The exact meaning of the term "domestic" in any contract is necessarily dependent upon the particular connection in which it is used. When a lessee covenants to furnish to the lessor free gas for domestic purposes, and no limitation is placed upon the amount or extent of user, the lessor is not entitled to use an unlimited amount of gas, but will be limited to such use as is customary and reasonable for domestic purposes.30 In the application of this rule it has been held that where. the lease places no limitation on the amount or place of use, the lessee is entitled to gas for heat and light within his dwelling house, and the maintenance of one light within the curtilage.31 It was held in one case under such a provision that the lessor might use the gas for domestic purposes on land other than that from which the gas was produced, particularly where the lessee has impliedly admitted the lessor's privilege 30 Hall v. Philadelphia Co. (1913) 72 W. Va. 573, 78 S. E. 755; Harbert v. Hope Natural Gas Co. (1915) 76 W. Va. 207, 84 S. E. 770, L. R. A. 1915E, 570; Pittsburgh & West Virginia Gas Co V. Richardson (1919) 84 W. Va. 413, 100 S. E. 220, 9 A. L. R. 86. In the lastcited case the court said: "The quantity of gas to which the defendant is entitled under this free gas clause in his lease is not unlimited, but is only such amount as is customary and reasonable for his domestic uses. * ** It cannot be said that the plaintiff has any arbitrary right to determine such amount. Neither has the defendant the right to say that he may use the gas produced to any extent which his wants, real or capricious, may demand. He is entitled under his contract only to so much gas free of charge as is ordinarily used, and as is reasonably necessary for such domestic purposes as natural gas is usually devoted to." 31 In Hall v. Philadelphia Co. (1913) 72 W. Va. 573, 78 S. E. 755, the court, in holding that the maintenance of a light outside of the house was a reasonable use for domestic purposes, said: "A clearer and more satisfactory index to the meaning of the terms than the definitions in any of the authorities cited is found in the usage or custom shown by the evidence to obtain in oil and gas regions. Oil and gas leases generally provided for free gas for the lessor's dwelling house, or one or more dwelling houses on the premises. Such a provision is usual or customary. It is found in most of the printed forms of lease. The free gas clause either stipulates for an outside light, or it is generally by the parties regarded as authorizing it. Nearly all lessors of improved lands upon which they reside have gas for heat and light within the dwelling, and also for a light in the yard. Advised of this well-nigh universal practice, the parties may well be supposed to have contracted with reference to it, and it affords a safer guide for interpretation of the clause than the definitions furnished us." to do so by permitting him to tap one of its gas lines and so use the gas for a long period of time.32 Although the courts so construe the term "domestic purposes" as found in the free gas clause so as to permit the lessor to use gas for outside lights, it is generally held that in so doing the lessor must use an economic burner of some sort in order to prevent the waste that occurs by the use of the ordinary open burner.33 But where the lease provides that the lessee shall equip the lessor's house for the use of gas and furnish the gas free of charge, it was held that the lessor could not maintain a light on the outside of the house. This case is clearly distinguishable from those above mentioned on the ground that in the latter case there is a clear implication from the terms of the contract that it was not intended that free gas should be furnished except for use within the house.84 Whether or not the duty of the lessee to furnish free gas for domestic purposes under the ordinary "free gas" clause is dependent upon the discovery and production of gas on the demised premises, or is an independent covenant on the part of the lessee to furnish free gas regardless of the production of gas upon the premises, is a matter of construction to be determined from the language of the contract. Where the covenant to furnish free gas contains no stipulation that the gas so furnished is to be produced from wells on the premises, or other language indicative of an intention that the duty to furnish gas is contin 32 Harbert v. Hope Natural Gas Co. (1915) 76 W. Va. 207, 84 S. E. 770, L. R. A. 1915E, 570. 