
    Detlor et al. v. Holland.
    
      Conveyance of mining right in lands — Does not include gas and oil, when — Instrument granting right of land to produce gas and oil — Not lease of land — Rights claimed by grantee at expiration of grant — Rights of grantor.
    
    1. A conveyance of a mining- right in lands was made as follows: “do hereby grant, bargain, sell and convey to the said Michael L. Deaver, his heirs and assigns forever, all the coal of every variety and all the iron ore, fire clay and other valuable minerals in, on, or under the following described premises, * * * together with the right in perpetuity to the said Michael L. Deaver, or his assigns, of mining and removing such coal, ore or other minerals, and the said Michael L. ' Deaver, or his assigns, shall also have the right to the use of so much of the surface of the land as may be necessary for pits, shafts, platforms, drains, railroads, switches, sidetracks, etc., to facilitate the mining and removal of such coal, ore, or other minerals and no more. ” Held— That such deed did not convey title to the petroleum oil and natural gas in the lands described in the deed.
    2. A person in peaceable possession of real estate under a defective deed, may have his title quieted by action, as against a stranger who makes • claim to such real estate, but has no right or title thereto.
    
      3. A written instrument was duly executed as follows: “do hereby grant unto second party, their heirs and assigns, the sole right to produce petroleum and natural gas from the following named tract of land, * * * specifically granting to said second party for and during the term of ninety (90) days from this date and as much longer as oil or gas is found, operated and produced in paying quantities, with the exclusive right to drill and operate oil and gas wells.’’ Held— That such written instrument is not a lease of the lands, but only a grant of the sole right to produce petroleum and natural gas for the term mentioned; that the grant expired by its own limitation at the end of ninety days, unless within that time at least one well was drilled which produced oil or gas in paying quantities; and that upon failure to drill one paying well within ninety days, there was no right to drill thereafter.
    4. The term of the grant in such instrument having expired, and the grantees still claiming a right to drill under such grant, the grantor has a right to have his title quieted as against such claim, on the ground that the term of the grant has expired, without resorting to the law of forfeitures.
    5. Under such an instrument, the sum paid as a consideration for the grant, need not be returned in order to maintain an action to quiet title.
    6. Expenses incurred by the grantees in drilling wells on the lands after the expiration of the grant, and after notice not to drill such wells, can not be recovered from the grantor.
    7. Such grant being made to four persons jointly, a notice addressed to all of them, to the effect that the grant'has expired, and to keep off the premises, and served on one of them, is sufficient. In such case notice to one is notice to all. Baker v. Kellogg, 29 Ohio St., 663, followed and approved.
    (Decided February 1, 1898.)
    Error to the Circuit Court of Perry county.
    The action in the courts below was brought by Upton Holland, defendant in error, against William E. Detlor and others, plaintiffs in error, seeking to quiet title to eighty acres of land, the possession of which was in the plaintiff below, and the defendants below claimed some interest therein under two several oil and gas leases. The validity of one of the leases depends hpon the construction to be placed upon a conveyance of a mining right in the same lands.
    Issues were joined involving the questions disposed of in the opinion. The material facts of the case, as shown by the record, are as follows:
    Francis G. Deaver made a conveyance of a mining right in said lands to Michael L. Deaver as follows:
    “Do hereby grant, bargain, sell and convey to the said Michael L. Deaver, his heirs and assigns forever, all the coal of every variety and all the iron ore, fire clay and other valuable minerals in, on, or under the following described premises, * * * together with the right in perpetuity to the said Michael L. Deaver, or his assigns, of mining and removing such coal, ore, or other minerals, and the said Michael L. Deaver, or his assigns, shall also have the right to the use of so much of the surface of the land as may be necessary for pits, shafts, platforms, drains, railroads, switches, sidetracks, etc., to facilitate the mining and removal of such coal, ore, or other minerals and no more. ’ ’
    Afterward, Michael L. Deaver made and delivered an oil and gas lease of these lands to one James W. Taylor, claiming that he had title to the oil by virtue of the said mining right. James W. Taylor assigned this oil and gas lease to one of the defendants below, and said lease had not expired by limitation, at the commencement of this action.
    After granting said mining right, Francis G. Deaver died, leaving two sons, one of full age and the other a minor for whom a guardian was appointed in the state of Wisconsin, where they both resided.
    After the death of the father, the two sons by separate deeds conveyed the lands to Upton Hoiland, the plaintiff below. The deed from the son, who was a minor, is signed by himself and his guardian, but there is nothing to show any proceedings in any court authorizing the making of the deed, but Mr. Holland went into possession of the lands under said deeds, and has held the same ever since. The said conveyances and lease were all properly recorded.
    On the twenty-sixth day of May, 1893, Upton Holland and wife, and William E. Detlor and his associates, executed and entered into a written instrument as follows:
    “This lease made and entered into this twenty-sixth day of May, A. D. eighteen hundred and ninety-three, by and between Upton Holland, party of the first part, and W. E. Detlor, James P. Lang, Henry Rosier and William Rosier, parties of the second part, witnesseth, that in consideration of the covenants herein contained and by said second parties to be performed, do hereby grant ulito second party, their heirs and assigns, the sole right to produce petroleum and natural gas from the following named tract of land, situate in Monroe township, Perry county, Ohio, to-wit: The northeast quarter of the northeast quarter of section twenty-seven (27), township twelve (12), range fourteen (14), in said county, containing about forty acres (40), reserving five acres (5) around the buildings to be located by first party, and whereon there shall be no wells drilled by either party, specifically granting to said second party for and during the term of ninety (90) days from this date and as much longer as oil or gas is found, operated and produced in paying quantities, with the exclusive right to drill and operate oil and gas wells, to lay and operate pipe line, the necessary rights of way over premises: the use of enough land on which to preserve the products of such wells; to erect such buildings as may be necessary to carry on such work, the right of sufficient gas and water from the premises to run the necessary engine, reserving to first party all wells now on said premises, the right to remove all machinery, buildings and fixtures, belonging to them and the full rights to release and subdivide said premises.
    In consideration for which the second party covenants and agrees as follows: To use and occupy only so much of said lands as may be actually necessary for the purpose herein granted. 2d To complete one well in addition to the one already on said premises in ninety (90) days from said date, unavoidable casualties excepted, and to continue to complete one well each succeeding ninety (90) days thereafter until four (4) wells have been completed on said premises, provided that oil is found in paying quantities in such succeeding wells. 3d. To pay said party of the first part one hundred dollars ($100) upon the delivery of this lease and to pay said first party his attorney fees herein. 4th. To pay all increase taxes by reason of such oil operations and all damages to fences and growing crops. 5th. To deliver to first party in pipe lines free of charge the one-eighth part of all the oil they may produce and save from said premises. 6th. To pay first party for each well from which gas is obtained and marketed the sum of two hundred dollars ($200) per year, first payment to be made at Corning, Ohio, thirty (30) days after the sale of said gas and thereafter yearly in advance at the same place so long as sale of gas continues.
    
