General rule.

It may be said to be the general rule that one who forces, or attempts to force, a party or a prosecuting witness to withdraw or abandon the prosecution or defense of an action or proceeding, is guilty of contempt of court. Turk v. State (1916) 123 Ark. 341, 185 S. W. 472; Wilson v. Irwin (1911) 144 Ky. 311, 42 L.R.A. (N.S.) 722, 138 S. W. 373; McCarthy v. State (1891) 89 Tenn. 543, 15 S. W. 736; Sharland v. Sharland (1885) 1 Times L. R. (Eng.) 492; Bromilow v. Phillips (1892) 40 Week. Rep. (Eng.) 220; Smith v. Lakeman (1856) 26 L. J. Ch. N. S. (Eng.) 305, 2 Jur. N. S. 1202; Re Muloch (1864) 10 Jur. N. S. (Eng.) 1188, 33 L. J. Prob. N. S. 205, 13 Week. Rep. 278. And see the reported case (SNOW V. HAWKES, ante, 183). See also Whittem v. State (1871) 36 Ind. 196. Compare Webster v. Bakewell Rural Council [1916] 1 Ch. (Eng.) 300, 85 L. J. Ch. N. S. 326, 114 L. T. N. S. 545, 80 J. P. 251, 14 L. G. R. 547, 60 Sol. Jo. 307, 32 Times L. R. 306.

In the reported case (SNOW V. HAWKES, ante, 183) it is observed that the common-law principles of contempt include an attempt to intimidate a party and thereby to prevent him from instituting or defending an action.

In McCarthy v. State (1891) 89 Tenn. 543, 15 S. W. 736, intimidation of a prosecuting witness was considered to be in violation of a statute making abuse of, or unlawful interference with, the process or proceedings of the court, a contempt of court. Application of rule.

In Turk v. State (1916) 123 Ark. 341, 185 S. W. 472, it appeared that one Andrews had instituted an action

against one Wallen. On the day set for the trial Andrews was accosted by Turk, who attempted to dissuade him from proceeding with the suit. Turk called Wallen, and together, by means

of intimidation, they succeeded in driving Andrews out of town. In affirming the conviction of Turk and Wallen of contempt, the court said: "It is universally held that intimidating a witness and preventing his appearance at court, or procuring him to absent himself from the trial, is a contempt of court. Preventing the appearance of a litigant in court, for the prosecution of a suit brought to enforce a right, by intimidation and threats, is such an obstruction of judicial procedure as renders absolutely worthless all process of the court, which is instituted for the enforcement and protection of the rights and the redress and prevention of wrongs of the litigants. It destroys the dignity and power of the court and brings the administration of justice into disrepute." The court added: "The conduct of appellants was a flagrant offense against the dignity and power of the court, whose arm is long enough and strong enough to keep open and unobstructed the way to its door to all who must invoke its authority, which is not limited in the right to punish offenses of this kind except by the infliction of such punishment as is commensurate with the enormity of the offense and calculated to preserve and uphold the dignity and honor of the court and its respect in the confidence of the people."

In Wilson v. Irwin (1911) 144 Ky. 311, 42 L.R.A. (N.S.) 722, 138 S. W. 373, it appeared that, at the instance. of one Irwin, a preliminary injunction issued, restraining Wilson, a neighbor, from maintaining on his premises a dog kennel. While the suit was pending Wilson threatened to put up a fence 20 feet high between his premises and those of Irwin, if made to move his dogs, and on Irwin's persisting in the suit the fence was erected. On final judgment the preliminary injunction as to the dogs and kennels was made perpetual, and Wilson was

required to remove the fence. Appeal was taken from so much of the judgment as related to the fence. In upholding the decision of the court below it was said: "Any obstruction of public justice is a public offense; any effort to thwart justice, or to interfere with its orderly administration, is a contempt of court." And it was added: "Justice cannot properly be administered if litigants are intimidated. The courts must be free, and it is the duty of the court to protect litigants no less than witnesses, that the orderly administration of justice shall not be impeded. The record amply sustains the court's findings of fact, and on these findings he properly required the fence to be removed. It is insisted that Wilson had the right to build a fence on his own land, and build it as high as he pleased; but he had no right to interfere with the administration of justice, and he may be required to remove anything that was built to interfere with justice."

