Beaverkettle Farms, LTD., v. Chesapeake Appalachia, LLC, No. 4:11CV02631, 2013 U.S. Dist. LEXIS 124509 (N.D. Ohio Aug. 30, 2013)

(plaintiff owns over 4,000 acres and entered into oil and gas lease with company in 2004 that assigned lease to defendant; plaintiff sued to have lease nullified on basis that it did not anticipate use of fracking; plaintiff had earlier transferred some of subject property into conservation easements with state DNR to protect areas around creek and associated tributaries from development; lease agreement barred drilling near creek and associated streams and gave plaintiff right to approve drilling sites; plaintiff construed delay rental clause to require drilling to commence on or before May 5, 2011, but defendant disagreed with that interpretation; in early 2011, defendant notified plaintiff of plans to horizontal drill from another property that would go under plaintiff’s property and that drill site was larger than allowed in lease; plaintiff sought to nullify lease on basis that defendant had not paid in full for delayed drilling on balance of property and that plaintiff had not approved horizontal drill site and that fracking not anticipated in lease; court denied both parties’ motions for summary judgment because genuine issues of material fact exist as to whether plaintiff unreasonably withheld or delayed approval for drill site which means reserves for trial issue of whether defendant properly extended lease beyond primary term; likewise, genuine issue of material fact exists as to parties’ understanding of meaning of “delay rental” as used in lease, so issue of whether defendant required to tender delay rental payments during secondary term to be resolved at trial).