
    Hamilton v. Pittock, Appellant.
    
      Lease — Landlord and tenant — Denial of title of landlord.
    
    A lessee of an oil lease, who takes a second lease of the same premises from a person claiming adversely to the original lessor, cannot refuse to pay the rent under the second lease on the ground that the lessor in the first lease had the better title to the land.
    Argued Oct. 31, 1893.
    Appeal, No. 196, Oct. T., 1893, by-defendant, Thomas R. Pittock, from judgment of C. P. No. 2, Allegheny Co., July T., 1892, No. 150, on verdict for plaintiff, John H. Hamilton.
    Before Stekrett, O. J., Green, Williams, Mitchell, Dean and Thompson, JJ.
    Assumpsit on oil lease. Before Ewing, P. J.
    At the trial it appeared that, on Jan. 14,1891, plaintiff made an oil lease for a portion of his land to John H. Gailey. The lease described the land as bounded on one side by Back river, a side channel of the Ohio river, with bars, watercourses and small islands thereunto belonging, containing ten acres, more or less. Gailey subsequently assigned the lease to the defendant. Prior to the date of this lease the heirs of Archibald Hamilton made an oil lease to defendant of certain lands, consisting of three islands in the south channel of the Ohio river, known as the Hamilton islands, containing twenty-five acres more or less. Defendant claimed the prior lease included the land covered by the latter, and that the well was not on the latter lease.
    A large amount of conflicting evidence was admitted as to the question of title and boundaries, high and low water, etc., and as to the location of the well. The lease from plaintiff provided for a rental of $500 for each well on the tract leased.
    The court charged in part as follows :
    “ [Now this is not .a question of actual title between Mr. Hamilton, the plaintiff, and the other Hamiltons. If it was, I will say to you that with the testimony now before us, my impression would be against the plaintiff; that the weight of the testimony, it seems to me, is that there was an island here, a small island, lying along in rear of this land of Hamilton, in the Back river from Neville island, with a distinct channel between them. The filling up of that channel would carry his title over beyond the island, that is my impression; but, as I told you before, that is not the question in this case, and for two reasons —there is a general rule of law founded on good morals and honesty that a man cannot dispute the title of his landlord; having taken a lease of the premises he cannot be allowed to show, while he is in possession, during the period of the lease, that his landlord has no title. He must go out. A man may, if he sees fit, where there are conflicting titles, take a lease from each of the owners of it, and if he is not deceived by assertions in regard to the matter he would have to pay both.] [1]
    “ [In this case, if Mr. Pittock obtained a lease from the Hamilton heirs, who claim adverse title, and probably have one against John H. Hamilton, and being about to bore and boring for oil and gas, and knowing of an outstanding title or claim made in good faith by John H. Hamilton, to be certain of his possession got an assignment of this lease made by John H. Hamilton, then he is bound to pay the amount specified in the lease, if he bored on John H. Hamilton’s lease — if he bored on ground covered by that lease.] [2] [Now, that is the question for you to determine, and not, I repeat, the question as to the title between John H. Hamilton and the heirs of his brother. But you determine whether or not this well is on the land that is included in this description of the forty feet in width, éxtending the full distance of the farm, and then with all its accumulations, bars, watercourses, small islands, etc., thereunto belonging, containing ten acres, more or less.] .[3] The ten acres is not binding, it is simply some indication of what was understood to be included in it, and you will take the case and render the verdict that you think the testimony requires.”
    Verdict and judgment for plaintiff for $550. Defendant appealed.
    
      Errors assigned were (1-3) instructions, quoting them.
    
      James Fitzsimmons, John S. Robb and John H. Mueller with him, for appellant,
    cited: Gill v. Weston, 110 Pa. 312; Caldwell v. Copeland, 37 Pa. 427; Harlan v. Lehigh Coal & Nav. Co., 35 Pa. 287; Scranton v. Phillips, 94 Pa. 15; Kitchen v. Smith, 101 Pa. 452; R. R. v. Sanderson, 109 Pa. 583; Mon-tooth v. Gamble, 123 Pa. 240; Palmer v. Farrell, 129 Pa. 162; Chicago & Allegheny Oil & Mining Co. v. United States Petroleum Co., 57 Pa. 83; Duke v. Hague, 107 Pa. 57; Kyle v. Giebner, 114 Pa. 381; Brown v. Beecher, 120 Pa. 590.
    
      J. W. Hall, J. C. Slack with him, for appellee.
    November 13, 1893:
   Per Curiam,

This case involved a question of fact which was properly submitted to the jury. Neither of the specifications of error is sustained.

Judgment affirmed.  