Columbian Oil Co. v. Blake

• Decision Date: 26 November 1895
• Docket Number: 1,683
• Citation: 42 N.E. 234,13 Ind.App. 680
• Parties: COLUMBIAN OIL COMPANY v. BLAKE
• Court: Indiana Appellate Court

42 N.E. 234

13 Ind.App. 680

COLUMBIAN OIL COMPANY v. BLAKE

No. 1,683

Court of Appeals of Indiana

November 26, 1895

From the Blackford Circuit Court.

Judgment reversed, with instructions to overrule the 692 demurrers to the second and third paragraphs of the answer and for further proceedings not inconsistent with this opinion.

G. A Mason and A. Simmons, for appellant.

J. A Bonham, E. Cole, D. H. Fouts and A. M. Waltz, for appellee.

ROSS, J. LOTZ, J., concurs in result.

OPINION

ROSS, J.

This was an action brought by the appellee against the appellant to recover rents alleged to be due her under the terms of a written contract.

The first and second specifications of error in the assignment of errors in this court, call in question the sufficiency of the complaint. The contract sued on, it is insisted by counsel for appellee, is void for the following reasons: First, "For the reason that no particular real estate is described therein." Second, "Because it does not designate any time within which drilling shall be commenced, and consequently, when renting shall accrue, nor when it shall mature." Third, "Because it does not provide upon what terms the 39 acres should be operated, in case oil or gas was found on the one acre."

We think counsel's objections untenable. The property leased is described as being the south-east quarter of the south-east quarter of section twenty-three, and as being situated in the civil township of Harrison, in Blackford county, Indiana. The congressional township and range are not given.

In Mossman v. Forrest, 27 Ind. 233, the supreme court held that the courts take judicial notice of the geography of the country, and in the cases of Board of Commissioners of Shelby Co. v. Castetter, 7 Ind.App. 309; Hays v. State, 8 Ind. 425, and Peck v. Sims, 120 Ind. 345, 22 N.E. 313, it is said that the courts take judicial notice of the geography and topography of the State and the United States. In Cash v. Auditor of Clark County, 7 Ind. 227, the court says: It knows "geographically that the falls of the Ohio are local and in Clark county." In Carr v. McCampbell, 61 Ind. 97, it is held that it is judicially known as a part of the history of the State, that "Clarke's Grant" is located in Clark, Floyd, and Scott counties in this State, "and that the town of Clarksville was located and laid out in the two counties of Clark and Floyd, and abutting on the Ohio river." In a number of other cases it has been decided that our courts take judicial notice of the location of the cities and towns, and in what counties they are situated. Cluck v. State, 40 Ind. 263; Turbeville v. State, 42 Ind. 490, and Indianapolis, etc., R. W. Co. v. Lyon, 48 Ind. 119; Steinmetz v. Versailles and Osgood Turnpike Co., 57 Ind. 457; Terre Haute, etc., R. R. Co. v. Pierce, 95 Ind. 496; Louisville, etc., R. W. Co. v. Hixon, 101 Ind. 337. But in Grusenmeyer v. City of Logansport, 76 Ind. 549, the court says: That while the courts "take judicial notice of the existence and names of cities and towns, and in some general sense, of their locations," it does not judicially know their exact limits or boundaries. In Moberry v. City of Jeffersonville, 38 Ind. 198, it is held that the courts do not know judicially the number of wards into which a city is divided, and in the case of Bragg v. Board of Commissioners of Rush Co., 34 Ind. 405, the court says: "We cannot know judicially, if such is the fact, that there is no such township as Rush, in Rush county."

