at the expiration of the period for which the lease was to run, or in the event of an abandonment of the term or a forfeiture, for failing to comply with the covenants or conditions annexed to the tenancy, or a surrender of the lease, all the rights of the lessee are at an end.1

What

§ 168. Lessee's quiet enjoyment Eviction amounts to. -The lessee of an oil lease has an implied covenant of right of entry and quiet enjoyment and while a second lease will not constitute a breach of this covenant, any interference with the possession or working of the lease, by the lessor, will constitute such a breach." The lessor cannot use either the premises or the mineral to the injury of the lessee and where the lessor attempts to use the gas for domestic purposes, he must limit such use to a quantity that will leave sufficient to enable the lessee to carry out the purposes of the lease, and unless he does so his use of the mineral could be prevented altogether.3 The lessor could not even use the oil or gas from a portion of the leased premises, surrounding certain buildings located on the surface and reserved in the lease, for since the lease demised to the lessee all the oil and gas under the surface, a mere reservation of a portion of the surface

1 All rights of the lessee to the oil or gas are terminated either by abandonment, forfeiture or surrender of the lease. Venture Oil Co. v. Fretts, 152 Pa. St. 451; 25 Atl. Rep. 732.

2 Knotts v. McGregor (W. Va.), 35 S. E. Rep. 899. An interference by the lessor with the lessee's possession under the lease will entitle such lessee to a period of time equal to the delay caused by the lessor, in addition to his term. Stahl v. Van Aleck (Ohio), 41 N. E. Rep. 35.

3 The lessor can neither use the premises nor the mineral to the injury of the lessee and where the lessor attempted to use the gas for domestic purposes, he will be refused the right, unless sufficient quantity remains to carry out the purposes and objects of the lease and the intent of the lessee. Fanker v. Anderson, 173 Pa. St. 86; 34 Atl. Rep. 434.

would not affect the validity of the grant.1 Any use of the premises in a way that interferes with the lessee's possession would be a violation of his rights, and where the lease was not a matter of record, a sale, without a reservation of the lessee's right of entry, under his lease, would be a constructive eviction of the lessee."

Loca

§ 169. Implied covenants in To drill wells tion of. Under the rule established by the Ohio courts, an oil or gas lease carries with it an implied covenant, upon the lessee's part, that he will operate enough wells to properly develop the production of the mineral found upon the demised premises, and this implied covenant is capable of enforcement by the lessor, although the lease is wholly silent on the subject. And a somewhat similar rule is applied in Pennsylvania, where it is held that the failure of a lease to provide for the contingency of a test well going dry, is obviated by the implied covenant, which the law would annex to the contract, that the work should be proceeded with, with due diligence."

1 A reservation of the land surrounding certain farm buildings, on a tract covered by an oil and gas lease, will not justify the lessor in drilling and removing the oil or gas, upon or under such reserved tracts. Lynch v. Burford, 201 Pa. St. 52; 50 Atl. Rep. 228.

2 Stahl v. Van Aleck (Ohio), 41 N. E. Rep. 35.

SA sale by the lessor of a tract of land subject to an oil and gas lease, not of record, without a reservation of the lessee's right of entry under the lease, is a constructive eviction of such lessee. Mathews v. People's Nat. Gas Co., 179 Pa. St. 165; 36 Atl. Rep. 216.

4 Allegheny Oil Co. v. Snyder, 106 Fed. Rep. 764.

5 "A lessee is under the implied obligation of putting down enough wells to secure oil to the best advantage of both lessor and lessee, but cannot be compelled to put down more than sufficient wells to obtain oil to compensate for the expenditure." Adams v. Stage, 18 Pa. Sup. Ct. 308. And in Pennsylvania a lease not providing for the contingency of a test well going dry, is held to carry an implied covenant to "proceed with the exploration, according to the usual course of the business." Aye v. Philadelphia Co., 193 Pa. St. 451; 44 Atl. Rep. 555. But it is

But the implied covenant to put down sufficient wells to drain the lessor's premises, demised under the lease, would not be carried to the extent of requiring the lessee to put down wells on any particular portion of the demised premises, for he would be the sole judge of the locality that would be most profitable for him to sink wells upon, and his judgment, in the absence of fraud or bad faith, on his part, would be conclusive upon the lessor.1 This would not be true, however, where the lessor reserved the right in the lease to locate the wells, for in such case he would have the exclusive right to say where they should be drilled; but the lessee could not be held in default in drilling such wells until after the location was first selected by the lessor.2

§ 170. Same- Remedy for breach of. Where the lease specifies the breaches of the covenants that will authorize a forfeiture, the lease cannot be forfeited for a violation of the implied covenant to bore enough wells to drain the land, but the lessor would be confined to an action for damages for the breach of such implied covenant. On the con

3

held in Pennsylvania, that there is no implied covenant to put down additional wells, where paying gas is discovered in the test well, for the effect of the new wells might be to reduce the pressure and prevent the gas from raising in the pipes, which would practically ruin the lessee's property in the gas. McKnight v. Manf'rs Nat. Gas Co., 146 Pa. St. 185; 23 Atl. Rep. 164.

