13 Ind. App. 680 | Ind. Ct. App. | 1895
This was an action brought by the appellee against the appellant to recover rents alleged to be due her under the terms of a written contract.
The first and second specifications of error in the assignment of errors in this court, call in question the sufficiency of the complaint.' The contract sued on, it is insisted by counsel for appellee, is void for the following reasons: First, ‘ ‘ For the reason that no particular real estate is described therein.” Second, “Because it does not designate any time within which drilling shall be commenced, and consequently, when renting shall accrue, nor when it shall mature.” Third, “Because it does not provide upon what terms the 39 acres should be operated, in case oil or gas was found on the one acre. ”
We think counsel’s objections untenable. The property leased is described as being the south-east quarter of the south-east quarter of section twenty-three, and as being situated in the civil township of Harrison, in Blackford county, Indiana. The congressional township and range are not given.
In Mossman v. Forrest, 27 Ind. 233, the supreme court held that the courts take judicial notice of the geography of the country, and in the cases of Board
When lands are described as being within the State
It is contended by counsel for appellant that the contract grants to appellant the right to enter and drill for gas or oil upon but one acre of the forty described, while counsel for appellee insist that the right is granted as to the entire forty acres, and that appellant’s right to drill and the amount of land for which it agreed to pay a yearly rental was not limited to one acre. The contract entered into between the parties reads as follows:
‘£ In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, Ejfie Blake, of Hartford City, Indiana, of the first part, hereby grants*684 unto Lyman C. Scott, second party, all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and operating for oil or gas, and to erect and maintain all buildings and structures, and lay all pipes necessary for the production and transportation of oil or gas taken from said premises.
“Excepting and reserving, however, to the first party, one-eighth part of all oil produced and saved from said premises, to be delivered in the pipe line with which second party may connect his wells, namely:
“All that certain lot of land situated in the township of Harrison, county of Blackford, in the State of Indiana, bounded and described as follows, to-wit:
“S. E. \ of the S. E. \ of section 23; party of first part leases one acre anywhere out of this above described land for a test well, and if oil or gas is found, then party of second part has the balance of this above land to drill at the same royalty as the within lease, containing-acres, more or less.
“To have and to hold the above premises on the following conditions:
“If gas only is found in quantities large enough to transport, then party of the first part is to receive one hundred dollars for the product of each and every well so transported, and also free gas for dwelling on the above described land, for heating and lighting purposes, also for domestic purposes.
“Whenever first party shall request it, second party shall bury all oil and gas lines, and pay all damages done to growing crops, by reason of burying and removing said pipe lines.
“The second party shall have the right to use sufficient gas, oil or water, to run all machinery for operat*685 ing said wells, and also the right to remove all its property at any time.
“Party of second part agrees to commence operation within thirty days, and to complete a well in thirty days after drilling is commenced, and if failing therein, then party of second part is to pay annually thereafter five dollars per acre until said well is completed, and if failing therein, then this contract is to become null and void.
“It is understood between the parties to this agreement, that all conditions between the parties hereunto shall extend to their heirs, successors, executors and assigns.
“In witness whereof, the parties hereto have hereunto set their hands and seals, this 3d day of May, 1893.”
The right granted is absolute to take all the oil and gas in and under thó entire forty acres described, unless that right is limited by the words, which immediately follow the description of the property, viz: “Party of first part leases one acre anywhere out of the above described land for a test well, and if oil or gas is found, then party of second part has the balance of this above land to drill at the^same royalty as the within lease. ”
It is insisted by counsel for appellee, that if it is held that the original grant is limited by the clause last quoted, then no effect can be given to other parts of the contract, especially that wherein it provides that the “Party of second part agrees to commence operation within thirty days, and to complete a well in thirty days after drilling is commenced, and if failing therein, then party of second part is to pay annually thereafter five dollars per acre until said well is completed, and if failing therein, then this contract is to become null and void.” And that courts will not presume that parties in entering into contracts have inserted therein pro
We think the rule is settled as elementary, that if a contract is • susceptible of two constructions, that one must be adopted which will give force and effect to each and every provision contained therein, and not the one which will give force to but a part of the provisions, thus discarding and giving no effect to others. A contract must be considered and construed as an entirety, and for that reason the law assumes that nothing has been inserted therein, except what is a part of the agreement entered into. As said by this court in Learned v. McCoy, 4 Ind. App. 238: “In the interpretation of a contract the real intention of the parties should be the aim, and the instrument should be construed as a harmonious whole, and in such a manner as to give effect to every- provision when this can be done. Courts will not presume that parties intended to use any meaningless provisions, unless compelled to.”