In the reported case (SNOW V. HAWKES, ante, 183) it appears that the plaintiff, who had brought suit for the seduction of his daughter, was met by Hawkes, the defendant's father and surety, in a foreign state, and under threat of arrest and imprisonment was forced by him to sign an agreement to withdraw the suit in question. A statute provides that "every court of record shall have power to punish as for contempt any person whose unlawful interference with the proceedings in any action. shall tend to defeat, impair, impede, or prejudice any party's rights or remedies." This statute is said to compass the same end as the common-law principles of contempt, which include any attempt unlawfully to prevent a person from instituting or defending an action, and Hawkes is held guilty of contempt of court thereunder, his written agreement, procured under duress, constituting an act tending to defeat the rights of the plaintiff.

In McCarthy v. State (1891) 89 Tenn. 543, 15 S. W. 736, it appeared that one Lodge, who lived in Alabama, was the prosecutor, and Armlee and Depew the defendants, in a prosecu

tion for larceny, etc., at Nashville. Lodge had been recognized to appear at the trial. McCarthy went to Lodge's home, repaid to him the stolen money, urged him to compromise, and told him that it would not be safe for him to come to Nashville; that he would have no protection. The court said: "The prosecutor, Lodge, was so far within the jurisdiction of the court as that forfeiture could have been taken against him for failing to appear. He was legally bound to appear and give evidence. McCarthy interfered, and, by exciting his fears, prevented him from doing so." The court considered as directly in point that section of the Code which made the "abuse of, or unlawful interference with, the process or proceedings of the court," a contempt of court.

In Sharland v. Sharland (1885) 1 Times L. R. (Eng.) 492, a defendant in an action for libel was held to be in contempt of court for sending post cards to the plaintiffs, threatening exposure by similar means if the action was persisted in.

In Bromilow v. Phillips (1892) 40 Week. Rep. (Eng.) 220, a motion was granted to commit the plaintiff for contempt of court, for endeavoring to deter the defendant from calling a certain witness, and from continuing to defend the action and prosecute his counterclaim.

In Smith v. Lakeman (1856) 2 Jur. N. S. (Eng.) 1202, 26 L. J. Ch. N S. 305, it appeared that the defendant received a letter, informing him that if the suit went to judgment he would be indicted for swindling, etc. It was held that the charge constituted a clear contempt, for there was an attempt by threat to prevent a party from prosecuting his suit or conducting his litigation in a proper course. The court said that it was no palliation that the defendant had not been in fact deterred from proceeding.

In the case of Re Muloch (1864) 10 Jur. N. S. (Eng.) 1188, 33 L. J. Prob. N. S. 205, 13 Week. Rep. 278, it appeared that Mrs. Chetwynd, a petitioner for dissolution of marriage, received from one Muloch a letter

threatening, if the suit was not withdrawn, to publish "the full truth of the case," etc. The court said: "No one can doubt that the very offering of such a threat to a suitor in this court, for such a purpose, is in itself, and quite independently of its subsequent fulfilment, a contempt of court."

In Whittem v. State (1871) 36 Ind. 196, it was held that the facts of the case did not show any intimidation or abduction of one Emily Risk, who had instituted an action for seduction against Whittem. It was said, however, that if, by threats or intimidation, he had induced her to leave court, or had abducted her against her will, he would have been guilty of a flagrant contempt of court. In enumerating cases of constructive contempt the court specified "any attempt to threaten or intimidate a person from instituting or defending any action," and "the forcible abduction of a witness or party with the view or for the purpose of preventing such witness from testifying in any cause pending in any court, or to prevent such party from

prosecuting or defending any action pending in any court."