1 Young v. Forest Oll Co., 194 Pa. St. 243; 45 Atl. Rep. 121; Colgan v. Forest Oil Co., 194 Pa. St. 243; 45 Atl. Rep. 119.

2 Where the lessor reserves the right to locate the wells, the lessee could not be said to be in default until such location of the lessor. McKnight v. Gas Co., 146 Pa. St. 185; 23 Atl. Rep. 164.

3 Harris v. Ohio Oil Co., 57 Ohio St. 118; 48 N. E. Rep. 502; Glasgow v. Chartiers Oil Co., 152 Pa. St. 48; Knight v. Manfr's Nat. Gas Co., 146 Pa. St. 185. "Where an oil lease required certain wells to be completed within stated times, and provided that if no well was completed within 30 days the grant should be void unless certain payments were made

trary, if the covenant for additional wells is expressed in the lease, a breach of such covenant may afford the lessor an action for damages, or the right of forfeiture, according to the language of the instrument.1 The measure of damages which the lessor would be entitled to recover for the violation of a covenant to drill sufficient wells to properly test the land for oil, would, ordinarily, be the rent or royalty, which would have resulted to such lessor, had the lessee complied with such covenant, and upon this question expert evidence would be competent as to the probable amount of, or whether any recovery should be allowed."

wells. For the protection of the interest of the lessor,

each and every month, it did not constitute a promise to pay rental, and, on breach of the agreement to complete the wells, no action would lie for recovery thereof." Van Etten v. Kelly, 64 N. E. Rep. 560 (Ohio, 1902).

1 A provision in an oil lease that the lease is to be void, unless a well is completed in a given time, or that unless it is so completed the lessee is to pay a given sum for every three months of delay to so complete the well, does not render the lessee liable for the sum named, on failure to complete the well, for the only remedy of the lessor is a forfeiture of the lease. Snodgrass v. So. Penn. Oil Co. (W. Va. 1900), 35 S. E. Rep. 820. But where one of the conditions of a contract of sale of oil land and a part of the consideration for such sale, is the agreement of the purchaser to complete an oil well in a given time and other wells, if oil is found, a breach of the condition of the contract of sale will afford the seller a cause of action for the damages resulting therefrom, and he is not confined to a forfeiture of the purchaser's right to bore for oil. Ammons v. South Penn. Oil Co., 35 S. E. Rep. 1004.

2 The breach of a contract in a gas lease, to test the land for oil, before abandonment of the lease, will entitle the lessor to recover, as damages, the amount of royalties that would have resulted from a compliance with the lease. McClay v. West Pa. Gas. Co., 201 Pa. St. 197; 50 Atl Rep. 978.

3 And on the construction of a clause in an oil and gas lease, providing for royalty on merchantable gas, expert evidence is competent as to the effect of the flow of gas upon the production of oil, as affecting

there are certain express covenants in oil and gas leases that are construed by the courts as conditions, essential to the enjoyment of the estate by the lessee and for a breach of which, such estate is held to terminate. A condition as to the boring of a test well applies as well to the place where it is to be located in case the place is provided for - as to the time within which such well is to be completed,1 and if the lease mentions the property on which the well is to be put down, a failure to drill such well at the place provided for is held to avoid the lease the same as though the well had not been completed within the time stipulated in the lease. But where either the time or place is to be specified by the lessor, until he has indicated his election in this regard, the lessee could not be held to be in default.4

§ 172. Alternative provisions Working or payment of fixed sum. It is not infrequent in the oil and gas sections for the lease to contain alternative covenants or provisions, looking either to the boring of the wells provided for within a given time, or the payment of a fixed amount for an extension of the period to comply with such a cove

the lessor's right to the royalty stipulated for. Shewalter v. Hamilton Oil Co. (Ind. 1902), 62 N. E. Rep. 708.

1 The condition applies as well to the land drilled, as to the time when it is to be done. 159 Pa. St. 16; 28 Atl. Rep. 293.

where the well is to be Cleminger v. Glass Co.,

2 Where the lease provided the exact property on which a test oil well should be drilled, a failure to drill it on the property provided for will avoid the lease. Carnegie Nat. Gas Co. v. Phila. Co., 158 Pa. St. 317; 27 Atl. Rep. 951.

3 A clause that lessee is to commence and complete a well on the property in a given time, amounts to a condition precedent to the vesting of any estate in the lessee, and a failure to do so will constitute a forfeiture of his rights, which can be enforced by the lessor. Huggins v. Daly (W. Va.), 99 Fed. Rep. 606; 48 L. R. A. 320.

4 McKnight v. Gas Co., 146 Pa. St. 185; 23 Atl. Rep. 164.