
    Fourth Department,
    January, 1927.
    Patrick O’Meara, Respondent, v. South Penn Oil Company, Appellant.
    Appeal from a judgment of the Supreme Court in favor of plaintiff, entered in the Cattaraugus county clerk’s office on August 20, 1925.
   Per Curiam.

The agreement of April 29, 1916, we construe as extending and supplementing the original lease of the seventy-five-acre parcel. Regardless of the question whether the primary use of the gas produced on the two parcels is the operating use of defendant or the domestic use of plaintiff in the house, it is clear, as found below, that whatever gas is to be used by plaintiff must come from the production on his own farm. The evidence to support the seventh finding of fact, upon which the decision below must rest, is too doubtful and unsatisfactory when read with all the other evidence to warrant the finding. Perhaps because the question of the right to primary use is an open one in this State, defendant offered before the trial and repeats the offer here, to permit plaintiff to connect up the house with the farm gathering line and to use all the gas produced on the farm. We understand that the gathering line is now in one unit covering the entire 109 acres and that a connection made at well No. 4 will enable plaintiff to utilize all the gas produced on his own premises. Since he is at most entitled to no more, we can see no objection to that solution, provided defendant makes and keeps tight the casing heads on all wells and maintains the gathering unit in proper condition. The judgment should be modified accordingly. Certain findings of fact and conclusions of law disapproved and reversed, and new findings made. All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Sawyer, JJ. Judgment modified and as modified affirmed, without costs of this appeal to either party. Certain findings of fact disapproved and struck out and new findings made. Conclusion of law disapproved and new conclusion made.  