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and on the 8th day of March, 1903, the lease

| The boundary line between the tract leased and the assigument thereof was filed for rec- to the plaintiff and that leased to the defendord in the office of the register of deeds of i ants is the east line of Second addition. Pawnee county, Okl. T. On the 8th day of ! Plaintiff's lease also includes a small tract in March, 1905, La Tourette and wife executed the northwest corner of the tract designated and delivered a second oil and gas lease to

as defendants' leasehold, but in no way afS. W. Lawrence covering a certain tract ly

fects the issues in this case. ing immediately west of the east line of Sec

The defendants having proceeded to drill ond addition, excepting certain lots previous

wells for oil and gas on the tract of land corly sold by La Tourette, but which are not ma

ered by the lease known as Second addition, terial to description or issue in this case.

the plaintiff brought this action to restrain Subsequently, Lawrence assigned an undivid

and enjoin each and all of them from drilling ed one-half interest to the defendants M. M. and S. H. Sornborger, as Sornborger & Bro.

or attempting to drill or permitting other and to the defendant Melrose Oil Company.

persons, companies, or corporations to drill The following diagram fairly represents the

any oil or gas wells upon said tract, excepting location of the lands covered by the leases

certain lots therein described, and from takof the respective parties to this controversy,

ing or marketing any oil or gas from any in so far as they are involved in this cause:

well or wells that may have been drilled by them, other persons, companies, or corporations under and by virtue of any right which said defendants may have obtained to said Second addition, alleging, substantially, that the tract known as Second addition, excepting lots therein described, was so situated with reference to the tract covered by the lease assigned to the plaintiff that, if any oil or gas well or wells were drilled thereon, or oil or gas taken therefrom, the oil and gas

would be drained from under the tract coverLa Tourette's

ed by the lease assigned to the plaintiff to its

irreparable injury and damage, and that upSecond Addition.

on the final hearing of this action plaintiff asked that the defendants be perpetuai y enjoined from drilling upon said tract of land;

and that an accounting might be had of any E. line of Second Addition.

and all damages which the said plaintiff sustained by reason of producing gas or oil wells

which the defendants may have drilled. A Part of Test Oil Co.'s

temporary restraining order granted in the Leasehold E. of La Tour

probate court, on motion of defendants, was ette's Second Addition,

dissolved in the district court upon the and N. of La Tourette's

ground that the petition did not state facts Addition.

sufficient to constitute a cause of action. From the judgment of dissolution, this appeal was taken.

An examination of the petition and motion discloses that the controversy in this case is waged over the construction of plaintiff's lease, and the validity of a certain clause therein. For perspicuity and intelligible construction, we incorporate the lease entire, which reads as follows, omitting acknowledgments, assignments, and recording memoranda thereon:

Defendant's Leasehold.

La Tourette's Addition.

Oil and Gas Lease.

Test Oil Co.'s Leasehold

"Agreement, made and entered into on the 27th day of January, A. D. 1970.), by and be tween Isaac 1. La Tourette and his wife, Armeda H. La Tourette of the town of Cleveland, county of Pawnee and territory of Oklahoma, parties of the first part, and John L. Moran. of Bartlesville, in the Indian Territory, party of the second part, witnesseth: That the said parties of the first part for und in consideration of the sum of sixteen Lundred and fifty dollars to them in hand well and truly paid by the said party of the check mailed to them at Cleveland, Oklahoma second part, the receipt of which is here- Territory, or by check deposited to the credit by acknowledged, and of the covenants and of Isaac V. La Tourette in the First National agreements hereinafter contained, on the part Bank in said town of Cleveland. No well to of the said party of the second part to be paid, be drilled on said.land nearer the section line kept, and performed, have granted, demised, than a point twenty-tive feet from the west leased and let and by these presents. do grant, line on Breer and Anderson lot. Said first demise, lease and let unto the party of the sec- parties hereby further agree that they will ond part, his heirs, executors, administrators ! in and by any deed hereafter executed by or assigns, for the sole and only purpose of them or either of them, for any part of said mining and operating for oil and gas, and of La Tourette's second addition to said town laying pipe line and of building tanks, stations of Cleveland, prohibit any drilling for oil or and structures thereon, to take care of said gas on any land so hereafter conveyed in said products all that certain tract of land sit- Second addition. It is agreed that the said uated in Pawnee county, territory of Okla- second party is to have suficient water from homa, to wit: east one-half of south one-half the premises to run all necessary marhinery; of northwest quarter, section 9, township 21, at any time to remove all machinery and range 8 east,

