a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees, and purchasers or encumbrancers with notice. * * * but the doctrine itself is clearly an application of the maxim, equity regards as done that which ought to be done.
'Identification and appropriation of property. -- In order, however, that a lien may arise in pursuance of this doctrine, the agreement must deal with some particular property, either by identifying it, or by so describing it that it can be identified, and must indicate with sufficient clearness an intent that the property so described, or rendered capable of identification, is to be held, given, or transferred as security for the obligation.'
and at Section 1237:
'The form or particular nature of the agreement which shall create a lien is not very material, for equity looks at the final intent and purpose rather than at the form; and if the intent appear to give, or to charge, or to pledge property, real or personal, as a security for an obligation, and the property is so described that the principle things intended to be given or charged can be sufficiently identified, the lien follows.'
These principles have been recognized in the cases of Sundheim v. Philadelphia School District, 1933, 311 Pa. 90, 166 A. 365 and Hurley v. Ashbridge, 1914, 55 Pa.Super. 523.
In accordance with these principles, the Court is of the opinion that, by the terms of the contract with C. E. Updegraff, plaintiff acquired an equitable interest in the gas which the wells covered by the agreement were capable of producing, contingent only upon Updegraff selling the gas to one of the 'major gas concerns' as provided by the contract. This contingency was satisfied when C. E. Updegraff entered into an agreement with North Penn Gas Company for the sale of the gas.
Plaintiff's interest in the gas has been recognized over a period of many years by all parties concerned. His interest continued and was recognized by C. E. Updegraff following the contract for the production and sale of the gas between North Penn and Updegraff. His interest continued and was recognized by Charles H. Updegraff following the death of his father, C. E. Updegraff. His interest continued and was recognized by defendant, New York State Natural Gas Corporation, following the conveyance of the wells to it by Charles H. Updegraff. It is significant that plaintiff has been paid in excess of $ 23,000 over many years in conformity with the terms of the contract with Updegraff and in recognition of the interest he received thereby.
Plaintiff alleges in his complaint that his interest in the gas has been adversely affected by actions of the defendant. Whether he has been injured and the extent of his injury, if any, present material issues of fact which cannot be determined from the present state of the record. Depending upon the facts presented at the trial, the principles set forth in Young v. Forest Oil Company, 1899, 194 Pa. 243, 45 A. 121, Colgan v. Forest Oil Company, 1899, 194 Pa. 234, 45 A. 119, and Adams v. Stage, 1901, 18 Pa.Super. 308 may provide a proper basis for equitable relief to the plaintiff.
Defendant's motion for summary judgment will be denied.
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