Driscoll v. Penrod

• Decision Date: 06 June 1911
• Docket Number: 21,885
• Citation: 95 N.E. 313,176 Ind. 19
• Parties: Driscoll et al. v. Penrod, Administrator, et al
• Court: Indiana Supreme Court

95 N.E. 313

176 Ind. 19

Driscoll et al. v. Penrod, Administrator, et al

No. 21,885

Supreme Court of Indiana

June 6, 1911

From Wells Circuit Court; Charles E. Sturgis, Judge.

Action by Calvin S. Penrod, as administrator of the estate of George Grey, deceased, and others against Timothy J. Driscoll and others. From a judgment for plaintiffs, defendants appeal. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.

Affirmed.

John P Boyd and L. B. Simmons, for appellants.

W. H Eichhorn and E. C. Vaughn, for appellees.

OPINION

Morris, J.

This was an action by appellees against appellants to recover rentals on a gas and oil lease. From a judgment for plaintiffs, defendants appeal.

A demurrer to the complaint for insufficient facts was overruled, and this action of the lower court is first assigned as error. The complaint, omitting formal parts, is as follows: Plaintiffs complain of defendants and say that on January 3, 1902, plaintiffs George Grey, Elizabeth Grey and Rowena Feazel, leased to defendants the following described real estate in Chester township, Wells county, Indiana, to wit: The northeast quarter of the southeast quarter of section four, township twenty-five north, range eleven east, for the purpose of drilling and operating for oil and gas, of erecting and maintaining buildings and structures, and of laying all necessary pipes for the production and transportation of oil and gas; that plaintiffs, under the terms of said lease, were to have one-eighth of all oil produced and saved from said premises, to be delivered in the pipe-line that the second party might connect with said wells; that afterwards, to wit, on the day of ----- said Rowena Feazel conveyed by warranty deed all her right, title and interest in and to said real estate to one of the plaintiffs herein, Mary C. Fetters, who has ever since been and is now the owner of said Feazel's interest; that immediately after the execution of said lease, which was then duly acknowledged, defendants entered into full possession of said real estate for the purpose of carrying out the terms of said lease, and drilling and operating said leased premises; that a copy of said lease is made a part of the pleadings herein; that said lease was duly entered of record in the recorder's office, in Miscellaneous Record No. 18, on February 14, 1892; that prior to the execution of said lease said premises had been leased for the purpose of developing said premises, and producing gas and oil from said land, and one well had been theretofore drilled on said land, and was producing oil at the time said lease was executed; that said defendants, by the terms of said lease, agreed that a second well should be drilled thereon within thirty days from the date of the execution of the lease, or they would pay a rental of $ 10 a month, and it was also agreed that a third well should be drilled in thirty days from the completion of the second well, or the monthly rental paid in advance, a fourth well was to be drilled by the defendants within sixty days from the completion of the third well, or a monthly rental of $ 10 be paid in advance, and a fifth well was to be drilled within sixty days from completion of the fourth well, or the undrilled parts would be forfeited, and each well was to occupy eight acres of land; that a reference in this lease to the drilling of a second well was understood between the plaintiffs and defendants to mean that the well already drilled when said lease was executed should be regarded and called the first well on said premises; that defendants drilled the second well as herein specified, and afterwards, within the time specified in said lease, the third well was drilled on said premises by defendants, which made and constituted two wells drilled by said defendants; that the second well drilled by said defendants was completed in April, 1902; that defendants, although they held possession of said premises and operated said wells already drilled, have never drilled the fourth and fifth wells, as mentioned in said lease; that by reason of such failure, and under the terms of said agreement, defendants have wholly failed to comply with the terms of their lease, and have wholly failed to pay any rental whatever; that there is now due from said defendants to these plaintiffs the sum $ 600 for rental under the terms of said lease. Wherefore plaintiffs demand judgment against defendants in the sum of $ 600, and for all other proper relief." The following is a copy of the lease, and is marked exhibit A:

"In consideration of the sum of $ 1, the receipt of which is hereby acknowledged, we, George Grey, Rowena Feazel, and Elizabeth Grey, of Chester township, Indiana, of the first part, hereby grant and guarantee unto T. J. Driscoll and Charles McCauley, 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 and gas, either or both, and to erect and maintain all buildings and structures, and lay all pipes necessary for the production and transportation of oil or gas. The first party shall have the 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 all wells, namely: All that certain lot of land situated in the township of Chester, county of Wells, in the State of Indiana, described as follows, to wit: The northeast quarter of the southeast quarter of section four, Chester township, containing thirty-nine acres, more or less; to have and to hold the above premises on the following conditions: If gas only is found in sufficient quantities to transport, second party agrees to pay first party at the rate of $ 100 per annum for the product of each and every well so transported, and the first party to have gas free of cost to heat all stoves and light all jets in dwelling house. Second party shall bury all oil and gas lines where likely to interfere with cultivation, otherwise not, and pay all damages done

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