When lands are described as being within the State of Indiana, and the section, township and range are given, their location is a matter of certainty and fixed, for all the lands of the State were surveyed by the general government, upon a system of base and meridian lines, and no two sections can be found having the same number, and lying within the same congressional township and range. As stated heretofore, the description in the lease or contract before us, does not give any description of the property in any manner locating it with reference to a congressional township or range. This court, however, knows judicially that there is a county in the State of Indiana, called and known as Blackford county, and according to the great weight of the adjudications in this State, we know the names and general locations of the towns situated therein; that the county of Blackford is divided into four townships, the names of which are Washington, Harrison, Jackson and Licking, is a part of the history of the county itself, and is so well known that the courts must take judicial notice thereof, and we think the court must also know that there is but one section number twenty-three in the township of Harrison, in said county of Blackford. The description of the property is sufficient.

It is contended by counsel for appellant that the contract grants to appellant the right to enter and drill for gas or oil upon but one acre of the forty described, while counsel for appellee insist that the right is granted as to the entire forty acres, and that appellant's right to drill and the amount of land for which it agreed to pay a yearly rental was not limited to one acre. The contract entered into between the parties reads as follows:

"In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, Effie Blake, of Hartford City, Indiana, of the first part, hereby grants unto Lyman C. Scott, second party, all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and operating for oil or gas, and to erect and maintain all buildings and structures, and lay all pipes necessary for the production and transportation of oil or gas taken from said premises.

"Excepting and reserving, however, to the first party, one-eighth part of all oil produced and saved from said premises, to be delivered in the pipe line with which second party may connect his wells, namely:

"All that certain lot of land situated in the township of Harrison, county of Blackford, in the State of Indiana, bounded and described as follows, to-wit:

"S. E. 1/4 of the S. E. 1/4 of section 23; party of first part leases one acre anywhere out of this above described land for a test well, and if oil or gas is found, then party of second part has the balance of this above land to drill at the same royalty as the within lease, containing acres, more or less.

"To have and to hold the above premises on the following conditions:

"If gas only is found in quantities large enough to transport, then party of the first part is to receive one hundred dollars for the product of each and every well so transported, and also free gas for dwelling on the above described land, for heating and lighting purposes, also for domestic purposes.

"Whenever first party shall request it, second party shall bury all oil and gas lines, and pay all damages done to growing crops, by reason of burying and removing said pipe lines.

"The second party shall have the right to use sufficient gas, oil or water, to run all machinery for operating said wells, and also the right to remove all its property at any time.

"Party of second part agrees to commence operation within thirty days, and to complete a well in thirty days after drilling is commenced, and if failing therein, then party of second part is to pay annually thereafter five dollars per acre until said well is completed, and if failing therein, then this contract is to become null and void.

"It is understood between the parties to this agreement, that all conditions between the parties hereunto shall extend to their heirs, successors, executors and assigns.

"In witness whereof, the parties hereto have hereunto set their hands and seals, this 3d day of May, 1893."

The right granted is absolute to take all the oil and gas in and under the entire forty acres described, unless that right is limited by the words, which immediately follow the description of the property, viz: "Party of first part leases one acre anywhere out of the above described land for a test well, and if oil or gas is found, then party of second part has the balance of this above land to drill at the same royalty as the within lease."

It is insisted by counsel for appellee, that if it is held that the original grant is limited by the clause last quoted, then no effect can be given to other parts of the contract, especially that wherein it provides that the "Party of second part agrees to commence operation within thirty days, and to complete a well in thirty days after drilling is commenced, and if failing therein, then party of second part is to pay annually thereafter five dollars per acre until said well is completed, and if failing therein, then this contract is to become null and void." And that courts will not presume that parties in entering into contracts have inserted therein provisions which are meaningless, but, on the contrary, will give to such contracts, if possible, such a construction as will give force and effect to each and every part thereof.

We think the rule is settled as elementary, that if a contract is susceptible of two constructions, that one must be adopted which will give force and effect to each and every provision contained therein, and not the one which will give force to but a part of the provisions, thus discarding and giving no effect to others. A contract must be considered and construed as an entirety, and for that reason the law assumes that nothing has been inserted therein, except what is a part of the agreement entered into. As said by this court in Learned v. McCoy, 4 Ind.App. 238, 30 N.E 717: "In the interpretation of a contract the real intention of the parties...