B. J. Stumpf v. Fidelity Gas Co., a Corporation, Montana-Dakota Utilities Co., a Corporation and Shell Oil Company, a Corporation

Appellant B. J. Stumpf, plaintiff below, brought this action against Fidelity Gas Co., hereafter called Fidelity, and the other appellees, its assignees, as defendants, to procure a decree that an oil and gas lease originally given by plaintiff to defendant Fidelity had been terminated and forfeited, and to recover certain stat *887 utory and other damages because of defendants’ refusal to release their claimed interest in the premises described in the lease. The action, originally begun in the state court, was removed to the court below on the ground of diversity of citizenship of the parties.

The lease in question was executed September 7, 1934, and provided for a so-called “primary term” of three years which could be extended by the lessee beyond the primary term by drilling a commercial oil or gas well below 2000 feet on some point on the Cedar Creek Anticline. The primary term expired September 7, 1937. 1 Under date of September 3, 1957, Fidelity wrote to the plaintiff stating: “As you no doubt know, we have during the past year been drilling a deep test well in the Baker field, which well has recently been completed as a commercial oil well.” It is the theory of the…

Upon Petition for Rehearing

The petitioners-appellees seek a rehearing on the ground that if judgment were entered in this case decreeing termination of the lease at the end of the primary term thereof, this would inevitably withdraw plaintiff’s land from the unit and therefore would affect the absent unit interest owners. In consequence of this premise petitioners assert that the result envisioned by us in our opinion would be altogether impossible. The reference here is to the sentence of the opinion: “If the decree ran against the lease itself only and in no manner purported to deal with the continued existence of the unitization agreement, then the operator under that unit agreement would in no manner be prevented from continuing to operate and extract oil and gas in the manner therein provided.”

It is true that our opinion did make reference to the primary term of the lease; but it was not within the contemplation of the court that if the trial court should grant the appellant relief respecting the lease that such a judgment would decree that the lease terminated at the end of the primary term. The complaint itself shows that forfeiture or cancellation of the lease could…

294 F.2d 886 B. J. STUMPF, Appellant, v. FIDELITY GAS CO., a corporation, Montana-Dakota Utilities Co., a corporation and Shell Oil Company, a corporation, Appellees. No. 16833. United States Court of Appeals Ninth Circuit. August 25, 1961. Rehearing Denied October 11, 1961. Colgrove & Brown, Miles City, Mont., and Gene Huntley, Baker, Mont., for appellant. Raymond Hildebrand, Glendive, Mont., and Armin M. Johnson, Minneapolis, Minn., and Charles N. Wagner, Denver, Colo., for appellees. Before CHAMBERS, Chief Judge, and POPE and HAMLIN, Circuit Judges. POPE, Circuit Judge. 1 Appellant B. J. Stumpf, plaintiff below, brought this action against Fidelity Gas Co., hereafter called Fidelity, and the other appellees, its assignees, as defendants, to procure a decree that an oil and gas lease originally given by plaintiff to defendant Fidelity had been terminated and forfeited, and to recover certain statutory and other damages because of defendants' refusal to release their claimed interest in the premises described in the lease. The action, originally begun in the state court, was removed to the court below on the ground of diversity of citizenship of the parties. 2 The lease in…