Pittinger v. Ramage

• Decision Date: 08 November 1907
• Docket Number: No. 5,919.,5,919.
• Citation: 82 N.E. 478,40 Ind.App. 486
• Parties: PITTINGER v. RAMAGE.
• Court: Indiana Appellate Court

40 Ind.App. 486

82 N.E. 478

PITTINGER

v.RAMAGE.

No. 5,919.

Appellate Court of Indiana, Division No. 1.

Nov. 8, 1907.

Appeal from Circuit Court, Delaware County; Jas. G. Leffler, Judge.

Action by Miles J. Pittinger against Samuel Y. Ramage. From a judgment for defendant, plaintiff appeals. Affirmed.

McClellan & Hensel, for appellant. Griffith & Ross and Simmons & Dailey, for appellee.

MYERS, J.

This was an action to quiet title to 50 acres off of the south end of a certain 70-acre tract of real estate in Delaware county, Ind., against a natural gas and oil lease, executed by appellant's grantors to the Home Oil & Gas Company, and held by appellee as a remote assignee. An amended complaint in two paragraphs, answered by general denial, formed the issues. Trial by the court, and at the request of appellee special findings of fact were submitted and conclusions of law stated thereon, and judgment for appellee, defendant below. Appellant's motion for a new trial was overruled, and this ruling is assigned as error. This ruling and that the court erred in its conclusions of law are the only questions, under a very liberal construction of the law and rules of the supreme and this court that can possibly be considered. Appellee vigorously insists that appellant, in the preparation of his brief, has not complied with clause 5, rule 22, of the supreme and this court (55 N. E. vi), and for that reason the questions sought to be presented are waived. We agree with appellee in this particular, and for that reason alone the cause should be affirmed. The brief does not set forth any reasons for a new trial, nor is there any statement that a motion for a new trial was filed, nor is there any reference to the record where such motion may be found, nor does the brief exhibit the special findings of fact or the conclusions of law. It would be impossible from the brief to determine either of the questions argued, and, this being true, such assignments may be considered as waived. Chicago Terminal Transfer R. R. Co. v. Walton, 165 Ind. 253, 254, 74 N. E. 1090, and cases cited. But in view of the very small record in this case we have concluded to pass upon the merits. Board v. Crone, 36 Ind. App. 283, 75 N. E. 826.

It is claimed that the decision of the court is not sustained by sufficient evidence. Under this head, it is argued that there is no evidence tending to show that seven wells had been drilled on the premises described in the lease, nor that by any act of appellant was appellee or any of his assignors released from the full performance of the conditions of the lease, or that the terms of the lease had been fully complied with. The question for consideration depends upon that part of the lease which, in substance, provides that in consideration of $1 lessors did thereby grant unto the Home Gas & Oil Company, its successors and assigns, all the gas and oil in and under a certain 70-acre tract of land in Delaware county, Ind., reserving one-sixth part of all oil produced and saved, to be delivered in the pipe line with which the lessee might connect the wells to be drilled on said land. The lessee agreed to drill at least seven wells on said tract of real estate within the periods following, to wit: The first to be completed “within thirty-five days from the date of this grant,” the second well to be completed within five months, and a well each four months after the completion of the second well until all were completed. At any time after the completion of two wells, on the payment of $1, the lessee might surrender and cancel the lease of record and thereby terminate all its rights and obligations as to all or any part of the land, with the right to the lessors to regrant to others such abandoned portion. Provision is made whereby the lessee may retain 10 acres for each of the completed wells. The lease was dated August 14, 1902. The special findings show, and there is evidence to support them, that in September, 1902, the Home Oil & Gas Company took possession of the real estate under the lease and drilled a well thereon, which produced gas in paying quantities, and which has continuously been utilized. In October, 1902, the second well was drilled, which produced neither oil or gas. On January 29, 1903, appellant became the owner of the land. In October, 1903, the first well was drilled deeper, and it produced oil. On October 17, 1903, the controversy between appellant and the Home Oil & Gas Company regarding the developing of the land for oil and gas was compromised, appellant receiving $75. On April 22, 1904, the Home...