acres, all that part of fixtures placed on said premises; and further the west half of the south half of the north- upon the payment of one dollar at any time west quarter of section 3, township 21, range by the party of the second part, his heirs, ex8 east, lying north of La Tourette's addition ecutors, administrators or assigns, to the parto the said town of Cleveland and east of La ties of the first part. their heirs or assigns, Tourette's second addition to said town of said party of the second part, his heirs, exCleveland, and a tract of land 100 feet north ecutors, administrators, or assigns, shall have and south and 127 feet east and west lying the right to surrender this lease for cease in the northwest corner of said south one- and determine, and this lease become absohalf of northwest quarter of said section 9, lutely null and void. township 21, range 8 east, — acres. It is "Witness the following signatures and agreed that this lease shall remain in force seals. for the term of one year from this date, and

“Isaac V'. La Tourette. [Seal.] as long thereafter as the above described

"Armeda H. La Tourette. [Seal.] premises shall be operated for the purpose of

“John L. Moran.

[Seal.] producing oil or gas or so long as oil or gas “Witnesses: Tom George. is produced in paying quantities.

"Julia Rogers." "In consideration of the premises the

An examination of the essential conditions said party of the second part corenants and

of the above lease discloses that, for and in agrees : (1) To deliver to the credit of the

consideration of the payment of $1,650, La first party, their heirs, assigns, executors and

Tourette and wife leased unto Joran or his administrators, free of cost in the pipe line

assigns a certain tract of land (not including to which the wells may be connected, the

any part of Second addition leased by these equal one-sixth part of all•the oil produced defendants), therein described, for the sole and saved from the leased premises; (2) to

and only purpose of mining and operating pay one hundred dollars per year for the gas

for oil and gas and of laying pipe lines, and from each and every well drilled on said

of building tanks, stations, and structures premises, the product from which is marketed

there for the purpose of taking care of and used off the premises, said payment to

the products. Said lease was for the period be made on each well within sixty days after

of one year from the date thereof, and therecommencing to use the gas therefrom, as

after as long as the leased premises should aforesaid, and to be paid yearly thereafter

be operated for the purpose of producing oil while the gas from the said well is used. In

or gas, or as long as oil or gas was produced case gas is found in marketable quantities.

thereon in paying quantities. An additional parties of the first part shall have gas for consideration to the lessor, or his assigns, domestic purposes free by making their own

was the delivery in the pipe line to which the connection. Second party covenants and wells might be connected the equal of oneagrees to locate all wells so as to interfere

sixth of all the oil produced and saved from as little as possible with the cultivated por- "the leased premises," and $100 per year from tion of the farm, and well to be begun on said the gas from each and every well drilled on tract above described as 100 by 127 feet with- said premises, the product of which was in thirty days after the well now being drill

marketable. An additional rental was “suffied on Jordan lease is completed. And fur- cient gas for domestic purposes to the lessor, ther to complete a well for oil and gas on or his assigns. in case gas was found in said premises within ninety days from the marketable quantities." Payment of $25 for date hereof or pay at the rate of twenty-five | each additional 30 days, after a certain peridollars in advance for each additional thirty | od. was stipulated to be paid "direct to the days such completion is delayed from the lessors," or by mailed check, or deposit in time above mentioned for the completion of First National Bank at. Cleveland. Party such well until a well is completed. Such pay. į of the second part, or his assigns, reserved ment may be made direct to the lessors or by the right to remove all their machinery and fixtures, and upon the payment of $1 at , cial protection. With this construction we any time to “surrender this lease, and this cannot agree. It is certainly a natural and lease to become absolutely null and void." warranted deduction from the language of Said lease contained the further covenant, the clause upon which plaintiff relies, and and the one upon which plaintiff relies, that the peculiar situation and relationship of "said parties hereby further agree that they the parties, to say that their intention is will in and by any deed hereafter executed clearly expressed in the terms of the coveby them or either of them, for any part of nant limiting the restriction to the conveyance the said La Tourette's second addition to by deed only. Ordinary business precaution said town of Cleveland, prohibit any drilling would reserve Second addition for La Tourfor oil or gas upon any land so hereinafter ette and wife, and, being interested to the conveyed in said Second addition.” It is not extent of one-sixth of the oil output on plainalleged that the defendants ever trespassed tiff's leased premises adjoining, it was only upon the leased land of the plaintiff, or natural for the lessee to conclude that interthat they ever drilled, or attempted to drill, est in the output of the product on both wells thereon, or interfered in any way with tracts by the lessor would preserve his (the plaintiff's possession. Plaintiff alleges, how- lessee's) interests, and that restriction by ever, that the defendants have and will con- deed would prevent the drilling of numerous tinue to drill oil and gas wells upon tbe wells by different lot owners who would not tract leased to the defendants and known be interested in the amount of production on as Second addition, and bases its action to plaintiff's tract. If this was not the intenenjoin the defendants from drilling upon tion of La Tourette and wife, why did they said tract upon that clause in their lease reserve Second addition ? The reservation containing the restriction upon the aliena- must have been for some purpose, and what tion of any portion of Second addition by would be more natural for them than to redeed, and proceed upon the theory that it is serve Second addition to themselves for their a covenant which runs with the land, binding own exploitation, or to await the developall subsequent purchasers or lessees, and ments of the oil and gas supply on plaintiff's prohibits La Tourette and wife, and all per- leased premises? If the lessee desired prosons claiming through or under them, from tection from the business sagacity of the in any way exploiting the gas and oil sup- owners to the extent herein demanded by his ply which may lie underneath the surface assignees, he should have leased the entire of defendant's leased premises.

