commonly understood meaning where no reason appears for doing otherwise.

2. A contract to drill an oil and gas well contained the provision which reads: "The second party agrees to drill one well for oil or gas and go to the Mississippi limestone unless a good quantity of oil or gas is struck or otherwise at the option of the first party. Second party agrees to do the drilling in a good workmanlike manner or no pay. First party agrees to give one dollar per foot for the drilling, provided it is done in a workmanlike manner. Held, That the second party was en titled to the contract price for drilling the well when he reached the Mississippi limestone if the work was done in a good, workmanlike manner.

3 To drill a well in a good and workmanlike manner does not include placing it in a completed condition for permanent preservation by placing therein a packer and tubing and removing the water therefrom."

In New American Oil Co. vs. Troye. 166 Ind. 402. it is said:

Where a gas lease required a lessee to pay a quarterly rental in advance for delay beyond a stated period in drilling a well and the lessor accepts five quarterly pay

ments of rental without protesting at the delay in drilling the well, his action in commencing suit for the forefeiture of the contract for failure to sooner drill the well, only ten days after the expiration of the last quater, for which rent was paid, without previously giving notice to the lessee, and a reasonable time to drill the well, was inequitable and would not be sustained."

In Wagner vs. Mallory, 169 N. Y. 501, it was said by the Court:

1. A lessee acquires no title to oil until it has been taken from the ground under a lease granting him the exclusive right to mine and excavate oil for a specified period; or right of the oil pumped and raised from the premises to he delivered to the lessor.

2. Under laws 1883, c. 372, providing that oil wells and fixtures and rights held by virtue of any lease should be deemed personal property for all purposes except taxation, the right to oil is personalty, and does not pass under a deed for the excutors and devisees of the lessee conveying all the fand owned by them, or in which they have an interest.'

InHuggins vs. Daley, 99 Fed. 606, the Court construing a gas lease said: "A different rule of construction obtains as to oil and gas leases from that applied to ordinary leases or to other mining leases, and owing to the peculiar nature of the minerals, and the danger of loss to the owner from drainage, by surrounding wells, such leases are construed most strongly in favor of the lessor."'

In Bettman v. Harness, 42 W. Va. 433 Judge Brannon of the W. Va. Supreme Court in an opinion discussing clause of a lease, said: "We want to get at what was the most likely meaning of the words used. Courts may

look to language, the subject matter, and surrounding circumstances to get at the meaning, and thus place them. selves in the situation the parties were in, to glean their probable purpose Here is a landowner and oil producer negotiating a lease, a term of only two years

is fixed; but plainly that is only the period for completing a well; if a good one obtained, the operator wants long er time, and he inserts a clause extending term as long as oil or gas is produced in paying quantities; but the lessor wants the lease continued only upon condition that his share of the oil and gas rent be paid, and he means to have a clause which provides a continuance of the lease as long as both oil is produced and his rent paid."



There is no greater mistake made by an attorney than that of preparing instructions hastily. Instructions must be written when there is time for close thinking and deliberate thought, and not during the excitement of the trial in the courtroom. Few men can properly state a sound and all-inclusive instruction on a complex proposition of law, as each word should be carefully weighed before finding its place in an instruction. A proposition of law, strongly and clearly stated, goes with force into the minds of the jurors, while feeble and rambling one neither arouses attention nor produces conviction. The jurors, at least, many of them, are quick to seize upon strong statements, but slow to apprehend loose and prolix propositions. If a proposition of law is clearly stated in a few well-chosen words, each pregnant with meaning, it will not pass unheeded even if it does not carry conviction. In writing instructions, the counsel assumes the functions of the court, and must, for the time, sink the office of the Attorney in that of the judge. No partisan zeal must betray him, or else no instruction he prepares will receive the sanction of the judge. A hastily drawn instruction may be so inaccurately worded as to find no favor with the judge; or, if it is accepted, it may be the cause of a new trial or of a reversal. It is by no means a light or easy task to prepare instructions.

Definition is always dificult; it is so even in simple matfors, and in complex questions of law and fact it is a task that often taxes the mental powers of strong men to the utmost Two great virtues in a series of instructions are perspicuity of arrangement and clearness of definition. Where propositions must be briefly stated, with great accuracy, as in instructions to the jury, definition is of the highest importance, since each instruction asserting a proposition of law must, in a sense, define it; and what adds to the difficulty of the work is that the definition must be in the concrete and not in the abstract. This is so, because it is not enough to state mere abstract rules of law, but the rules must be applied to the facts. It is seldom safe to copy from a judicial opinion. Thoughts may generally be borrowed with safety, but not words. Judicial opinions are written for a purpose very different from that for which instructions are designed. Language not out of place in an opinion is very often out of place in an instruction. Principles are to be extracted from the decided cases, but not the words in which they are expressed. words are but the clothing, and misfits commonly result from borrowing clothing. Cases, although members of one general class, are seldom so closely alike that what is said in one can be accurately said in all. But, leaving out of account these considerations, there is still reason for censuring the practice of copying instructions, and that reason is if the attorney, after a study of the authorities, thinks out his own instructions and gives them expression in his own words he secures a mastery of his case that it gives him strength and confidence, while if he simply copies the words of another, his hold upon his case will be feeble and his whole route through the courts, generally insecure and unsatisfactory.

POWER OF WORDS.-Words are strong and weak, clear and obscure, and naturally convincing or confus. ing. As said by a great writer, the power of words is examplified by the care of those who desire to shield themselves from censure choose, to call bad things by fair names. It is for this reason that one who defends a party or witness shown to be guilty of some bad act will use the softest and mildest terms he can command in speaking of it, such as "the alleged offense, the alleged weapon, etc; while he who denounces the wrong will speak of the deadly weapon, the bloody dagger, and the red-handed murderer." From the time of the sea pirate who called himself a 'purveyor,' to our own times, when stage robbers call themselves "road agents," men have sought to escape the force of words descriptive of their crimes. The advocate who can fix upon a party or a wit. ness who has committed wrong, a name truly descriptive of the wrong will do much to brake him completely down; and on the other hand, the attorney who can adroitly, and without seeming effort, cover up the real nature of the wrong with fair, well-spoken words, will do much to save him from overthrow. Two men may explain the same fact and one produce conviction where the other would barely arouse attention, although the matter of the information conveyed by both may be substantially the same. Often, the actual facts, and merits of the case have very little to do with the verdict, compared with the counsel's skill in putting things together-casting weak points into the shadow, and bringing out strong points into glaring relief. There are things to be cast into the shade and things to be brought into the foreground and the best positions, with all the light attainable poured upon them. Arrangement of position, and choice of words, side-lighted by the proper shade and color that the force and power that skillfully selected words can give, are as necessary to a convincing argu⚫ ment before a jury as shade and color and proper groupping is to the artist and his picture.

« PreviousContinue »