162 Ind. 132 | Ind. | 1903
Appellants sued appellees to recover damages for the failure of the latter to furnish natural gas for domestic use under a contract executed, as party of the first part, by Sarah A. Trott and Hannah E. Mendenhall and their respective husbands, and the Diamond Plate Glass Company, party of the second part. By this contract the right was granted to the said second party to have ingress and egress to and from one acre of ground, described by metes and hounds, situate in Howard county, Indiana, for the purpose of drilling and operating a gas-well, etc. In consideration of this right the second party agreed to furnish free to the first party, during the continuance of the contract, natural gas necessary for domestic use for
The transcript was filed in this court on January 21, 1903. The point is raised by counsel for appellee that this is not an appealable case, for the reason that the amount in controversy is within the jurisdiction of a justice of the peace, and,' therefore, the appeal is forbidden by §133lf Burns 1901, and it is insisted that it should be dismissed. Counsel for appellants, however, contend that the case falls within the exception of §1331h Burns 1901, for the reason that “there is in question, and such question is duly presented, * * * the proper construction of a statute.”
The court below found that the contract set out in the complaint was executed on August 11, 1892. The ownership of the land,'and certain sales thereof, and the assignment of the contract, and other matters about which no question arises, are all shown in the special finding. It is further found that the Diamond Plate Glass Company entered upon the land in controversy under the contract and laid pipes for the transportation of natural gas, etc.,
The court finds that the damages sustained by the plaintiffs by reason of their gas being cut off from their houses from May 15, 1899, to August 11 of the same year, amount to $10. The court, from the facts, construed the contract in suit as creating a tenancy from year to year, and held that the defendant had the right to terminate the tenancy and abandon the premises at the expiration of any year, without giving plaintiffs any notice of its intention so to terminate. Counsel for appellants assert that the only question presented by the record is whether the trial court properly construed §§1089, 1090 Burns 1901, the same being sections two and three of an act relating to landlord and tenant (Acts 1881, p. 563). Section two of this statute provides that “all general tenancies, in which the premises are occupied by the consent, either expressed or constructive, of the landlord, shall be deemed tenancies from year to year.” Section three declares that “all tenancies from year to year may be determined by at least three months’ notice given to the tenant prior to the expiration of the year.” Appellants’ learned cotmsel is manifestly. in error in his claim that the construction of these sections,^^or either_of them, is necessarily involved in this.
It will be observed that the contract in controversy provides that it shall be deemed to have been terminated whenever natural gas shall cease to be used generally for manufacturing purposes. In the case of the Diamond Plate Glass Co. v. Curless, 22 Ind. App. 346, that court, in construing a contract virtually the same as- the one herein involved and embracing the same provisions in respect to the limit thereof, said: “It can not be construed to be a lease for years. * * * ETor could it be a tenancy from year to year, even if the relation of landlord and tenant existed between the parties.” Section 1090, supra, in regard to the notice to be given by a landlord in order to terminate a tenancy from year to year, is in express and plain language made to apply only to the landlord. Whether the court, in its construction of the contract in question, was right or wrong in holding that appellants had the right to terminate it at the expiration of any
It follows that, as the amount in controversy in this case is within the jurisdiction of a justice of the peace, and the construction of a statute is not in question and duly presented, the appeal herein can not be entertained, and is therefore dismissed for want of. jurisdiction.
Appeal dismissed.