Hancock v. Diamond Plate Glass Co.
| Citation | 37 Ind.App. 351,75 N.E. 659 |
| Decision Date | 01 November 1905 |
| Docket Number | No. 5,435.,5,435. |
| Parties | HANCOCK v. DIAMOND PLATE GLASS CO. et al. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Grant County; B. F. Hamess, Judge.
Action by Anna E. Hancock against the Diamond Plate Glass Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.B. C. Moon, for appellant. Blacklidge, Shirley & Wolf and Bell & Purdum, for appellees.
Suit by appellant to recover acreage rental upon a natural gas lease. Upon a special finding of facts the court stated a conclusion of law in appellees' favor. The correctness of the conclusion of law is the only question presented.
The facts found are in substance as follows: On July 23, 1889, appellant owned in fee and was in possession of certain land, and on that date, her husband joining, she executed to the Diamond Plate Glass Company of Indiana a gas and oil lease on the land in two parts; the lease providing, among things: That the lessee should have the right of ingress and egress to and from the tracks on which wells were to be located, the right to use the highways adjoining any part of the premises for the laying of mains and pipes for the transportation of gas, the lessee “to deliver to said first party, during the continuance of this lease, natural gas, free of charge, necessary for domestic use for dwelling house now on said premises, or that may be hereafter erected thereon, not exceeding one,” the gas to be delivered in a main or pipe at the house, the lessee to furnish at the railroad pipes necessary for conducting the gas and a superintendent for laying the same, the mains to belong to the lessee, the lessor to lay the pipes and make all necessary attachments. All gas obtained should be used in Howard county. If wells were not drilled in five years the rental to be one dollar an acre. In the second agreement, made on the same day, the lessor agreed not to drill or permit others to drill on the land during the continuance of the lease, and in case any other wells were put down the lessee and assigns should thereafter be released from the payment of any rentals; but otherwise the lessee's rights should not be affected. On October 13, 1890, the Diamond Plate Glass Company of Indiana assigned the lease to the Diamond Plate Glass Company of Illinois, which latter company on April 1, 1895, assigned the lease to the Pittsburgh Plate Glass Company, which company agreed to perform all the terms and conditions of the lease and pay all rentals thereafter maturing under the lease. On September 19, 1895, the Pittsburgh Company assigned the lease to the Logansport & Wabash Valley Gas Company, which company held the lease until the surrender thereof. That the LogansportCompany agreed to perform all the conditions of the lease and pay all rentals thereafter maturing. The assignment of the lease from the Diamond Plate Glass Company of Illinois to the Pittsburgh Plate Glass Company, and from that company to the Logansport & Wabash Valley Gas Company, also embraced the assignment and conveyance of all gas lines situated within the territory covered by the leases thereby assigned which were used for supplying gas to the lessors. That the Diamond Plate Glass Company of Indiana and the Diamond Plate Glass Company of Illinois entered upon the land and laid in the highways thereof pipes for the transportation of natural gas, and maintained the same until the assignment of the lease to the Pittburgh Company, which company, when it became owner of the lease, entered upon the land for the purpose of maintaining thereon in the highways such pipes, and continued to maintain the same until it assigned the lease to the Logansport Company, which company, when it became the owner of the lease, entered upon the land and maintained in the highways such pipes, and maintained upon and across the land in the highway, from the time it became the owner until December, 1900, about 10 rods of one-inch pipe, which it continuously used for the transportation of gas produced elsewhere, and that such pipe was a service pipe used by appellees to furnish natural gas free of charge to the lessor under the lease. That no gas or oil well has been drilled at any time upon the land, and no one of the holders of the lease ever offered to drill or put down any well, although appellant was always ready and willing for such well to be drilled by any of the holders of the lease at any time when the lease was in force. That the rent maturing under the terms of the lease on January 1, 1891, 1892, 1893, 1894, and 1895 was paid, but the rent claimed by appellant as maturing on January 1, 1896, 1897, 1898, 1899, and 1900 is unpaid. That natural gas was used generally for manufacturing purposes in Howard county from the time of the execution of the lease until the spring of 1902. That appellant has performed all the conditions of the contract on her part. That the several holders of the lease furnished appellant natural gas, free of charge, necessary for domestic use for the dwelling house on the land from a date immediately after the execution of the lease to the latter part of December, 1900, according to the contract, but the Logansport & Wabash Valley Gas Company on or about December 25, 1900, cut off the supply of gas to the house and removed its pipes and fixtures from the land, and has not since that date furnished appellant with gas or exercised any rights in the land under the lease. That on January 6, 1900, the Logansport & Wabash Valley Gas Company signed, asknowledged, and caused to be recorded a release of all rights under the lease, and the county recorder entered upon the margin of the lease, where the same was recorded, a reference to such cancellation. That about the 1st day of January, 1896, the Logansport & Wabash Valley Company, through its general manager, decided to terminate the lease, claiming the right to do so under the clause providing: “This grant and lease *** shall be deemed to have terminated *** whenever the second party, their heirs or assigns, shall fail to pay or tender the rental price herein agreed upon within sixty days of its becoming due, and, in the event of the termination thereof for any cause, all rights and liabilities hereunder shall cease and terminate.” That pursuant to such election or shortly thereafter it notified appellant through its field man of such election, and that it would not thereafter continue the lease in force nor pay any rentals, but that the same was then and thereafter null and void. That from and after January, 1896, the Logansport Company has continuously refused to pay any rentals, and has never since that date claimed to hold any rights under the lease, but that appellant has during that time refused to consent to the termination of the lease and denied the right of appellee so to terminate the same until about December, 1900. On February 24, 1896, after appellant had been informed that the Logansport Company claimed the lease to be no longer in force, on the ground that the same had been terminated by it under the above provision, appellant filed before a justice of the peace a complaint for rentals alleged to be due under the contract sued on in this case upon January 1, 1896, and the appellees, the Diamond Plate Glass Company and the Pittsburgh Plate Glass Company, were made parties defendant. That the complaint in that case alleged that at the date thereof, the plaintiff therein and the plaintiff herein was the owner in fee and in possession of the real estate described in the complaint herein and in that case and in the lease filed as an exhibit; that the plaintiff executed to the Diamond Plate Glass...
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