tract, or conditioned his lease with a coveAs all the agreements between the parties nant that La Tourette and wife should not are merged in the written lease, plaintiff's drill wellson Second addition, or permit contention must stand 'or fall upon the con- others to do so for them, or in case of the struction of its terms. It must be conceded leasing of said tract it should be with the that the fee of the tract known as Second same restriction as that provided for in case addition, and the right to possession, except- of conveyance by deed. Not having done so, ing lots sold remained in La Tourette and the court is now called upon to say that bewife without restriction, except in case of cause La Tourette and wife covenanted that, transfer by deed, and that plaintiff had no in case they should deed any part of Second lease thereon. They could, if so disposed, addition to other parties, they would in such drill a thousand wells upon Second addition conveyance prohibit their grantee from drillwithout violating any of the conditions of ing for oil or gas, they have thereby in legal plaintiff's lease, and, likewise, could they effect prohibited themselves from drilling on do so by their agents. The oil and gas be- Second addition or leasing the same to others neath the surface belonged to them so long without restricting them from drilling thereas it remained there and was under their on. The terms of the covenant will not percontrol, but in case it should escape their mit of such a construction. They are plain, ownership would cease. If, by reason of unambiguous, and certain. Even in case of wells drilled on plaintiff's leased premises, doubt such a construction would be denied. the oil or gas under Second addition would In this country land is one of the chief obflow therein and become subjected to the jects of trade and investment. "Mud and control of plaintiff, it would then become civilization go together." As the latter adthe property of plaintiff; and the same would vances, the transfer of the former becomes be true of Second addition in wells drilled more frequent. Just in the degree that the by La Tourette and wife, or lessees.

It is

temporary owner of a tract of land is perthe subjection to control that determines the mitted to impress his notions or caprices upownership. Westmoreland & Cambria Natu- on the fee restricting its future alienation, ral Gas Co. v. Ira De Witt et al., 130 Pa. 235, just in that degree does it hamper the free18 Atl. 724, 5 L. R. A. 731.

dom and facility of its exchange in trade, and Plaintiff claims, however, that La Tourette destroy that confidence which has given it and wife could not lease Second addition to the reputation of being the subject of safe any one for oil or gas purposes, because and sound investinent. Hence restrictions upthe restriction by deed included restriction on the alienation of the fee in land are reby lease, and that the restriction was for pugnant to trade and commerce, and are a valuable consideration, and for their espe- looked upon with disfavor by the law. Nothing will be taken by implication or intend- sold would certainly not be fulfilled by the ment. New conditions will not be inserted delivery of a lease. Blackstone says that öy construction. The expression of the in- "deeds" serve to convey the property of lass tention of the parties will be gathered strict- and tenements from man to man, and that ly from the terms employed, and the in- they are commonly denominated "convey. quiry at the close of the examination will ances." The word "deed," as used in the be: "Is it so nominated in the bond?"