      Provided that if second party shall violate any of the conditions of this lease on their part to' be kept and performed, then this lease shall cease, terminate and be void at the option of the first party, and all moneys paid hereon be forfeited to the party of the first part.
    It is understood by the second party hereto that one M. JL. Deaver claiming the oil and gas under premises prior to this date leased the oil and gas to one J. W. Taylor, said second party accepts this lease knowing said fact and agrees to operate this land and not to recognize said Deaver claim, and to pay all royalty to said first party as herein stipulated, and protect said first party against any loss by reason of any litigation upon the part of said Deaver. In witness whereof, we, the first and second parties, have hereunto set our hands the day and year above written.”
    Said instrument was signed by all the parties, and was duly attested, and was acknowledged by the grantors, but was never recorded.
    After the expiration of ninety days, and after Mr. Holland had notified the grantees that the term of the grant had expired, they drilled one well on said lands, and thereafter drilled another ,well, but always refused to pay plaintiff below any royalty for oil produced, and denied his right to royalty, and claimed all the oil themselves under the James W. Taylor lease. All the wells were drilled without the consent of plaintiff below, and against his protest, both in writing and verbally. The grantees paid the one hundred dollars at the time the grant was delivered, and did not comply with any other condition of the lease. At the time said mining right was granted, petroleum oil was produced in small quantities within ten to twenty miles of these lands.
    : The cause was tried in the circuit court on appeal, and the court stated its findings of facts and conclusions of law separately, and rendered a decree in favor of the. plaintiff' below quieting his title to the lands as against the defendants below, and sustaining the right of the plaintiff below to the oil and gas in said lands.
    A motion for a new trial was made and overruled and exceptions taken, and a bill of exceptions containing all the evidence, was also allowed and made part of the record.
    Thereupon the defendants below filed their petition in this court, seeking the reversal of the judgment of the circuit court.
    
