42 Ind. App. 614 | Ind. Ct. App. | 1908
This was an action to recover rentals under the terms of a gas and oil lease.
In' addition to setting out the lease, it was alleged, in substance, in the first paragraph of the complaint, that appellant leased the described premises, containing forty acres, to appellee in June, 1897; that the term of the lease was for five years, with an option in the lessee to renew or continue the lease for an additional term of five years, by giving notice of its desire to do so; that notice was given, but not at the time required by the lease; that no well was ever drilled on the premises; that appellee paid ail rentals accruing under the lease up to'January 1, 1905; that “for the period from January 1, 1905, to July 1, 1905, there became due as rental $50, and for the period from July 1, 1905, to December 31, 1905, there became due as rental $50, making a total due as well rental the sum of $100, as made and provided in said contract;” and that appellant is the owner of the leased premises. Judgment for $100 is demanded. The clauses of the lease necessary to- the consideration of the question raised are as follows:
“ (3) Said party of the second part hereby covenants, in consideration of said premises, to pay unto said party of the first part, compensation at the rate of-fifty cents per acre per annum for said land until the completion of a well upon said lands, as hereinafter mentioned. The party of the second part further agrees thát from and after the completion of a well on said premises which shall, in its opinion, produce gas in sufficient quantity to justify said second party in marketing said gas it will pay to the party of the first part compensation at the rate of $100 per annum for each well on said land, so long as, in the opinion of the party of the second part, said well produces a marketable quantity of gas. Said payments shall become due semiannually, upon January 1 and July 1, and shall be paid within ten days of the maturity thereof, by depositing the same in the Fairmount Bank at Fairmount,, subject to the order of •said first party, or direct to said first party.
(4) ■ Said party of the second part reserves and is hereby given, the right to cancel and terminate this*618 lease by giving to said party of the first part written notice of such intention three months before January 1 or July 1 in any year, and by or on January 1 or July 1 paying to said party of the first part all rents then due to said party of the first part according to the terms of this lease, and also paying to said party of the first part the sum of $5, and releasing of record this lease; whereupon the rights of both parties under this lease shall cease and determine, except that said second party shall have the right, without paying any further compensation therefor, to maintain, operate, repair, replace or remove any pipe-lines laid upon said premises.
(5) To drill one well upon said premises within two years from this date, and a second well within-from the time the second party shall use the first well, unless said first well shall become useless to said second party before the expiration of said -, all subject to the same condition.
(6) In case the well or wells are not drilled or utilized as herein provided, then, upon the payment of the well rental herein stipulated to be paid by the second party, this agreement shall continue, and shall have the same force and effect as though the well or wells had been drilled and utilized. ’ ’
•“ (8) To grant to said first party at said first party’s expense and risk, but without charge for gas, the right, to use natural gas for domestic purposes in the residence of the first party on the demised premises, so long as this lease continues in force. Second party is to pay to first party $15 per year in lieu of gas, at the option of first party. ”
It avers the execution of the contract; that appellee agreed to pay appellant $15 per year in lieu of gas for the use in
In the case of Frazier v. Myers, supra, the court said: “The construction given the grant by the parties is the one upon which the courts must act in such a case as that made by the complaint. Where parties give their contract a construction, the courts will adopt that construction and hold the parties to it.”
We are now dealing with the allegations of the complaint as confessed by the demurrer. By these allegations it is shown that the parties have construed the. contract so as to entitle the lessor to the $15 per year, for this amount was paid for the year 1904. It was error to sustain the demurrer to this paragraph, and the court erred in thus doing.
For the reasons herein set forth, the judgment' is reversed, with instructions to the trial court to overrule the demurrers to the first and second paragraphs of the amended complaint, and for further proceedings not inconsistent with this opinion.