30 Ind. App. 685 | Ind. Ct. App. | 1903
The appellee sued the appellant to quiet his title to certain real estate in Blackford county. The appellant’s demurrer to the complaint for want of sufficient facts was overruled; and the appellee’s demurrers to each of three paragraphs of answer were sustained.
The complaint showed that the appellee being the owner in fee simple of the land in question, he and his wife, whom we will call the lessors, entered into a contract in writing February 8, 1890, with the appellant’s assignor, a corporation, which we may designate as the lessee. By the terms of this contract (so far as they need be stated) the lessors granted, demised, and let to the lessee, its successors, and assigns “for the purpose and with the exclusive right of drilling, operating for petroleum oil and gas,” the tract of land in question. The lessors granted the lessee the right to remove any and all buildings, machinery, or fixtures placed on the premises by the lessee, either before or after the termination of the contract, and the lessors reserved the right to use and enjoy the land for tillage, except such part as might be necessary for the purposes specified, no
The complaint alleged that the appellant, February 4, 1900, drilled and sunk a well on the premises, which resulted in finding gas therein in paying quantity; and immediately upon the completion of the well, the appellant closed and anchored it, so as to prevent the escape of gas therefrom, “and did not, nor has it ever, nor has anyone under said lease produced any gas or oil from said premises, nor has the defendant or any other person or corporation transported or used any gas from said premises for manufacturing purposes or for any other purpose, nor has the defendant or any other person or corporation under said lease produced or saved any oil from or upon said premises.” It was further averred, that at the time of the execution of the lease the lessee had a gas line near said premises, and soon thereafter the appellee, at his own cost, laid a service-pipe from that gas line to the two houses mentioned, and thereafter he used gas therefrom in the houses for domestic purposes, and he continued so to do until February Y, 1900, at which time he disconnected his service-pipe from this gas line, and thereafter lie did not use any gas from any pipe-line or from any source belonging to the lessee or the appellant, and since that date he has not used any gas by reason of or pursuant to or under the terms of the lease; that from the time of the execution of the lease, on the 1st of January and July of each year, the lessee and the appellant paid the appellee $25, under and pursuant to the terms of the lease, the last of such payments being made July 1, 1899, which was for the six months then ensuing. It was alleged that the land in question is within the gas-producing territory, from which gas could have been produced in large quantities during all the time after the execution of the lease, which was known to the lessee and the appellant during that time, and the lessee and the appellant during that period had been producing
The first paragraph of answer was in most respects a recital of the essential facts of the complaint. It was also alleged that the appellant, in January, 1900, took actual possession of the real estate, with the knowledge of the appellee, and on January 30, 1900, completed the gas-well, which would produce about 2,000,000 cubic feet of gas per day, and which was completed by the appellant at a cost of about $1,000; that April 7, 1900, the appellant tendered and offered the appellee the $100, as mentioned in the complaint, for the term of one year from January 30, 1900; but the appellant never used any gas from the well before the date of this tender, but retained the gas for future use of the appellant for manufacturing purposes; and that at the time of the tender the appellant offered and proposed to
No oil was found on the premises, and the case involves the construction of the provisions of the contract relating to gas. Two kinds of compensation to the landowner, called rent and rental, were provided for with reference to gas. There was a definite term of ten years, during which the lessee was not obliged to drill any gas-well, but, in case of failure to use gas for manufacturing purposes, the landowner was to be compensated to the extent of one-half the annual value to him of one well in use by two semiannual payments of $25 each. The lessee was to make these semiannual payments “during the term herein specified,” until .the lessee should drill a well and begin to use gas therefrom for manufacturing purposes. Then, if gas were found in paying quantities sufficient for manufacturing purposes, and if it should be used by the lessee for such purposes, the full consideration to the lessor was to be $100 per annum for each gas-well, from the time the lessee began to use gas therefrom for manufacturing purposes. So the rent of $100 per annum was not to commence until a well was drilled which produced gas in paying quantities sufficient for manufacturing purposes, and the lessee began to use the gas therefrom for such purposes; and the rental of $50 per annum was to be paid until such well was drilled and
The term mentioned as such specifically in the habendum was a term of ten years from the date of the contract. It was further provided that the lessee should have and hold as much longer than ten years as gas should be found in paying quantities, or the rental should be paid as provided for in the lease. It was not contemplated that the lease should continue without rent. The rent of $50 per annum would not continue, in any event, longer than ten years; and the rent at $100 per annum would not commence until the lessee should begin h> use gas for manufacturing purposes. "Within the period of the definite term of ten years the lessee might drill a well, and cap and anchor it, and preserve the gas, and save itself from the obligation to pay the rental of $100 per annum, being obligated only for the rental of $50 per annum..
The contract should be construed upon the theory that the parties intended its provisions to be consistent with each other, and they should be made to harmonize, if possible, by keeping in view the controlling intent. If at the end of the definite term no well had been drilled, there would be no provision for rent thereafter. The rent of $100 per annum could not commence with the mere drilling of a well capable of producing gas in paying quantities for manufacturing purposes, and the appellee was not bound to be content with a rental of $50 per annum longer than the ten years. If, at the end of ten years, such a condition had not arisen pursuant to the terms of the contract as to entitle him under the contract to the larger rental, he was not bound by the contract for a longer period than the ten years. He might rightfully then regard the principle and essential consideration of the contract as having ceased to be longer existent, and might relinquish the incidental benefit of free gas for his dwelling-house, and declare the contract ended. The hardship suffered through the large expenditure for
Whether or not the appellant may recover compensation for the materials left by it in or about the well, or may remove such materials, are not questions in this case.
Judgment affirmed.