      Elwood Newberry; L. A. Tussing and W. B. Loomis for plaintiffs in error.
    This case was, according to the petition and the decree in the court below, an action in equity, wherein it was sought to set aside, rescind, or rather have “declared null and void,” the oil lease from defendant in error to plaintiffs in error on the sole ground of forfeiture for the breach of conditions in the lease; and all the rights of the defendants below under the lease were by the decree of the court forfeited by injunction and by other equitable relief. This certainly can not be done by the Chancellor. It amounts simply to an arbitrary forfeiture in equity in disregard of the rights of the lessees, stated in the answer. It is not disputed that the plaintiffs in error paid the $100, and drilled oil wells on the land. Justice v. Lowe, 26 Ohio St., 375; Bisham’s Principles of Equity, sec. 181; 10 Wend., 266; Coe v. R. R. Co., 10 Ohio St., 375; Hutcheson v. Heirs, 1 Ohio., 21; Robert v. New Eng. Life Lns. Co., 1 Disney, 362; Mathinet v. Giddings, 10 Ohio, 365; Adams v. Parnell, 11 O. C. C. Rep., 567 to 570; Eichenlaub v. Neil, 10 O. C. C. Rep., 427.
    The plaintiffs in error had drilled, and were operating, oil wells on the land, as shown by the testimony and the finding of facts, at great and continuing expense. Mr. Holland never offered to pay back the $100; and as matter of fact never notified the plaintiffs in error of his intention to rescind. The notice was served on one of the defendants only; and there is nothing- in the record to show that the others were in any way bound by it. Besides, said notice is not a notice of election to rescind at all; but is simply one “to keep off the premises.” There was therefore no notice served on defendants below. Seeds v. Simpson & Knox, 16 Ohio St., 321; Parmlee v. Adolph, 28 Ohio St., 10; Yeoman v. Lasley, 40 Ohio St., 190; Railroad Co. v. Steinfield, 42 Ohio St., 449; Saxton v. Seiberling, 48 Ohio St., 554; Ins. Co. v. Hull, 51 Ohio St., 270.
    Petroleum oil is a mineral; and it is of course a “valuable mineral” — a mineral to be considered the same as coal, clay, etc., when we are discussing property rights in reference thereto. Peart v. Price, 152 Pa. St., 277; Caldwell v. Fulton, 31 Pa. St., 475; Appeal of Stoughton, 88 Pa. St., 198; Westmoreland et al. v. De Witt et al., 130 Pa. St., 235; 109 Pa. St., 291.
    The question simply is, has the defendant in error any title to the petroleum oil under the deeds aforesaid made to him by the heirs of F. G. Deaver, deceased, assuming that said deed is of regular form?
    In the case of Sloan et al. v. Lawrence Furnace Co., 29 Ohio St., 568, it is clearly held that an exception of “all the minerals” can and does mean what it says — that all minerals are excepted. Hartwell v. Camman, 64 Am. Dec., 448; People's Gas Co. v. Tyner, 31 Am. St. Rep., 433; 24 Am. St. Rep., 554; Suffield v. Hue, 129 Pa, St., 94; Foster & Co. v. Runk, 109 Pa. St., 291; Plummer v. Hillside Coal & Iron Co., 160 Pa.St., 483; Brown v. Beecher et al., 120 Pa. St., 590; Wettengel v. Gormley, 160 Pa. St., 559; Gill v. Weston, 110 Pa. St., 313; Funk v. Halderman et al., 53 Pa. St., 229; 11 Minn., 137; Caldwell v. Fulton, 31 Pa. St., 475.
    
      T. M. Potter and Donahue, Spencer & Donahue, for defendant in error.
    As to the contention of plaintiffs in error that Holland is not the owner of this oil and gas, we respectfully insist that they are estopped from making any such defense.
    A tenant is not permitted to dispute the title of his landlord, and when the relation of landlord and tenant is once established by an express act of the parties, the only objection that a tenant can make to his landlord’s title is, that it expired since the making of the lease, or had been transferred by sale on execution, or by operation of law. 3 Ohio, 59-295 ; Bank v. Flour Co., 41 Ohio St., 552; Ensel v. Levi & Bro., 46 Ohio St., 255; Pa. Co. v. Platt et al., 47 Ohio St., 366; 2 Johns, Cas., 233; 1 Rawle, 408; 14 Johns, 224; 32 Mich., 518; 28 Ark., 158; 44 Md., 581; 57 Barb., 148; 61 Pa. St., 491; 58 Barb., 545; 38 Ia., 341; 18 Wall., 436.
    
