Ramage v. Wilson

• Court: Indiana Appellate Court
• Writing for the Court: MYERS
• Citation: Ramage v. Wilson, 37 Ind. App. 532, 77 N. E. 368 (Ind. App. 1906)
• Decision Date: 28 March 1906
• Docket Number: No. 5,594.,5,594.
• Parties: RAMAGE v. WILSON.

37 Ind.App. 532

77 N.E. 368

RAMAGE

v.WILSON.

No. 5,594.¹

Appellate Court of Indiana, Division No. 1.

March 28, 1906.

Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.

Action by John W. Wilson against Samuel Y. Ramage. From a judgment for plaintiff, defendant appeals. Affirmed.

Dailey, Simmons & Dailey, for appellant. W. D. Lett, T. B. Dicken, W. E. Haisley, and B. L. Guffy, for appellee.

MYERS, J.

This is an action by appellee against appellant to recover a certain sum of money alleged to be due by reason of appellant's failure to comply with and perform a certain stipulation in a natural gas and oil lease, which stipulation reads as follows: “Second party also agrees to drill an additional well each and every sixty days or pay $1 per day for each and every day's delay over that time till three wells are completed.” The complaint avers the ownership of the land in appellee, the execution by appellee of the said oil and gas lease to one Thomas McDonald, and various assignments from McDonald to appellant; the drilling of the two wells on the premises, and the failure to drill a third well. Appellant answered in five paragraphs. A demurrer for want of facts was sustained to the fifth. Replies were filed to the other paragraphs of answer, except the first, which was a general denial. The issues thus formed were tried by the court, resulting in a finding and judgment in favor of appellee for $307. The only errors presented for our decision are based upon the ruling of the court in sustaining appellee's demurrer to the fifth paragraph of answer and the overruling of appellant's motion for a new trial.

In part, the oil and gas lease, made a part of the complaint, provides that in consideration of $25 appellee granted and guarantied unto Thomas McDonald all the oil and gas in and under a certain 20-acre tract of land then owned by him, together with the right to enter thereon at all times for the purpose of drilling and operating for oil and gas, and lessor was to have one-eighth part of all oil produced and saved from said premises. The lease stipulates that in case no well is completed within 15 months from date of lease, lessee shall thereafter pay at the rate of $1 per day for further delay, and also for the drilling of “an additional well each and every 60 days, or pay $1 per day for each and every day's delay over that time till three wells are completed. Also the right to remove all its property at any time, and may cancel and annul its contract or any part thereof at any time.” The conditions between the parties extend to their heirs, executors, successors, and assigns. This lease was executed July 19, 1899. The fifth paragraph of answer, in substance, after setting out the stipulations in the lease with reference to the completion of a well within 15 months, an additional well each 60 days, the right to the use of gas, etc., and to cancel and annul the contract or any part thereof at any time, and that the conditions of the contract shall extend to their heirs, executors, successors, and assigns, alleges that two wells were drilled and completed on the real estate described in the contract within the time provided for therein, and that such wells produced oil in paying quantities; that appellee received and accepted his portion of the oil as provided in the contract; that the two wells so drilled were located on the east 13 1/3 acres of the 20-acre tract described in the contract, and that no well was ever drilled on the west 6 2/3 acres thereof; that at the time of the execution of the contract it was agreed between appellee and McDonald that three wells were to be drilled on the real estate described in the contract, or, if three wells were not drilled, and McDonald, his heirs, executors, successors, and assigns, desired to hold all of said premises, that $1 per day should be paid while in default of completing wells, and it was further understood by said parties that if McDonald, his heirs, etc., desired to be relieved from the payment of said $1 per day, that 6 2/3 acres for each well not drilled should be released and canceled, and when so canceled and annulled as to 6 2/3 acres for each well not drilled, then the said McDonald, his heirs, etc., should be relieved from the payment of $1 per day for a failure to drill and complete wells; that the parties to the lease construed the same to mean at all times, that the cancellation and annulment of said contract as to 6 2/3 acres of the described tract should release McDonald, his heirs, etc., from such payment; that on February 15, 1901, there was no rental or penalty whatever due on said contract for the failure to drill a well on said real estate, and on that day the Emery Oil Company, being the owner of the lease at that time, by its agent, J. B. Hinkle, canceled and annulled the lease as to 6 2/3 acres off of the west end of the real estate covered by the lease, and at that time so informed appellee that the lease was annulled and canceled as to such portion of the real estate; that at that time the Emery Oil Company, by its agent as aforesaid, canceled the following portion of the contract or lease, to wit: “Second party agrees to drill an additional well each 60 days or pay $1 per day for each and every day's delay over that time till three wells are completed.” That by reason of the...