
    No. 605
    SYLVANIA PRODUCING CO. v. YOST AND GORDON, Partners
    No. 19854.
    Supreme Court
    On motion to certify.
    Dock. June 29, 1926.
    707. LEASES — Where an oil and gas lease provides for the payment of a certain sum for each gas well from which gas is marketed, does this provision include casing head gas taken from an oil well?
    Attorneys — Moore, Devaul & Moore, Woods-field, for Pltf.
   This action was brought originally in the Monroe Common Pleas by M. Yost anl W. Gordon partners against Sylvania Producing Company for the payment of money under the terms of a lease.

It appears that Yost and Gordon owned an undivided one-fourth interest in royalty received under an oil and gas lease on a certain farm. The Sylvania Producing Company was the owner of the lease ■ given by one Lindewood to R. R. Denbow. The Company by means of suction lines connected several oil wells and thereby piped the easing head gas to a certain plant for the manufacture of gasoline.

The lease provided in part as follows:

“The lessee to deliver to the lessor in pipe line, the one eighth of all petroleum produced from said premises, and to pay $200 per annum for each gas well from which the gas is marketed or sold - - - payable quarterly” etc.

In this action the partners contend they are entitled to one-fourth of the rental provided in the lease for gas from each gas well.

The judgment of the Common Pleas in favor of the company was reversed by the Appeals upon the ground that the trial court committed error in its charge, a part of which is as follows:

“If you find from a preponderance of the evidence that there was a gas well or gas wells on the lease described, and that defendant marketed and sold the gas therefrom to parties not intended in this lease, then your verdict should be for the plaintiffs. That they recover from the defendant, their share of $200 per year and each and every gas well from which the gas was so- marketed or sold.”

The Company in the Supreme Court contends :

1. That under the terms of the lease it was to pay for gas taken from gas wells only and that easing head gas taken from oil wells was not included in the lease.

2. That the charge of the trial court was not erroneous.  