      This is even a stronger case than the ones cited, for the reason that -plaintiffs in error expressly agreed to protect Holland against Denver’s claim. They at that time being the owner of that claim. Saltus v. Bedford Co., 133 N. Y., 499; 31 N. E., 519; Hyatt v. Ingalls et al., 124 N. Y., 93; 26 N. E., 285.
    Another presumption, we think obtains, that this deed ,was made by proper authority, and, if not so made, has been duly ratified by Thomas N. Deaver, since arriving at full age; and we think the burden of showing the contrary was upon the plaintiff in error. Perkins v. Dibble, 10 Ohio, 434; Lewis v. Bank, 12 Ohio, 132; Klein et al. v. Wayne et al., 10 Ohio St., 223 ; Ilers v. Ins. Co., 2 W. L. B., 333; Clark v. State, 12 Ohio 483; White v. Richmond, 16 Ohio, 5; Iron Co. v. Street, 19 Ohio, 300; Templeton v. Kramer, 24 Ohio St., 554; Brackman v. Hall, 1 Dis., 539.
    This is an action to quiet title. The plaintiff in his petition says: That he is the owner and in possession of certain real estate, and that the defendants claimed some interest in said real estate under and by virtue of the written contract of lease between himself and the defendants, and it is to quiet against this claim that this action is brought. Their answer not only claims title to the oil under the Holland lease, but also under the lease from Deaver, and this Deaver lease' they were the owners of at the time they took the lease from Holland, and expressly agreed in their contract with Holland that they would protect him against any and all claims of that character, and then being the owners of said claim admitted it was inferior to Holland’s title. Dunham & Short v. Kirkpatrick, 101 Pa. St., 36; Schuylkill Navigation Co. v. Moore, 2 Wh., 477; Stoughton’s Appeal, 7 Norris, 198; Gibson v. Taylor, 5 Watts, 34; Armstrong v. Lake Champlain Granite Co., 42 N. E. Rep., 186; Willis v. Natural Gas Co., 130 Pa. St., 232.
    As to written and verbal notice. This provision was in the lease for the sole benefit of the defendant in error. Woodland Oil Co. v. Crawford, 55 Ohio St., 161; Edmunds et al. v. Mounsey, 44 N. E. Rep., 196.
    As to the further objection that he has not returned the money they expended in drilling upon these premises, we think it hardly needs an answer. Their time had expired upon this lease. He had elected to end it, and had done so verbally and in writing. 6 W., 427; 2 Story’s Equity, section 779; 2 Kent’s Com., 334; 8 Wheat. 1; 2 Pomeroy, sections, 592, 745, 753, 762.
   Burket, C. J.

If the title to the oil in the land in dispute, passed to Michael L. Deaver under the conveyance of the mining right from Francis G. Deaver, it is clear that plaintiffs in error acquired a right to the oil under the James W. Taylor lease; but if the title to the oil did not vest in Michael L. Deaver under that conveyance, the James W. Taylor oil lease vested no right to the oil in plaintiffs in error, and they would be driven to some other defense.

The conveyance in question, is what is usually known as a mining- right, and grants and conveys all the coal of every variety, and all the iron ore, fire clay and other valuable minerals in, on, or under the said lands. Do the words “other valuable minerals” include petroleum oil? The deed of the mining right was made in February, 1890, and it must be construed in the light of the oil developments as they then existed in the vicinity of the lands.

Francis G. Deaver, the grantor in the mining right, resided in Wisconsin, and there is nothing to show that he had any knowledge of the existence of oil in or near these lands. Oil was then produced in small quantities within from ten to twenty miles of the lands, but there is nothing to show that the parties to the conveyance had any knowledge thereof.

Said mining right grants in perpetuity, the right “of mining and removing such coal, ore or other minerals, * * * with the right to the the use of so much of the surface of the land, as may be necessary for pits, shafts, platforms, drains, railroads, switches, sidetracks, etc., to facilitate the mining and removal of such coal, ore or other minerals, and no more. The incidents here granted are all such as are peculiarly applicable to the mining of minerals in place, and not to such as are in their nature of a migratory character, such as oil or gas. Nothing is said about derricks, pipe lines, tanks, the use of water for drilling, or the removal of machinery used in drilling or operating oil or gas wells.

A rule of construction in such' cases, which seems correct, is found in the following from The Law of Mines and Mining in the United States by Barringer and Adams, page Í31. “In determining what is included in a lease, the familiar rules of construction are applied. The grant is construed most strongly against the grantor. The whole contract must be considered in arriving at the meaning of any of its parts. Terms are to be understood in their plain, ordinary, and popular sense, unless they have acquired a particular tech ideal sense by the known usage of the trade. They are to be construed with reference to their commercial and their scientific import. This rule is of especial importance when the question arises whether a specific mineral is included in a general designation.”

