Risch v. Burch

• Decision Date: 23 May 1911
• Docket Number: No. 21,757.,21,757.
• Citation: 175 Ind. 621,95 N.E. 123
• Parties: RISCH et al. v. BURCH.
• Court: Indiana Supreme Court

175 Ind. 621

95 N.E. 123

RISCH et al.

v.BURCH.

No. 21,757.

Supreme Court of Indiana.

May 23, 1911.

Appeal from Circuit Court, Pike County; John L. Bretz, Judge.

Action by Amos Burch against Henry Risch and others. From an interlocutory order granting a temporary injunction, defendants appeal. Affirmed.Samuel Emison, Le Roy M. Wade, and Robinson & Stilwell, for appellants. Wilson & Brumfield and Richardson & Taylor, for appellee.

COX, J.

This is an appeal from an interlocutory order granting a temporary injunction to appellee restraining appellants from drilling an oil or gas well on the lands of appellee until the final hearing of the cause instituted by him against them to quiet his title to such lands, and for a permanent injunction. The cloud on his title against which appellee is seeking relief grows out of a contract between appellee and appellants for the exploration of appellee's lands for oil and gas by appellants.

The assignments of error deny both the sufficiency of the complaint and the evidence to sustain the action of the trial court in granting the temporary injunction. The complaint, the sufficiency of which is questioned first in this court, contains all of the allegations necessary to make a good short-form complaint to quiet title to real estate, and is admittedly good to secure that relief as against a demurrer for want of facts. To these allegations are added the following: “That said defendants have unlawfully entered upon said land with what is known as drilling rig, or outfit, and placed the same in position thereon for the purpose of drilling an oil and gas well on said land, and are intending and threatening to drill such well thereon and will so drill same, unless restrained from so doing.” The conclusion is a prayer for an order restraining defendants pending the hearing, and for a perpetual injunction and the quieting of the plaintiff's title as final relief. The time of the hearing for the temporary injunction was agreed upon and the matter was submitted to the trial judge upon the verified complaint and evidence from both sides.

It appears that the appellee, then the owner and in possession of the real estate in controversy, consisting of 40 acres, in Pike county, on December 15, 1909, entered into a contract with appellants for the exploration of the land for oil and gas. This memorandum of agreement, as it is designated therein, omitting certain wholly immaterial parts, reads as follows: “That the said party of the first part, for and in the consideration of the sum of forty ($40.00) dollars in hand paid, the receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained, hereby grant and convey to the said party of the second part, all of the oil and gas in and under the following described premises, together with the exclusive right to enter thereon at all times for the purpose of drilling and operating thereon, and of producing therefrom said oil and gas, and to erect and maintain all buildings and structures and to lay and maintain all surface rods and pipes necessary for the production or transportation of oil and gas to, from or upon such premises as may be operated by said second party. Excepting and reserving, however, to the party of the first part the one eighth (1/8) part of all oil produced and saved from said premises hereinafter described, to be delivered in pipeline or tank with which second party may connect said wells, namely: [Here follows a description of the premises.] To have and to hold the above-described premises for a period of one year from the date hereof and as much longer as gas and oil is found in paying quantities on said premises or the rentals paid as herein provided for, upon the following conditions: If gas only is found, second party agrees to pay first party two hundred dollars each year for the gas from each well while the same is being marketed off the premises, the first party to have the gas free of cost to heat all stoves and light and jets in dwelling house on said premises during the same time. *** In case no well is commenced on said premises within 120 days from this date, then this grant shall become null and void unless second party shall thereafter pay the first party at rate of twenty ($20.00) dollars each month thereafter such commencement is delayed, payment to be made by depositing the amount thereof in First Nat. Bank of Winslow or by check delivered to the first party.”

It is conceded that no well was begun within 120 days from the date of the agreement, December 15, 1909, and that nothing was done towards doing so within that time. Thereafter the evidence warrants the statement that on or before May 15, 1910, appellants paid to appellee $20 on the contract, and on or before June 15th another $20; that no further payments were made to appellee, and that no deposits were made in the First National Bank of Winslow by appellants for him; that as late as July 18th, appellee, not having received additional payments, went to the Winslow bank and found no money from appellants there for him; that on July 19th, after finding no money in the bank for him, appellee made a tentative agreement with another person for the oil and gas rights in his land on more favorable terms, and on that day notified appellants that their rights therein were at an end; that the following day appellee closed his tentative agreement with the third party, and received among other more favorable considerations for the oil and gas rights in his land a large cash payment; that appellants, still asserting the existence of their rights under the agreement, sent a check to the Winslow bank for appellee July 19th, and on July 21st they moved a drill rig on the land preliminary to carrying out the expressed intention of drilling a gas and oil well thereon, and this was the first move they had made to carry out their implied agreement to make exploration of appellee's land. This action was begun July 27, 1910.

[1] While it is not contended by counsel for appellants that the complaint is lacking in any essential averment to make it good to quiet title, it is earnestly contended that it does not contain sufficient allegations to authorize the granting of a temporary injunction. That ancillary injunctive relief may be granted to prevent a trespass to land in aid of a plaintiff in possession in an action to protect his possession or to quiet his title, where the objective of the trespass is to remove a part of the substance of the inheritance, cannot be doubted. Such relief has been granted to prevent the removal of trees, coal, valuable ores,...