contract whereby one of the parties obligates The law is jealous of a claim to an ease- himself to make a deed to the other, imports ment, and the party asserting such a claim that the conveyance shall give a sufficient must prove his right clearly. It cannot be title. Parker v. McAllister, 14 Ind. 12, 16. established, by intendment or presumption. The word "deed” is an apt word to signify Minneapolis Western R. Co. v. Minneapolis, the transmission of real estate. Dunham v. etc., Co., 58 Minn, 128, 59 N. W. 983; Polson Marsh, 52 N. J. Eq. 256, 30 Atl. 473, 474. v. Ingram, 22 S. C. 541. In Clark v. De Voe, The common usage and acceptation of the 124 N. Y. 120, 26 N. E. 275, 21 Am. St. Rep. term "deed” undoubtedly means the convey652, it was held that only by the use of plain ance of real estate, and that was the sense and direct language on the part of the gran- in which it was used in plaintiff's lease. tor should it be held that he created a right | Said first parties agree that they will in and in the nature of an easement and attached to by any deed hereafter executed prohibit any one parcel of land as the dominant estate and drilling for oil or gas on any land so hereaftmade the other servient thereto. It is con- er conveyed in said Second addition, is the trary to the well-recognized business policy substantial language of the clause. Conveyed of the country to tie up real estate where the in what manner? By "deed," not by "lease.” fee is conveyed with restrictions and prohibi- A deed of conveyance is a sealed writing, tions as to its use, and hence, in the construc- signed by the party to be charged, which evition of deeds containing restrictions and pro- dences the terms of the contract between the hibitions as to the use of property by the parties, whereby the title to real property is grantee, all doubts should, as a general rule, transferred from one to the other inter vibe resolved in favor of a free use of property, vos, and this is the more usual and specific, and against restrictions. Hutchinson et al. v. though somewhat restricted, meaning of the Ulrich et al., 145 Ill. 336, 34 N. E. 556, 21 word "deed." Am. & Eng. Encycl. of Law (2d L. R. A. 391. Covenants restraining the use Ed.) 9th vol., 91; Bouvier's Dictionary ; Abof real property, although not favored, will bott's Law Dictionary; Anderson's Law Dicnevertheless be enforced by the courts, where tionary. In Eaton v. White, 18 Wis. 519, it was the intention of the parties is clear in their held that a deed was an instrument in writing creation, and the restrictions or limitations duly executed and delivered conveying real esare confined within reasonable bounds. In tate. In Lockridge v. McCommon, 90 Tex. 234, construing such covenants, effect is to be giv- 38 S. W. 33, a deed was held to be the act or en to the intention of the parties as shown instrument by which property in real estate by the language of the instrument, considered is conveyed. In Dudley v. Sumner, 5 Mass. in connection with the circumstances sur- 438, 472, a deed was said to be a method by rounding the transaction and the object had which the title and possession of real estate in view by the parties; but all doubts must is transferred from one person to another. be resolved in favor of natural rights and the In Consolidated Coal Company v. Peers, 150 free use of property, and against restrictions. Ill. 314, 37 N. E. 937, a written agreement by 11 Cyc. 1077, 1078, and authorities therein the owner of coal land giving to another the cited.

exclusive right to mine coal thereon for a It is conceded that there has been no con- term of years was held to be a "lease." In veyance by deed of any portion of Second ad- Malcomson v. Wappoo Mills (C. C.) 85 Fed. dition to the defendants herein, but that their 907, 908, an instrument which gives the exright to drill wells thereon is by virtue of the clusive right to enter upon lands and to dig terms and conditions of an oil and gas lease and mine phosphate, rocks, and other minerfrom La Tourette and wife to S. W. Law- als, and to carry them away and sell for his rence, similar in form to the lease of plaintiff own use for a term of years on a certain royas above set forth. Numerous authorities are alty, was held to be a "lease.” In Ilarris v. cited by counsel as supporting their conten- Ohio Coal Company, 57 Ohio, 118, 48 V. E. 502, tion that the term "deed" in the restrictive 506, it was said: Where the owner of land, clause should be construed to prohibit by for a valuable consideration, grants the land “lease.” Under various statutes, and within described to the other party to a contract for its generic sense, the courts have frequently the purpose and with the exclusive right of held that the term “deed" included a mort- | drilling and operating for oil and gas for a sage, bond, will, and other instruments in certain number of years, the instrument is a Writing under seal; but the term "deed” is "lease" on the land for the purpose and pemore frequently used, however, in a more riod limited therein. In Young v. Ellis, 91 limited sense as meaning a written instru- Va. 297, 21 S. E. 480, it was said: The ownluent duly acknowledged by competent par- ers of land granted to another the right to les conveying the title in land. A stipula- enter thereon to test and search for minerals tion to give a deed to land contracted to be and oil and to mine and quarry thereon ; the second party to have the right to erect against his interests) and by the other party to buildings and machinery for work in mining,

the defendant. But it is for the jury to say, and to pay $25 per year, if minerals were not

from all of the conversation, as to whether or

not the statements made by the defendant are mined, and to pay a royalty on all ores ship- admissions against his interests. ped. The instrument was termed a "lease" [Ed. Note.-For cases in point, see Cent. Dig. and was to continue 99 years. Held, that the

vol. 14, Criminal Law, ss 918, 919, 936.) instrument was a "lease."