The words “other minerals,” or ‘‘other valuable minerals,” taken in their broadest sense, would include petroleum oil; but the question here is, did the parties intend to include such oil in the mining right? Taking all the terms of the conveyance in the light of the surrounding circumstances, and in view of the above rule of construction, and upon authority of the case of Dunham & Short v. Kirkpatrick, 101 Pa. St., 36, we conclude that the title to the oil did not pass under said conveyance, but remained in the owner of the soil, and upon his death passed to his heirs.

There is nothing to show that it was the intention of the parties that oil should be included in the word “minerals,” and the easements granted in connection with the mining right, are not applicable to producing oil, and show that oil was not intended to be included in the conveyance. If it had been, apt words would have been used to express such intention.

In the next place it is urged by plaintiffs in error, that the deed from the minor son and his guardian, is not sufficient to pass title to one-half of the land to defendant in error, and that therefore he is not the owner of that half, and has no right to have his title quieted thereto.

This might possibly be so as between the minor son and the defendant in error, but as between the defendant in error and a stranger, such title, when strengthened with possession, is sufficient to support an action for the quieting of the title he has, even though such title should be only possessory. In an action to quiet title, if. the plaintiff shows peaceable possession under a conveyance, even though defective, and the defendant shows no title or right, the plaintiff is entitled to have his title quieted as against such defendant and those claiming under him.

It is also urged that the remedy sought by plaintiff below, was by way of forfeiture of the rights of the defendants below under the written instrument, and that a forfeiture should be first established by action at law, and not by an equitable action to quiet title.

The contract between the parties in this case was not a lease of the lands, but only a grant of the sole right to produce petroleum and natural gas for and during- the term of ninety days from that date, and as much longer as oil or gas should be found, operated and produced in paying quantities; and the parties to whom the grant was made covenanted to complete one well, in addition to the one already on said premises, in ninety days from said date, unavoidable casualties excepted. There were no casualties, hence the covenant was to complete one additional well in ninety days, the term of the grant.

No additional well was drilled, or attempted to be drilled within ninety days, and therefore at the expiration of that time the grant terminated by its own limitation. If one paying well had been completed within the ninety days, the grant would have been extended “as much longer as oil or gas is found, operated and produced in paying quantities. ’ ’ But where no well is drilled within the time ■ limited by the grant, the period of the grant is not extended by the words, “and as much longer as oil or gas is found, operated and produced in paying quantities, ” and in such cases all rights to drill cease at the expiration of the time limited in the grant, in this case at the expiration of ninety days.

The plaintiffs in error having acquired no right to the oil under the James W. Taylor lease, and the grant to them for the production of oil having expired by its own limitation at the end of ninety days, they had no right whatever, as against the defen dant in er ror; and as they claimed some right, he was entitled to have his title quieted as against such unfounded claim, not by way of forfeiting the grant, but by reason of the expiration thereof by its own limitation.

With this view of the case, the petition is broad enough to entitle the plaintiff below to have his title quieted without a resort to the law of forfeiture, although it would seem that under the terms of the instrument, all the rights of the plaintiffs in error were forfeited by reason of the nonperformance of the covenants and conditions contained in the instrument.

It is further urged that the plaintiff below should pay back the one hundred dollars paid to him when the grant or lease was delivered. This sum was paid for the grant for the term of ninety days, and the grantees enjoyed the term without interruption, and the grantor has the right to retain and enjoy the price he received therefor. It is not a case of rescission or forfeiture, but of expiration of the term of the grant.

Again it is urged that the plaintiff below should be compelled to pay to the defendants below the amounts expended by them in drilling wells on the land after the expiration of the grant, and after notice to them not to drill any wells on the land.

The defendants below drilled the wells on the lands of the plaintiff against his will, and after full notice from him not to drill, and in such case they drilled at their peril, and at their own expense, and are not entitled to be reimbursed by the owner of the land.

Some objection is made to the form of the notice and its service. The notice was addressed to all the defendants below, and was served by delivery to one of them on the premises at the well which had been drilled at the time the grant was made, and informed them that the lease expired that day, and notified them to keep off the premises. This was sufficient, and showed that he relied upon expiration of term, and not upon forfeiture.

The grant wa's to all four of the defendants below jointly, and a notice to one joint contractor is binding- upon all. Baker v. Kellogg, 29 Ohio St., 663.

There is no error in the record, and the judgment should therefore be affirmed.

Judgment affi/i^med.  