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DUQUESNE NATURAL GAS COMPANY v. FEFOLT (03/19/64)

March 19, 1964

DUQUESNE NATURAL GAS COMPANY
v.
FEFOLT, APPELLANT.



Appeal, No. 173, April T., 1963, from judgment of Court of Common Pleas of Washington County, No. 5844, in equity, in case of Dequesne Natural Gas Company v. Joseph Fefolt et al. Judgment affirmed.

COUNSEL

Robert L. Ceisler, for appellants.

Paul A. Simmons, with him Tempest & Simmons, for appellees.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Watkins

[ 203 Pa. Super. Page 103]

OPINION BY WATKINS, J.

This appeal is from the judgment of the Court of Common Pleas of Washington County, sitting in equity, in an interpleader, by which it was determined that title to certain oil and gas was reserved to William Marlett, Jr., and Ruth Marlett, his wife, as an estate in land.

The issue, so determined, was whether "... reserving however, to first party, the equal one-eighth (1/8th) part of all oil produced and saved from said premises, to be delivered in the pipe line to the credit of the first party, free of charge ..." and whether the "consideration in full to the grantor for each and every well so producing gas upon the said land shall be as follows: one-eighth (1/8th) part of all gas sold from each well" is personalty or realty and whether it passes with the land or remains the property of the original grantorslessors.

In January, 1925, Joseph Fefolt and Hannah Fefolt, his wife, the appellants, entered into an oil and gas lease with Byers Oil & Gas Company. The real estate involved was conveyed to several successive grantees ending in William Marlett, Jr., and Ruth Marlett, his wife, the appellees, in July, 1960. The Marletts made demand for royalties in December, 1961. This interpleader was filed by the plaintiff company, Duquesne Natural Gas Company, as assignee of Byers Oil & Gas Company. The Fefolts granted and conveyed

[ 203 Pa. Super. Page 104]

"... all the oil and gas in and under the following described premises", but in addition said, "... reserving however, to first party, the equal one-eighth (1/8th) part of all oil produced and saved from said premises, to be delivered in the pipe line to the credit of the first party, free of charge ...". The Fefolts conveyed all their right, title and interest in said land to their daughter, Justine Roper, who in turn conveyed all her right, title and interest in said land to the Marletts.

The Fefolts contend that they conveyed all of the gas and oil rights in the said land to the Byers Oil & Gas Company, so causing a complete severance of all gas and oil in said land. They contend that the reservation of the one-eighth (1/8th) part was personalty only and did not pass with the conveyance to Justine Roper.

The Marletts contend that only seven-eighths (7/8th) of said oil and gas was actually conveyed to Byers Oil & Gas Company. The reservation of the one-eighth (1/8th) interest remained vested as real ...


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