We think the intention of the parties, as expressed by the contract before us, was that appellant should have the right to take all of the gas or oil in or under the entire forty acres, if gas or oil in paying quantities was found in or under the same; that appellant could select any one acre out of the forty upon which to drill a test well for the purpose of ascertaining whether or not gas or oil was to be found there in paying quantities; that the drilling of this test well was to be commenced within thirty days from the date of the making of the contract, and to be completed within thirty days after the drilling commenced, but that if appellant failed to commence drilling within the time agreed for, or failed to complete the well within the thirty days after drilling was com
By the second and third paragraphs of its answer, appellant sought to relieve itself from liability under the
The statute, sections 5116 and 5117,R. S. 1881 (sections 6961 and 6962,Bums Rev. 1894), provides that a married woman shall have no power to encumber or convey her real estate, except by deed in which her husband shall join with her. And by the latter section it is provided that “all the rents, issues, income and profits” of her real estate £ £ shall be and remain her own separate property, and under her control, the same as if she were unmarried.”
The natural gas and oil, after they are brought to the surface from their natural reservoirs under the soil, are personal property, we think, clear; but whether it is to be considered as a part of the real estate while in the earth is the question presented by these answers; for if it is a part thereof appellee could not, without her husband joining, make a valid contract which would take away or diminish the value of the real estate itself. That growing timber, stone before quarried, and coal, lead and iron, before mined, are a part of the realty itself, is so well settled that we deem it unnecessary at this time to cite authorities. Oil and gas are natural products, and their source is in the soil or rocks of the earth. True, they are like water, liquid in their nature, and they are also like water, mineral. It is said that water, oil and gas should be classed by themselves, and are termed minerals ferae naturae.
In Westmoreland, etc., Gas Co. v. De Witt, 130 Pa. St. 235 (249), it is said: £ £ Gas, it is true, is a mineral, but it is a mineral with peculiar attributes, which require the application of precedents arising out of ordinary mineral rights, with much more careful consideration
The adjudications seem to be that on account of the fugitive and wandering existence of gas, oil and water in the earth they are not subject to absolute ownership; that they belong to the owner of the land and form a part of the land itself so long as they are in or on the land, but when they escape and go into or upon other land his title thereto is lost.
In Westmoreland, etc., Gas Co. v. De Witt, supra, the court says: £ £ They belong to the owner of land, and are a part of it, so long as they are on or in it, and are subject to his control, but when they escape, and go into other land, or come under another’s control, the title of the former owner is gone. Possession of the land, therefore, is not necessarily possession of the gas. If an adjoining, or even a distant, owner, drills his own land, and taps your gas, so that it comes into his well and under his control, it is no longer yours, but his.”
While oil and gas remain in the earth within their natural reservoirs or pockets they are parts of the realty itself as much as are stone, coal, lead or iron or any other solid or substantive mineral, and the sale of the real estate carries with it the ownership to all that lies
In this view of the case, if appellee could sell the gas or oil which might be found in or under her real estate without her husband joining with her, she could also sell the stone, coal, lead and iron which might be found there, or even the soil itself, thus, if not parting with, in fact destroying, the real estate itself.
But if we were to hold that the°gas and oil found beneath the soil is not a part of the land itself the result in this case must be the same, for under the terms of this contract the appellant had the right to go upon the premises not only to sink gas and oil wells, but also to erect and maintain thereon “all buildings and structures and lay all pipes necessary for the production and transportation of oil or gas taken from said premises.” These rights are of necessity exclusive in their nature and would vest in the appellant- rights in the property or real estate itself, and, if valid, might be enforced to the exclusion of the appellee. The statute, sections 5116 and 5117, supra, specially withholds from married women the right to in any manner encumber or convey away their separate real estate except their husbands join with them.
Counsel for appellee insist, however, that the defense of coverture set up in the answer is a personal defense of which the appellee alone could take advantage, and that she does not seek to invoke it here, hence it is waived and cannot be pleaded by appellant as against her. In support of this proposition our attention is called to
It may be assumed as true, for the purposes of this case, that if appellee, her husband joining, had conveyed away the above real estate, after the execution and recording of the contract sued on, then her grantee could not plead the coverture of appellee as a defense to an action brought by appellant to enforce its rights under such contract, hut the question here is whether or not appellant can plead the coverture of appellee as a defense to an action brought by her to enforce a contract to which appellant is a party by assignment from the party who contracted with appellee.
We think it is clear that if appellee had made to appellant a deed of conveyance for her land, her husband not joining, in consideration whereof appellant had promised to pay her the sum of two thousand dollars, in an action brought by her to recover the purchase price appellant could plead want of consideration, resulting from appellee’s coverture and inability to execute a conveyance conveying to him a title. If that he true, then the same defense would he proper in this action.
If the contract sued on could not be enforced against appellee on account of her incapacity to execute it, she cannot over a plea of incapacity have an enforcement in her favor.
A contract which is void as to one of the parties executing it is also void as to the other, hence it cannot be enforced in favor of one unless it can be enforced in favor of the other. Hickman v. Glazebrook, 18 Ind. 210.
The second and third paragraphs of answer were sufficient, and the court erred in sustaining the demurrers thereto.
Judgment reversed, with instructions to overrule the