59 Ind. App. 678 | Ind. Ct. App. | 1915
In the year 1898 the owners of certain lands in Wells County, Indiana, executed a lease on the same to Denton W. Spaulding and Albert P. Spaulding for gas and oil purposes. Through .a subsequent assignment appellant acquired the interests of the Spauldings in the leased premises, and when the assignment was made, a number of producing oil and gas wells were transferred to him. Later, the county treasurer, sold six of the wells, together with their equipment to satisfy certain taxes claimed to have become delinquent, together with costs and charges. Appellee was the purchaser of the property sold, and made claim of ownership of the same. Appellant brought this suit to quiet his title to the property involved in the sale. The answer was in two paragraphs, the first a general denial, the second an affirmative paragraph. There was also a cross-complaint in two paragraphs to quiet title. In each of these pleadings filed by the defendant, it is averred, among other things which are not material in view of our disposition of the case, that the county treasurer offered for sale and sold upon the land where situate “six oil wells located in the southeast corner of the southwest quarter of the land described in the lease, together with the drive pipe, casing, tubing, rods and pumping jacks connected with said six wells.” Trial by the court and judgment for appellee, quieting his title to the property.
The errors assigned call in question the action of the court in overruling appellant’s demurrer to appellee’s second paragraph of answer to the complaint, appellant’s separate demurrers to each paragraph of appellee’s cross-complaint, and appellant’s motion for new trial.
As to the legal force and effect of this contract, there can, we believe, be no doubt when there is coupled with its terms the fact that the wells located thereon became and were at the time of the sale by the county treasurer producing wells. The contract conveyed an interest in land, and the court erred in overruling the separate demurrers heretofore mentioned for the reason that the particular wells
While it is true that the identical question has not been squarely decided in a case of the character of the one under consideration, enough has been said by the courts of this State, as well as by others, wherein kindred questions have been involved, to justify the announcement of the foregoing principle. This court in the consideration of a case involving an agreement in many respects similar to the one here involved, used this expression, “This much can certainly be said: that the shaft drilled in appellee’s land from the surface to the gas-bearing rock was a part of the realty.” Ohio Oil Co. v. Griest (1902), 30 Ind. App. 84, 65 N. E. 534. See, also, Shenk v. Stahl (1905), 35 Ind. App. 493, 498, 74 N. E. 538. It will be observed, however, in these decisions, that the court is considering a part of a well which is producing oil or gas. See, also, Heller v. Dailey (1902), 28 Ind. App. 555, 560, 572, 63 N. E. 490; Graciosa Oil Co. v. County of Santa Barbara (1909), 155 Cal. 140, 146, 99 Pac. 483, 20 L. R. A. (N. S.) 211. We are mindful of the fact that courts have held repeatedly that there is a distinction between gas and oil leases and the usual and ordinary leases for other purposes, and while such leases in the first instance grant to the lessee merely the right to explore for oil and gas, the mere fact that a hole was dug in the earth to which pipes and machinery were attached would not change the character of all such property to that of real estate, but as is said by Mr. Thornton, “The usual so-called lease or option usually gives the person taking it the right to explore on the land for oil or gas or both; and until he finds either one or the other, he has no interest in the land. * * If'the lessee find oil or gas then his so-called lease has ripened into an interest in the land.” Thornton, Oil and Gas (2d ed.) §332a.
Note. — Reported in 109 N. E. 934. As to who may purchase at tax sale and enforce title, see 15 Am. Dec. 684; 75 Am. St. 229. On the nature of interest in oil and gas lease, see 25 L. R. A. 226; 42 L. R. A. (N. S.) 472. Petroleum and natural gas as minerals, see 20 Ann. Cas. 937; Ann. Cas. 1913 B 1214. See, also, under (1) 27 Cyc. 722, 724; (2) 37 Cyc. 1334; (3) 37 Cyc. 1239.