Shenk v. Stahl

• Decision Date: 23 May 1905
• Docket Number: No. 5,237.,5,237.
• Citation: 74 N.E. 538,35 Ind.App. 493
• Parties: SHENK et al. v. STAHL et al.
• Court: Indiana Appellate Court

35 Ind.App. 493

74 N.E. 538

SHENK et al.

v.STAHL et al.

No. 5,237.

Appellate Court of Indiana, Division No. 1.

May 23, 1905.

Appeal from Circuit Court, Howard County; J. F. Elliott, Judge.

Action by Adam Stahl and others against Reuben Shenk and another. From a decree in favor of plaintiffs, defendants appeal. Reversed.

Blacklidge, Shirley & Wolf, for appellants. Bell & Purdum, for appellees.

MYERS, P. J.

Appellees instituted this action in the Howard circuit court against appellants, and the cause was tried on an amended complaint in three paragraphs. The separate demurrer of Reuben Shenk to each paragraph of the complaint was overruled, and this ruling is here assigned as error. The complaint was answered in three paragraphs, the first being a general denial. Other pleadings were filed, not necessary for us here to notice in the decision of this case. Trial by the court, finding and decree in favor of appellees.

The substance of the first paragraph of the amended complaint may be stated as follows: On September 18, 1889, Reuben Shenk and his wife, Julia Shenk, were the owners by entireties of 100 acres of land in Howard county, Ind., and on that day leased to the Diamond Plate Glass Company of Indiana a 20-foot square tract out of the northwest corner thereof for the purpose of constructing a gas well thereon, which was done, and properly equipped with the necessary casing, fixtures, and appliances. On October 13, 1890, said lease was assigned in writing to the Diamond Plate Glass Company of Chicago, Ill., which last-named company on August 15, 1891, duly assigned said lease for a valuable consideration, and all rights thereunder; also the gas well constructed under the terms thereof, and fixtures connected therewith, to Daniel A. Shenk. On August 22, 1891, the said Reuben Shenk and Julia Shenk, his wife, were still the owners by entireties of the said real estate. That on said day said Daniel A. Shenk sold the said gas well with its casing, separator, regulator, piping, and fixtures connected therewith, except one-seventh thereof, to the appellees in this cause, and to George Ingles and Jacob Reel, both deceased at the beginning of this action. That on said last date Reuben Shenk and his wife entered into a written contract with the appellees Adam Stahl, George Stahl, John Rich, and George Ingles and Jacob Reel (both now deceased), and also the appellant Daniel A. Shenk, as follows: “This agreement made and entered into this 22nd day of August, 1891, by and between Reuben Shenk of the first part and Daniel A. Shenk, John Rich, George Ingles, Adam Stahl and Jacob Reel of the second part, witnesseth: That the party of the first part has this day granted and leased to the second parties, their heirs and assigns, 20-foot square of land in the northwest corner of the southeast quarter of section 2, township 23 north, range 4 east, for the purpose of a gas well so long as it is used for the same. In consideration of said grant and lease and other considerations said second parties give to Reuben Shenk a one-seventh interest in and to the within described gas well, piping and fixtures connected therewith, the same being valued at $100.00. The parties here named, Daniel A. Shenk, John Rich, George Ingles, Adam Stahl, George Stahl, Jacob Reel and Reuben Shenk, all have an equal share in said gas well, piping and fixtures, etc., and agree to pay their equal shares of expenses to keep the same in repair, etc., each of the above named parties shall have free gas for one dwelling house and kettle jet.” This contract was signed and acknowledged by all the parties, and duly recorded. It is also averred: That all the parties to said contract intended thereby to convey to and fix the respective interests of each, and to lease the said gas well, fixtures, connections, pipes, and privileges. That then and now a public highway - feet in width extended north and south on the west line of the real estate of said Reuben Shenk. That by the mutual mistake of all the parties said writing did not properly describe the land on which the well was located. The true description is then given, which it is alleged was the intention of all the parties to have written in the contract. That pursuant to said contract the parties thereto entered into possession of said property, and attached the necessary gas pipe and appliances to connect the residences to said gas well, and began and continued to use gas therefrom under said contract “until said gas well ceased to provide gas in sufficient quantities to supply them.” That the supply of gas in said well thereafter greatly increased, and in quantities to supply all said parties. That Julia Shenk departed this life before the beginning of this action. That Reuben Shenk and Daniel A. Shenk have reconnected the pipes owned by them to said gas well, and are using the gas therefrom to the exclusion of appellees. That appellee Abraham C. Ingles has succeeded to all the rights, interest, and privileges of George Ingles under said contract. That appellee Isaac Keyton has succeeded to the rights of Jacob Reel, and entitled to all the privileges belonging to said Reel under said contract. That each appellee has demanded of Reuben Shenk the right to enter upon said premises where said well is located and attach pipes thereto and use gas therefrom, all of which has been denied them by said Shenk, who claims to be the absolute owner of said gas well, together with all said fixtures and connections, and threatens to have appellees arrested if they interfere with said gas well or go upon said premises to connect gas pipes with said well. That natural gas has a peculiar value as fuel, and appellees are unable to obtain it from any other source. That appellees have suffered damages by reason of being unlawfully kept out of possession of said well. That Daniel A. Shenk is made a party to answer to his interest. Prayer that the contract be reformed so as to give the true description of the real estate; that appellees each be declared the respective owners of one-seventh of said gas well, together with all fixtures, pipes, etc., and the right to use gas from said well, etc.; that Reuben Shenk be permanently enjoined and restrained from disconnecting appellees' pipes with said well, etc., and for damages.

The finding and judgment of the court not being based on any particular paragraph of the complaint, we will first consider the alleged error as applied to the first paragraph. In determining this question we should keep in mind the true status of Reuben Shenk as fixed by the terms of the contract. And it may be said by the terms of the contract in suit the rights of all the parties to this suit must be measured. As the question now arises, Reuben Shenk may be considered the owner of the land at the time the contract in suit was entered into. By this contract he gave to appellees certain rights, and agreed to and did release appellees from a certain contract then existing, covering the same tract of land, and in consideration thereof he received a one-seventh interest in the gas well as held by appellees and his co-appellant under the contract in suit, together with a one-seventh interest in the piping and fixtures connected therewith, which interest was valued...