164 Ind. 563 | Ind. | 1905
Appellee commenced tbis action against appellant to quiet bis title to eighty acres of land situated in Grant county, Indiana, and to secure tbe cancelation of a certain contract or lease whereby be granted to appellant the right to explore said real estate for oil and gas, etc.
^The complaint upon which tbe cause was tried consists of two paragraphs, which for tbe purpose of tbis appeal
Appellant’s answer to the complaint consisted of the general denial, and other paragraphs setting up affirmative matter. Under the issues as joined the cause was tried by the court, which resulted in a decision and judgment in favor of plaintiff to the effect that the defendant had failed to comply with the terms of said contract, and that it had not performed the covenants which it was required to perform, and by reason thereof had forfeited its rights under the contract in suit. The contract by the judgment was
The only error discussed by appellant for a reversal is the alleged error of the court in denying its motion for a new trial.
It is exhibited by the bill of exceptions containing the evidence that upon the trial it was admitted and- agreed by the parties that the plaintiff (appellee herein) was the owner in fee simple of the real estate described in his complaint, that he was in the possession thereof, and that the defendant claims under the contract set out in the second paragraph of the complaint. This contract appears to have been executed by the parties to this appeal on April 9, 1897. Appellee thereunder granted to appellant gas company, its successors and assigns, the exclusive right to drill and operate for petroleum and gas upon the real estate described, situated in Grant county, Indiana, and the further right to transport said products through and over said lands, “together with the right to lay, maintain and operate its main pipe-line, and other lines of pipe and telephone, as, in the judgment of the party of the second part [appellant], may become necessary or proper for the purpose of said second party; the right to excavate for water, and to use sufficient water to run necessary engines to prosecute said business, and the right of way over said premises, and the right to erect, maintain and operate such buildings and machinery upon such lands as may be necessary for the full enjoyment of all the rights herein granted.” The further right to remove buildings before or after the expiration of the contract was granted to said second party (appellant herein). The second party, its successors and assigns, was to have and hold said premises for said purposes only
The evidence given at the trial discloses the following: Appellant failed to drill any well or wells on the. land in controversy, but continued to make payments under the provisions of the contract necessary to continue it in force to July, 1902, all of which payments made prior to that time appellee accepted. The well rental which matured on July 1, 1902, was paid by appellant’s making a deposit of the amount due in the bank at Fairmount, subject to the order of appellee, by the means of a bank check, which the bank received, and credited on its books, the .amount thereof to appellee, of which payment the bank about July 15, 1902, notified appellee, but he declined to receive or accept the money. As shown, sometime in July, 1902, he notified the bank not to receive any more money for him of appellant, and about the same date for the first time notified appellant company that he would not accept the instalment of July 1, 1902, and further informed it that he .would receive no payments to continue the contract or lease in force, but would proceed to quiet his title to the premises. Sometime after July, 1902 — the exact time not being shown by the evidence, but prior to January 1, 1903 —an agent of appellant came to see appellee to ascertain why the latter desired to discontinue- the lease, and in a conversation with appellee the agent stated that he was thinking about setting stakes on the land, but appellee notified him not to do so, for, if he did, he would be a trespasser. Sometime in December, 1902, or January, 1903, prior to the commencement of this action, he was informed, through an agent of the gas company, that he had some money for him, but he notified the agent that he would not
1. Appellee apparently construed the lease or contract as awarding him the right to refuse to accept payments of the well rentals, and thereafter arbitrarily to terminate the rights of appellant under said contract, and proceed to quiet his title to the premises in controversy, without allowing appellant a reasonable time to explore or develop after it had been notified of his purpose to decline in the future all payments of well rentals. This is evident from the facts alleged by him in the second paragraph of his complaint, and further by his acts and declarations as shown by the evidence. Such a construction of the lease we can not sanction. Had he in June, 1902, when he first decided to terminate the lease, notified or warned appellant that in the future he would decline to accept payments of the stipulated rentals, and had appellant thereafter, under the circumstances, failed to explore the premises within a reasonable time, in order to discover the existence or nonexistence of gas or oil thereunder, then within the rule asserted in Consumers Gas Trust Co. v. Littler (1904), 162 Ind. 320, Consumers Gas Trust Co. v. Crystal Window Glass Co. (1904), 163 Ind. 190, and Consumers Gas Trust
2. By the provisions of the contract the rentals were to be due on the 1st of January and the 1st of July of each year, and it was stipulated that payment thereof might be made within ten days after maturity, either direct to appellee, or by depositing the same in the Fairmount Bank at Fairmount, subject to his order. The payment of the July instalment of rent appears to have been made within the time prescribed, by appellant’s depositing the amount thereof in the bank designated to the credit and order of appellee;, hence it was not material whether the deposit was made in lawful money, or in checks or drafts, as it was accepted by the bank, and the amount thereof placed to the credit of appellee, subject to his order, thereby enabling him to draw the money from the bank when he desired. Yoke v. Shay (1899), 47 W. Va. 40, 34 S. E. 748; Friend v. Mallory (1902), 52 W. Va. 53, 43 S. E. 114. Depositing the money in the bank as a payment under the provisions of the contract, without any prior notice by appellee to appellant that the former would decline to accept it, was, under the circumstances, in a legal sense, a payment to appellee, and the effect thereof, within the holding in Consumers Gas Trust Co. v. Lit tier, supra, Consumers Gas Trust Co. v. Crystal Window Glass Co., supra, Consumers Gas Trust Co. v. Worth, supra, would be to excuse appellant from a performance of the condition to explore the premises within the period of time ensuing between July 1, 1902, and January 1, 1903, the time at which the next payment would mature.
3. Whether or not the time which elapsed between January 1, 1903, and the 21st day- of the same month, when this action was commenced, was a reasonable limit in which appellant could have made the necessary explorations or developments of the premises, is, under the circumstances in this case, not a question presented for our decision, for,
Upon no view of the case under the facts is appellee entitled to maintain this action. It follows, therefore, that the court erred in denying appellant’s motion for a new trial, for which error the judgment is reversed, with instructions to the lower court to grant a new trial, and for further proceedings consistent with this opinion.