But in Webster v. Bakewell Rural Council [1916] 1 Ch. (Eng.) 300, 85 L. J. Ch. N. S. 326, 114 L. T. N. S. 545, 80 J. P. 251, 14 L. G. R. 547, 60 Sol. Jo. 307, 32 Times L. R. 306, it appeared that the plaintiff, tenant of a cottage, had served the defendants with a writ for an injunction to restrain them from damaging his boundary wall. His landlady's agent, at her instance, wrote to him to dissuade him from proceeding with his litigation, and finally threatened to turn him out of his cottage if the writ was not withdrawn. The plaintiff then sought to have the agent committed to prison for contempt of court. The court, however, declared that it was proper for the landlady to protect her interests by exercising her legal right to turn the tenant out of the property at the end of the tenancy. It was the same thing, said the court, as saying, "I will assert my legal rights against you if you choose to go on with your action, which, to my mind, is detrimental to my interest in the property." R. S.

Damages

Headnote by MCNEILL, J.

Messrs. B. B. Blakeney, J. H. Maxey, Hubert Ambrister, Christy Russell, and Leake & Henry for plaintiff.

Messrs. West, Sherman, Davidson, & Moore, for defendant:

The usual and customary royalty in oil and gas leases provides the correct measure of damages.

Paraffine Oil Co. v. Cruce, 63 Okla. 95, 14 A.L.R. 952, 162 Pac. 716; Coal Creek Min. & Mfg. Co. v. Moses, 15 Lea, 309, 54 Am. Rep. 415, 15 Mor. Min. Rep. 544; McIntosh v. Ropp, 233 Pa. 497, 82 Atl. 949; Stark v. Pennsylvania Coal Co. 241 Pa. 597, 88 Atl. 770; Sandy River Cannel Coal Co. v. White House Cannel Coal Co. 125 Ky. 278, 101 S. W. 319, 102 S. W. 320; South Penn Oil Co. v. Haught, 71 W. Va. 720, 78 S. E. 759; Backer v. Penn Lubricating Co. 89 C. C. A. 419, 162 Fed. 627; Midland Oil Co. v. Turner, 102 C. C. A. 368, 179 Fed. 75; Cascaden v. Dunbar, 112 C. C. A. 115, 191 Fed. 471; Lyons v. Central Coal & Coke Co. 239 Mo. 626, 144 S. W. 503.

McNeill, J., delivered the opinion of the court:

This action was commenced in the district court of Washington county to cancel an oil and gas lease held by the Winona Oil Company, and for an accounting for oil and gas produced from said premises. The court rendered judgment canceling the oil and gas lease, and an appeal was taken to this court, being case No. 11,559, entitled Winona Oil Co. v. Barnes, Okla. —, 200 Pac. 981, and the opinion rendered this day affirming the judgment of the trial court. The question of accounting between the parties was continued in the district court, and referred to a referee, who made certain findings of fact and conclusions of law which were approved by the court. The referee found the value of the oil and gas produced from the premises and also the expense for producing the same, and rendered judgment against the Winona Oil Company for the difference between the value of the oil and gas

sold, less the cost of producing the same, $47,171.78.

From said judgment Henry N. Barnes has appealed to this court, and the question involved was argued and submitted with case No. 11,559. For reversal Henry N. Barnes contends that the measure of damages is the value of the oil and gas at the time converted, and contends that the court committed error in deducting from said amount the actual cost of producing said oil and gas.

The Winona Oil Company contends that its liability is the usual and customary royalty to be paid to the landowner. The referee and the trial court held that the damages were the value of the oil at the pipe line, less the amount expended for producing the same. We think the court found the proper measure of damages to be recovered in this case.