33 Hall v. Philadelphia Co. (1913) 72 W. Va. 573, 78 S. E. 755; Harbert v. Hope Natural Gas Co. (1915) 76 W. Va. 207, 84 S. E. 770, L. R. A. 1915E, 570. In Pittsburgh & West Virginia Gas Co. v. Richardson (1919) 84 W. Va. 413, 100 S. E. 220, 9 A. L. R. 86, it was held that the lessee might properly install a meter to ascertain if gas was wasted. 84 Gillespie v. Iseman (1904) 210 Pa. 1, 59 A. 266. An ordinary gas lease contained a clause, "To pipe gas to the house for domestic purposes as soon as well is completed." Held to show that the gas furnished thereunder was to be supplied without charge. Bellevue Gas & Oil Co. v. Pennel (1907) 76 Kan. 785, 92 P. 1101. Where the lease provides that lessor shall have "gas free of cost to heat three stoves in dwelling house," it was the duty of the lessor to demand the gas and to put himself in a position to receive it at or about the well. Not having done so, the lessee is not in default and the lessor is not entitled to recover the value of the gas so to be furnished. Lewis v. United Natural Gas Co. (1920) 75 Pa. Super. Ct. 44. 35 gent upon production on the premises, it is usually held that the lessee's duty is entirely independent of production on the demised premises.3 On the other hand, where by express provision, or by construction of the language of the lease, the intention is gathered that the duty to furnish 35 Indiana Natural Gas & Oil Co. v. Hinton (1902) 159 Ind. 398, 64 N. E. 224; Armitage v. Mt. Sterling Oil & Gas Co. (1904) 80 S. W. 177, 25 Ky. Law Rep. 2262. A contract of June 6, 1890, made on a printed blank, stipulated in printing that defendant, a gas.company, should have the exclusive right to drill and operate wells on a small plot of plaintiff's land, in consideration whereof the company agreed to furnish gas for four residences, free of charge, as long as gas was obtained on the land in paying quantities, and to pay a well rental of $200 per year for each well completed. The provisions in writing stipulated that of the well rental of $200 per year $100 should be paid in cash and $100 in gas; the cash payment to be made annually in advance, beginning on September 1, 1890, "whether a gas well is drilled or not. The gas payment above named begins with this date." The parties performed the contract for two years according to the written stipulations. Held, that both the cash and the gas payments were to be paid annually whether a gas well was drilled or not. Kokomo Natural Gas & Oil Co. v. Albright (1897) 18 Ind. App. 151, 47 N. E. 682. Where an oil and gas company takes a lease of land for a term of years "for the sole and only purpose of drilling and operating for petroleum oil or gas," and covenants to pay a royalty on oil and gas produced, and also, as additional rental, to furnish the lessor with natu ral gas for heat and light for his house during the term of the lease, and the lease contains no forfeiture clause, or clause as to the number or depths of the wells to be drilled, or as to the time when operations are to begin, or as to finding oil or gas in paying quantities, the lessee cannot discharge itself from the obligation of the covenant to furnish natural gas for domestic purposes by ceasing its operations when the production of gas ceased from the single well which had been drilled. Boal v. Citizens' Natural Gas Co. (1903) 23 Pa. Super. Ct. 339. A gas lease provided that the lessor should have, free of expense, gas from the wells to light and heat his dwellings, and the lessees agreed to furnish the gas on or before November 15th, and the lease also provided that the lessee should have 12 months to drill a well or thereafter pay a yearly rental of $56 until a well was drilled. Held, that the covenant as to free gas was independent of the covenant as to the time of drilling the well. Indiana Natural Gas & Oil Co. v. Ganiard (1910) 45 Ind. App. 613, 91 N. E. 362. The lessor in a gas lease, stipulating that lessor should have free gas to light and heat dwellings on the premises, or, in lieu thereof, the sum of $20 yearly, in advance, is entitled to the benefit of such stipulation, though no dwelling was maintained on the premises. Indiana Natural Gas & Oil Co. v. Stewart (1910) 45 Ind. App. 554, 90 N. E. 384. free gas for domestic purposes is contingent upon the production of gas from the demised premises, the lessee is under no duty to furnish free gas until gas is produced on the premises and the duty ceases when the wells thereon fail.36 After gas wells have been operated for a number of years, it is a matter of common experience that the pressure becomes reduced and consequently the output is much less. In order to increase the pressure and to secure the gas under the land, it becomes necessary to use compressors or pumps. The effect of the use of such pumps in the lines of the lessee has the effect of creating