Appeals, Nos. 243 and 244, Jan. T., 1958, from decree of Court of Common Pleas of Clearfield County, May T., 1956, No. 5, in case of C. E. Wingert et al. v. T. W. Phillips Gas & Oil Company. Decree reversed. Equity. Before PENTZ, P.J. Adjudication filed finding for defendant; plaintiffs' exceptions to adjudication dismissed and final decree entered. Plaintiffs appealed.
Luther C. Braham, with him Darrell L. Gregg, Richard B. Kirkpatrick, Norman D. Jaffe, and Galbreath, Braham, Gregg, Kirkpatrick & Jaffe, and Whitsett & Lee, for appellants.
John L. Wilson, with him Rolland L. Ehrman, and W. Albert Ramey, for appellee.
Before Jones, C.j., Bell, Jones, Cohen. Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MCBRIDE
This is an appeal from a final decree in equity. It arises out of a dispute involving a lease of property for the purpose of drilling and production of oil and gas.
William Wingert gave a lease for oil and gas on January 25, 1917 to T. W. Phillips, Jr., on 30 acres of a 46 acre tract owned by him. This lease was to exist for "the term of twenty years and as long thereafter as oil or gas is produced in paying quantities or operations for oil or gas are being conducted thereon."
It provided for a payment of 1/8th of the value of the oil produced and saved from the premises and a payment for the gas at a minimum of $50 per year to a maximum of $200 per year, and further, a payment of $7.60 a year, payable quarterly, so long as there was no drilling for either oil or gas on the premises.
William Wingert died on March 8, 1925 and by the residuary clause of his will the 46 acre tract was left in trust for a period which was terminable in the discretion of his trustees, not however to exceed fifty years. His executors, as trustees, were given power to sell real estate, make deeds and full power and authority to lease, sell or develop all mineral lands, including coal, oil and gas. Hence, the executors had the power to terminate the trust any time within the fifty-year period either by selling the assets or distributing any and all of the res as they deemed most beneficial. These executors, as trustees, on July 27, 1936 made a lease to T. W. Phillips Gas & Oil Company for the same 30 acre tract upon the same terms.
In 1952 no drilling having taken place, the executors, who in the meantime had been paid $7.60 a year, quarterly, by the Phillips Co., sold to the Plaintiffs, C. E. Wingert and Alverta Wingert, his wife, the entire tract of 46 acres which, as noted above, included the 30 acres described in the two leases. The Wingerts later made an agreement with Lloyd I. Wingert for division of any monies received as a result of the leasing of the land for the production of oil and gas.
Although defendant had continued to make the quarterly payments, plaintiffs, as owners, gave defendant notice, in writing, on January 25, 1954, that the lease was terminated and that defendant had no right to enter on the property. Plaintiffs, at the same time however, indicated their ...