37 Ind. App. 351 | Ind. Ct. App. | 1905
Action by appellant to recover acreage rental upon a natural gas lease. Upon a special finding of facts the court stated a conclusion of law in appellee Diamond Plate Glass Company’s favor. The correctness of the conclusion of law is the only question presented.
The facts found are in substance as follows: On July 23, 1889, appellant owned in fee and was in possession of certain land, and on that date, her husband joining, she executed to the Diamond Plate Glass Company, of Indiana, a gas-and-oil lease on the land, in two parts, the lease providing, among other things, that the lessee should have the right of ingress and egress to and from the tracts on which wells were to be located, the right to use the highways adjoining any part of the premises for the laying of mains and pipes for the transportation of gas, the lessee “to deliver free of charge to said first party, during the continuance of this lease, natural gas necessary for domestic use for dwelling-house now on said premises, or that may be hereafter erected thereon, not exceeding one,” the gas to be delivered in a main or pipe at the house, the lessee to furnish, at the railroad, pipes necessary for conducting the gas and a superintendent to lay the same, the mains to belong to the lessee, the lessor to lay the pipes and make all necessary attachments. All gas obtained should be used in Howard county. “This grant and lease shall be deemed to commence at and run from the date of the signing hereof, and shall be deemed to have terminated whenever natural gas ceases to be used generally for manufacturing purposes in Howard county, Indiana, or whenever the second party, its heirs or assigns, shall fail to pay or tender the rental price herein agreed upon within sixty days of the date of its becoming
That the rights of the parties to the lease as to its continuance and termination are not the same under the lease before and after the development of the land for gas and oil, we think is plain from the decisions. In Consumers Gas Trust Co. v. Littler (1904), 162 Ind. 320, it is held that the option or right to drill, which seems to have run from year to year, might be terminated by the lessor by his refusal to accept the annual payment for another year, provided that the lessee was given such reasonable notice as would afford him a fair chance to discharge his obligation; and in Hancock v. Diamond Plate Glass Co. (1904), 162 Ind. 146, under a lease providing an annual rental for each producing gas-well, it is held that, if the lessee has taken possession and drilled a well more valuable than the
Counsel for appellant argues that, if this case is governed by the law of the case as declared on the former appeal, such law of the case extends only to the law upon the facts as there pleaded; and that the complaint in that case did not aver possession by the lessee or part performance of the lease, while in this case the complaint avers both.
Judgment affirmed.