4. SANE-EVIDEXCE. From the above authorities, which might

A verdict will not be set aside, for lack

of priilence, where the evidence reasonably supbe multiplied many times, it is clearly seen

ports it. that the oil and gas lease from La Tourette

[Ed. Xote.-For cases in point, see Cent, Dig. and wife to S. W. Lawrence and his assigns vol. 13, Criminal Law, 88 3074-3084.] was such an instrument as the courts will (Syllabus by the Court.) hold to be a “lease," as contradistinguished

Error from District Court, Logan County; from a "deed," and therefore did not come

before Justice Jno. H. Burford. within the clause restricting the conveyance

Ella Loudenback was convicted of manof any portion of Second addition by deed

slaughter, and brings error. Affirmed. prohibiting grantees from drilling for oil or gas thereon. The conclusion upon this ques- Lowry & Lowry and Lawrence & Huston, tion being decisive of the case, it is unneces- for plaintiff in error. W. 0. Cromwell, Atty. sary to determine whether or not the clause Gen., Don C. Smith, and J. H. Cline, for the in plaintiff's lease is such a restriction upon

Territory. the conveyance of land as would be void as against public policy, or whether or not it is BURWELL, J. The defendant, Ella Lousuch a covenant as would run with the land denback, was indicted and tried for murbinding the subsequent owners thereof, or der, and convicted of manslaughter in the whether or not it was a personal one between second degree. the original parties thereto.

It is first insisted that the indictment fails The judgment of the lower court dissolving to charge the crime of murder. The offense the injunction will therefore be affirmed. All is charged in two counts, and it is clear that the Justices concurring, except HAINER, J., the second count of the indictment is insuffiwho tried the cause below, not sitting, and cient to charge murder; and it is. doubtful IRWIN, J., absent.

if the first would stand the test, when measured by the law applicable thereto. Neither

of the counts charges manslaughter in the (19 Okl. 199)

first degree. The language used · purports LOUDENBACK V. TERRITORY.

to charge murder, and the theory of the pros(Supreme Court of Oklahoma. Sept. 5, 1907.

ecution is that manslaughter in both degrees Rehearing Denied Oct. 12, 1907.)

is included in a charge of murder; and this 1. HOMICIDE — INDICTMENT — INSTRUCTIONS

is true as a general rule. But an indictment HARMLESS ERROR.

for murder includes the charges of manWhere cne is indicted for murder, but the slaughter only when such indictment is a indictment, although sufficient to charge man

sufficient indictment for murder, unless the slaughter in the second degree, is not a good indictment for either murder or manslaughter in

language used in the indictment is sufhithe first degree, and the defendant is put on cient to charge manslaughter, independent of trial for murder, and the jury return a verdict the charge of murder. The indictment in quesof manslaughter in the second degree, the defendant cannot complain that he was tried upon

tion sufficiently charges manslaughter in the the theory that the indictment was a good in- second degree, and the rule is, if the language dictment for murder, unless it appears from the used in the indictment charges one of the record that the defendant may have been preju

degrees of manslaughter in such form and diced thereby; and prejudice will not be presumed from the fact alone that the prosecution

manner as to meet the requirement of the and the court proceeded upon the theory that statute, it will be sufficient as to that degree the indictment was a good indictment for mur- of homicide, and the mere fact that the inder.

dictment purports to charge murder is im2. CRIMINAL LAW - APPEAL - HARMLESS ER

material. ROR.

Where one is on trial for a crime which is But it is insisted that the defendant was divided into degrees, and the court commits tried for murder, when the indictment did error in instructing the jury upon the law applicable to the higher degree of such crime, but

not charge that offense. That fact cannot properly instructs the jury as to the lower de- avail, as she was not prejudiced thereby, and, gree, and the jury returns a verdict of guilty conceding for the sake of argument that the of the lower degree, the defendant cannot com

instructions of the court regarding murder plain. One can only complain of errors which may have affected his rights.

were erroneous, the defendant was not con(Ed. Note:-For cases in point. see Cent. Dig. victed of murder. The jury rejected every vol. 15, Criminal Law', $$ 3100, 3161.]

theory of murder and of manslaughter in 3. SAJE-EVIDENCE-CONVERSATIONS.

the first degree, and no complaint is made A prosecution may, on a trial, show by the against those instructions which relate to testimony of other witnesses a conversation be

manslaughter in the second degree. So far tween a defendant and another party; and it may prove the statements made by both the

as the defendant is concerned, the effect is defendant (which are in the nature of admissions | the same as though the indictment had been

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