49 Ind. App. 602 | Ind. Ct. App. | 1911
Appellee brought this suit against appellant to cancel a gas and oil lease and to quiet title to real estate. The court found the facts specially,, stated its conclusions of law thereon in favor of appellee, and entered a decree accordingly.
The errors assigned call in question the court’s ruling on the demurrer to the second paragraph of complaint, the conclusions of law on the, special finding of facts, and the overruling of appellant’s motion for a new trial.
The first paragraph of the complaint is in the usual form to quiet title to real estate. The second paragraph alleges, in substance, that on December-20, 1902, one Weesner was the owner of the real estate in question; that on that day he duly executed an oil and gas lease thereon to the Huntington Light and Fuel Company, which lease was duly recorded, a copy of which was filed as an exhibit with the second paragraph of the complaint; that said lessee thereafter assigned said lease to the Wagner Oil Company, which company duly assigned it to appéllant; that said lease is null and void, and appellant and its assignors have wholly failed to carry out the terms and conditions thereof; that one of the conditions required the holder of said lease to complete three wells within one year from the date of the lease, providing each was a paying gas well, and to complete a well every sixty days until ten wells were drilled, provided each well drilled was a paying well, unavoidable delays excepted; that in June, 1903, a well was put down, which was a paying gas well, but that after using it for. a short time appellant’s assignor plugged the well, and it has remained plugged and unused continuously since that time; that thereupon the lessee abandoned said lease, and no additional wells have been drilled, and said condition subsequent in said lease has been wholly broken; that wells on adjoining lands are
1. Making the lease a part of the complaint as an exhibit does not aid the pleading seeking to cancel the lease and to quiet the title to real estate. The action is not founded on the lease, and the sufficiency of the pleading must be determined independently of the exhibit. Marley v. National Bldg., etc., Assn. (1902), 28 Ind. App. 369; Johnson v. Moore (1887), 112 Ind. 91; Gum-Elastic Roofing Co. v. Mexico Publishing Co. (1895), 140 Ind. 158, 30 L. R. A. 700; State, ex rel., v. Helms (1893), 136 Ind. 122.
On this finding of facts the court stated its conclusions of law, that the lease was abandoned by the lessee and its assignees, and had become inoperative and void because of such abandonment and failure to comply with its terms and conditions, and that the law is with appellee.
It appears from the lease, the- complaint, and the finding of the court, that the development of the territory for oil was as much contemplated by the parties to the contract as the procurement of natural gas, and that failure to develop for oil would thwart the manifest purpose of the lease. Dill v. Fraze (1907), 169 Ind. 53; Consumers Gas Trust Co. v. Littler (1904), 162 Ind. 320; Erie Crawford Oil Co. v. Meeks (1907), 40 Ind. App. 156.
The complaint alleged and the court found that the oil under the leased premises was being drawn off through wells operated by appellant on adjoining lands; also, that appellant never took possession of the premises under its assignment of the lease, and never undertook to operate thereon. From these and other facts the court concluded that because the lease was abandoned it had become void.
The case is different from those where a party accepts money in advance in lieu of development, and then arbitrarily seeks to annul the lease without giving a reasonable time within which to develop.
No available error is shown by the record.
Judgment affirmed.