a vacuum therein and causes all of the gas coming from the well to flow into the lessee's lines and none into those of the lessor by which he takes free gas for domestic purposes. In Bassell v. West Virginia Central Gas Co., a lessor, entitled to free gas ` for domestic purposes, sought to enjoin the lessee's operation of 'such pumps or compressors in his lines upon the ground, among others, 38 that it was an interference with his right to free gas. The court held, however, that although the lessee might artificially accelerate the flow of gas by the use of pumps, the lessor should not be deprived of free 36 Evans v. Consumers' Gas Trust Co. (Ind. Sup. 1891) 29 N. E. 398, 31 L. R. A. 673; Indiana Natural Gas & Oil Co. v. Leer (1904) 34 Ind. App. 61, 72 N. E. 283; Weger v. Western Supply & Wrecking Co. (1916) 199 Ill. App. 34. Where an oil and gas lease provided that "If gas be found in any well or wells, the first party is to have on demand sufficient gas for domestic purposes on said premises free; the second party is to have the remainder, together with all gas from oil wells," held that the lessor, who was the party of the first part, was not entitled to be supplied with gas otherwise than from producing gas wells, and no obligation to supply him with gas arose from its being found in oil wells. Weaver v. Graham (1921) 109 Kan. 450, 199 P. 924. Where a gas lease permitted lessee at any time to reconvey his grant and avoid the lease, by retaining the lease the lessee kept operative covenants therein requiring it to pay a yearly sum in lieu of furnishing gas for lessor's premises. Indiana Natural Gas & Oil Co. v. Harper (1912) 50 Ind. App. 555, 98 N. E. 743. 37 (1920) 86 W. Va. 198, 103 S. E. 116, 12 A. L. R. 1398. 38 The principal other ground urged in support of the lessor's bill was the claim that there is an implied covenant in an oil and gas lease, reserving gas well rentals and containing a free gas clause, against the rapid exhaustion of the gas by the use of pumps, thereby shortening the period for payment of rentals and the furnishing of free gas. It was held, however, that the lease contained no such implied covenant. gas, and that such free gas need not be furnished from wells on the demised premises, but might be furnished from other sources.3 In Pittsburg & West Virginia Gas Co. v. Nicholson,40 a lessee sought to be relieved from the duty of furnishing free gas to the lessor, where the operation of compressors became necessary to accelerate the flow of gas and the effect was to cut off the lessor's supply of free gas, on the ground that the furnishing of free gas to the lessor could only be accomplished by the burdensome expense of installing an additional pump in the line of the lessor. The court held, however, that the lessee who had taken gas and furnished free gas to the lessor when the supply was plentiful, and to his advantage, could not be relieved of the duty when it became burdensome. § 192. Royalties for casing head gas Where a lease merely contains a provision for rental for producing gas wells and a royalty for oil produced, without any provision relative to rental or royalty for gasoline produced from casing head gas, the question has often been raised as to whether the lessor is entitled to any rental or royalty for the gasoline so produced.41 In absence of some 39 In Bassell v. West Virginia Central Gas Co. (1920) 86 W. Va. 198, 103 S. E. 116, 12 A. L. R. 1398, Poffenbarger, J., said: "But in no event, nor under any circumstances, can the lessee escape the obligation of its contract to furnish free gas for domestic use in the four dwelling houses upon the land, if required, while it operates any well under the lease. The lessor's right to such gas, although collateral, subordinate, and incidental in character, is as clearly conferred as that of the lessee to produce the gas from the land. While the lease says he shall have such supply from any well drilled upon the premises, this part of the provision is not of the essence of the stipulation. Gas from any other wells or from any of the lessee's gas lines in the neighborhood will answer his purposes just as well as the gas from the wells on his land, provided he obtains it in sufficient quantity and for the same period of time that such wells would furnish it." 40 (1921) 87 W. Va. 540, 105 S. E. 784, 12 A. L. R. 1392. 41 Locke v. Russell (1915) 75 W. Va. 602, 84 S. E. 948; Wemple v. Producers' Oil Co. (1919) 145 La. 1031, 83 So. 232; Twin Hills Gasoline Co. v. Bradford Oil Corporation (D. C. 1919) 264 F. 440; Wolf v. Blackwell Oil & Gas Co. (1920) 77 Okl. 81, 186 P. 484; Withington v. Gypsy Oil Co. (1918) 68 Okl. 138, 172 P. 634; Hammett Oil Co. |