Roberts v. Ft. Wayne Gas Co.

• Decision Date: 20 November 1907
• Docket Number: No. 5,914.,5,914.
• Citation: 40 Ind.App. 528,82 N.E. 558
• Parties: ROBERTS v. FT. WAYNE GAS CO. et al.
• Court: Indiana Appellate Court

40 Ind.App. 528

82 N.E. 558

ROBERTS

v.FT. WAYNE GAS CO. et al.

No. 5,914.

Appellate Court of Indiana, Division No. 1.

Nov. 20, 1907.

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

Action by Joseph A. Roberts against the Ft. Wayne Gas Company and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Chas. T. Parker, for appellant. Cantwell & Lemmons and A. R. Long, for appellees.

WATSON, P. J.

Appellant, plaintiff below, sought to recover certain rentals claimed under a certain lease entered into between appellant and appellee gas company, and assigned by said gas company to appellee Robert Sutton, excepting and reserving to itself “four ten-acre tracts to be located by it in a square form.” To appellant's amended complaint, in one paragraph, appellees demurred separately. Judgment was rendered sustaining the demurrers, from which this appeal was taken.

The complaint, as amended, alleges that “the Ft. Wayne Gas Company is a corporation, organized and doing business under the laws of Indiana”; that on June 19, 1902, appellant leased to appellee gas company certain described real estate in Fairmount township, Grant county, Ind., particularly describing the same, and approximating the number of acres included therein, “for the purpose of drilling and operating for natural gas and petroleum oil”; that said lease was for a term of 10 years from date. The agreement is inserted in the complaint, and is alleged to be substantially as follows. It sets out the parties to the contract, and specifies that said lease is for “all that certain tract of land situated in Fairmount township, Grant county, and state of Indiana, bounded and described as follows, to wit: (HI) above described 129 acre tract of real estate.” Then follow the provisions that appellees, their heirs and assigns, are to hold the premises “for the said purpose only” for a term of ten years from date, “and for so much longer at the election of the lessee, as the rental herein agreed upon shall be paid as herein provided for, and as much longer as oil or gas is found in paying quantities.” The rentals were to be one-sixth of the oil, and, if “gas is found in sufficient quantities to market the same, the consideration in full to the party of the first part shall be one hundred dollars ($100.00) per annum in advance for each and every gas well drilled on the above described land.” It is further provided that “operation on the above-described premises shall be commenced and four wells completed within four months from the date hereof, or all paid for after October 1, 1902. *** It is also agreed between the parties hereto that in case said lessee shall fail to do and perform the work hereinbefore mentioned, or to pay the rent as herein agreed, such failure shall not forfeit its right to hold said leased premises for the above term; but, in lieu thereof and in full payment for all damages resulting to the lessor by reason of such default, said lessees are to pay annual rental for said premises during the term herein specified of one hundred dollars for each well above specified, the rent shall become due semi-annually in advance, upon the first day of January and July, and shall be paid within ten days from the maturity thereof at the Citizens' Exchange Bank, Fairmount, Indiana, or this lease be null and void.” The instrument then sets out that said lessee, by giving a 10 days' written notice, and paying the rent due at the expiration of the 10 days, and $5 additional in full of all damages and rents due said lessor from said lessee, may terminate said contract. Provisions are made against drilling wells nearer than 300 feet to house, barn, or orchard, and for the use of gas by said lessor for domestic purposes. The instrument concludes with the agreement that all the conditions of the contract shall extend “to their heirs, executors, successors, and assigns.” It is then averred that appellees agreed to pay appellant $100 per annum in advance for every gas well drilled on said premises; that they would drill at least four wells thereon within four months from date, and, if not, all were to be paid for after October 1, 1902; that they were to be paid for the term of 10 years, semiannually, in advance, on the 1st day of January and July, providing said lease should not be reconveyed and surrendered to lessor; that lessee took possession of the premises under said grant, drilled four gas wells before October 1, 1902, in which gas was found in sufficient quantity to market the same, which gas was found in said wells, and transported and marketed by lessees; that one oil well was drilled on said premises; that lessees have never surrendered, canceled, reconveyed, or released of record said lease, but still hold possession of the premises thereunder; that said rental has been demanded, is past due, and unpaid; that lessees have failed to pay the installments of well rental due July 1, 1904, and January 1, 1905; that there is due $400 in rentals, and a total of $450.

Appellees insist that the appeal should be dismissed for the reason that appellant's brief does not comply with clause 5 of rule 22 (55 N. E. vi) of the rules of this court. It is pointed out that there is a specific incorrect statement of the record, in that the description of the land, as set out in appellant's statement of the record, is not that given in the lease itself. If a substantial effort is made in good faith to comply with the rules, the court may disregard the defects in the brief. Stamets v. Mitchenor, 165 Ind. 672, 675, 75 N. E. 579;Hay v. Bash, 37 Ind. App. 167, 169, 76 N. E. 644. Where all the...