The Supreme Court of the United States, in the case of Guffey v. Smith, 237 U. S. 101, 59 L. ed. 856, 35 Sup. Ct. Rep. 526, stated as follows: "On an accounting for oil and gas taken under color of a lease later than that of plaintiff, but without actual knowledge thereof, although the same was recorded, held, that the later lessees were entitled to be credited with the cost of improvements and operation, incurred prior to, but not after, the date on which they were actually notified of the rights of the earlier lessee. The continued taking thereafter was a wilful taking and appropriation of the property of another."

And in support of this principle of law it cited the following cases: Woodenware Co. v. United States, 106 U. S. 432, 27 L. ed. 230, 1 Sup. Ct. Rep. 398; Benson Min. & Smelting Co. v. Alta Min. Co. 145 U. S. 428, 434, 36 L. ed. 762, 765, 12 Sup. Ct. Rep. 877, 17 Mor. Min. Rep. 488; Pine River Logging & Improv.

Co. v. United States, 186 U. S. 279, 46 L. ed. 1164, 22 Sup. Ct. Rep. 920; United States v. St. Anthony R. Co. 192 U. S. 524, 542, 48 L. ed. 548, 555, 24 Sup. Ct. Rep. 333. See also Central Coal Co. v. Penny, 97 C. C. A. 600, 173 Fed. 340; Bender v. Brooks, 103 Tex. 329, 127 S. W. 168, Ann. Cas. 1913A, 559; Gladys City Oil, Gas & Mfg. Co. v. Right of Way Oil Co. Tex. Civ. App., 137 S. W. 171, 182.

The principle announced in Guffey v. Smith, supra, we think, is the correct rule, except that portion of the opinion which says that the continued taking after notice of a claim of another's rights was a wilful taking and appropriation of the property of another.

An examination of the former decisions of the United States Supreme Court cited to support this principle of law are cases involving the measure of damages for extracting ore or cutting of timber from the land.

In the case of United States v. St. Anthony R. Co. 192 U. S. 524, 48 L. ed. 548, 24 Sup. Ct. Rep. 333, the court announced. the principle of law in that kind and character of cases as follows: "A railroad company cutting timber for the construction of its road on public lands not adjacent thereto is liable to the United States for the value thereof, and where there is no intention to violate any law or do a wrongful act, the measure of damages is the value of the timber at the time when, and at the place where, it was cut, and not at the place of its delivery."

If we apply the same principle to the taking of the oil and gas, the rule would be, "where a lessee, with no intention to violate any law or do any wrongful act, takes possession of land under a lease owned by him, and, in good faith, believing in his title, proceeds to develop the premises for oil and gas purposes, and it later develops that his lease was invalid," the measure of damages would be the price of the oil or gas at the surface or in the pipe line less

would be the value of the oil at the surface, less the reasonable cost of extracting it."

The other oil and gas case cited was Bender v. Brooks, 103 Tex. 329, 127 S. W. 168, Ann. Cas. 1913A, 559, which announced the following rule: "The measure of damages for unlawfully taking ore from a mine under an honest mistake as to its ownership is the value of the ore as it was in the mine before disturbed, so that the measure of damages for taking oil from land through mistake as to its ownership would be the value of the oil at the surface or in tanks, less the cost of pumping and tanking it, and not the usual royalties for producing oil."

In our judgment what would amount to a wilful taking of property applicable to persons in possession of land producing mineral ores therefrom, or cutting timber on the land, is not applicable to a person in possession of land producing oil and gas therefrom. The reason for the rule is very apparent. If a person in possession under a mining lease. is producing mineral ore therefrom, and has notice that the landlord considers the lease invalid, or that a third party claims a superior lease upon the land, the party might cease mining the ore, or from cutting the timber, until the title to the ore or timber is determined, without irreparable injury either to the landlord or the lessee; but in case of a person in possession of land producing oil and gas therefrom a different condition exists. If the party in possession shuts in the wells, the oil and gas are liable to be drained by adjacent landowners, or has the risk of salt water ruining the wells, and