Epitomized Opinion

Flick brought action to quiet title in himself to 50 acres of land against an oil and gas lease held by the Refining Co. It was proved that the Refining Co. had taken a lease upon 115 acres of land, that Flick’s father, who owned the 115 acre tract, conveyed to Flick the 50 acre tract and that Flick’s father made an agreement with the Refining Co. which provided that certain developments should take place on the remaining 65 acre tract but that no developments should take place on the 50 acre tract without consent of the father. It was also agreed that in the development of oil and gas properties in the 50 acre tract a direct and separate accounting should be made with Flick. He claimed that the agreement should be read as the equivalent of a formal abandonment by the Refining Co. of the lease in respect to the 50 acre tract since the Refining Co. had abandoned the entire lease for two years prior to the said agreement and but for the agreement would have no claim even to the 65 acre tract. Judgment for Flick in the lower court. Held by Court of Appeals in dismissing the petition:

1. In the absence of a forfeiture clause in an oil and gas lease and upon proof of compliance with the terms of said lease, a failure to develop the land leased for a period of two years will not be considered proof of the abandonment of said lease.

2. A breach of the implied covenant in the lease to develop the property would not work a forfeiture of the lease but would give rise only to a right of action of damages by the lessor or his successor.