179 Ind. 243 | Ind. | 1913
This action was instituted by appellee against appellants. The complaint is in four paragraphs. It is alleged in the fourth paragraph that on January 16, 1891, Mary L. Crubaugh was the owner in fee, of a farm, described as the east half of the northwest quarter of section 13, township 21, range 5, in Tipton County, and, on that day, her husband joining, she conveyed by deed to the Tipton Light Heat and Power Company a tract twenty feet square out of the northeast corner thereof; that the deed contained the following provision: ‘ ‘ The grantors agree not to re-lease the remainder of the E. ½ of N. W. ¼ of Sec. 13, Town. 21, Range 5 E., for oil or gas purposes”; that the deed was recorded in February, 1901; that the deed recites a consideration of $200, but no money consideration was in fact paid therefor, and the real consideration for the conveyance was that the grantee and its. assigns should furnish said Mary L. Crubaugh and her grantees of the remainder of the 80 acre tract, natural gas, for domestic purposes, on said farm.
It is further alleged that shortly after the execution of the deed the company drilled a gas well on the farm, but located it eight or ten feet away from the tract twenty feet square; that the well produced large quantities of gas and continues so to do; that there is, and was when the deed was made, a dwelling house and barn situated on the farm about sixty rods from the well.
It is also averred that after executing the deed Mary L. Crubaugh fitted the dwelling for the use of natural gas for domestic purposes and the company thereupon constructed a service pipe line from the gas well to a point near the residence and connected the latter with the pipe line, and thereafter the company supplied the residence with gas without charge therefor as long as she owned the land.
It is further alleged that in April, 1904, Mrs. Crubaugh conveyed, by warranty deed, to appellee, the entire farm
It was adjudged that appellants were entitled to take gas flowing from the well as long as it may flow in quantities suf^ ficient for use and appellants were enjoined from cutting off the supply to appellee’s residence so long as they continue to take gas from the well. Appellants made a motion to modify the judgment, which was overruled. Without reciting the substance of the motion, it is sufficient to say that there was no- error in the court’s action.
It is claimed that the court erred in overruling appellants’ demurrers to the first, second and third paragraphs of complaint. In view of our conclusion reached on the fourth paragraph, it is unnecessary to consider these questions. There is no error in the record that would warrant a reversal and the judgment should be affirmed. It is suggested that since the submission of the cause, Joseph Fields, one of the appellants, and the appellee, have died, and the judgment is therefore affirmed as of the date of submission.
Note.—Reported in 100 N. E. 756. See, also, under (1) 31 Cyc. 288; (3) 2 Cyc. 1013. As to covenants tkat run witli the land, see 82 Am. St. 664.