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Am. St. Rep. 894; Swift v. Broyles, 115 Ga. 885, 42 S. E. 277, 58 L. R. A. 390. It follows, and we so conclude, that appellee in this action, under the averments of the second paragraph of the complaint, is entitled to recover for the depreciation or diminution of the rental value of his property occasioned by the alleged nuisance and there fore the court did not err in allowing him to introduce evidence to prove such damages.

The record discloses that the court on its own motion gave six instructions to the jury. The giving of each of these was assigned by appellant in its motion for a new trial. No. 4 of these instructions is as follows: "No. 4. In determining the issues in this case you should take into consideration the whole of the evidence and all the facts and circumstances proved on the trial, giving the several parts of the evidence such weight as you think they are entitled to. And the court instructs you that when witnesses are otherwise equally credible and their testimony otherwise entitled to equal weight, greater weight and credit should be given to those whose means of information were superior and also to those who swear affirmatively to a fact rather than to those who swear negatively or to a want of knowledge or recollection." (Our italics.) Appellant's counsel assail this instruction, and insist that the giving thereof to the jury constituted reversible error. In this contention we concur. An instruction identically the same as that portion of the one in question which we have embraced in italics was condemned by this court and held to constitute reversible error in Jones v. Casler, 139 Ind. 382, 38 N. E. 812, 47 Am. St. Rep. 274. The question relative to the weight of the evidence was one wholly for the determination of the jury. That the trial court in giving the charge in controversy clearly invaded the province of the jury and therefore erred, is settled beyond controversy, not only by the holding in Jones v. Casler, supra, but also by the following cases: Blizzard v. Applegate, 61 Ind. 368; Fulwider v. Ingels, 87 Ind. 414; Shorb v. Kinzie, 100 Ind. 429; Cline v. Lindsey, 110 Ind. 337, 11 N. E. 441; Durham v. Smith, 120 Ind. 463, 22 N. E. 333; Newman v. Hazelrigg, 96 Ind. 73; Finch v. Bergins, 89 Ind. 360; Lewis v. Christie, 99 Ind. 377; Billings v. State, 107 Ind. 54, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77; Indianapolis St. Ry. Co. v. Taylor, 164 Ind. 155, 72 N. E. 1045, and cases there cited. There is a sharp conflict in some essential respects between the witnesses who testified in behalf of appellant and those who testified on the part of the appellee, and under the circumstances there is nothing in the record to disclose that the instruction in question was not prejudicial to appellant. The latter complains of the action of the court in giving certain instructions at the request of appellee, and in refusing others over its request; but the alleged errors in giving these

instructions are not properly assigned in the motion for a new trial, and therefore cannot be reviewed in this appeal. Other questions are presented and discussed by appellant's counsel, some of which may be said to be decided by our holding on the points raised in respect to the complaint, and in regard to the others it may be said that it is not clear that they will necessarily arise at the new trial. Therefore, these questions are not considered.

For the error in giving instruction No. 4 the judgment below is reversed, and the cause remanded, with instructions to the lower court to grant appellant a new trial and for further proceedings not inconsistent with this opinion.

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MONTGOMERY, J. Counsel for appellees earnestly insists that the charge in this case does not show with required certainty, that the person intended to be defrauded is the one whose name is alleged to have been forged; and in support of this contention cites, Shinn v. State, 57 Ind. 144, and Yount v. State, 64 Ind. 443. In the Shinn Case the accused was charged with having uttered a forged note purporting to have been executed by "S. B. Skinner" with intent to defraud "one Solomon B. Skinner," and upon appeal this court said: "It cannot be inferred either as a matter of fact or of law, that Solomon B. Skinner was the person meant by 'S. B. Skinner,' which was subscribed to the note on which the charge of forgery was predicated. So far as mere inference can go, and that is all, apparently, that is relied upon in the second count of the indictment, it would be just as reasonable to infer that Stephen, Silas, Solon, Smith, Samuel, or Saul B. Skinner was the person meant or intended by the name 'S. B. Skinner,' as to infer that Solomon B. Skinner was the person thereby meant and intended. Such a matter as this ought not, in our opinion, to be left to mere inference in an indictment." In the Yount Case, the defendant was charged with having forged a note payable to “E. J. Schweitzer" and having the indorsement "E. J. Schweitzer," with intent to defraud one "Emily J. Schweitzer," and this court held the indictment insufficient, upon the author. ity of the Shinn Case. It is a well-settled

principle of criminal pleading, that the full Christian and surname of persons mentioned should be given, unless the same are averred to be unknown. Gardner v. State, 4 Ind. 632; Zellers v. State, 7 Ind. 659; Gordon v. State, 59 Ind. 75; Burton v. State, 75 Ind. 477. It is evident that the decision in the cases cited in behalf of appellees rested primarily, if not wholly, upon that principle; and, consequently, it was held that the identity of persons was not sufficiently shown in the indictment by the use merely of initial letters of the Christian name.

The charge in the case under consideration is wholly different. In the first and second counts of the information, the name appearing to the alleged forged notes is "William Baxter, Sr.," and it is averred that the notes were uttered with intent to defraud "the estate of said William Baxter, Sr." In the third count the notes purport to have been signed by "William Baxter," and it is charged that they were forged with intent to defraud "the estate of William Baxter, now deceased." The cases cited are not decisive of the question before us. The identity of name in the present charge is exact, and it requires no presumption or inference to justify the belief that but one person by that name was mentioned. It is only by indulging in speculative doubts that we may become fairly uncertain whether the pleader had in mind two persons of the same name, or only one. We are of opinion that the affidavit and information are sufficiently certain in this respect.

The petition for a rehearing is overruled.

(37 Ind. App. 439) AMERICAN WINDOW GLASS CO. v. INDIANA NATURAL GAS & OIL CO. et al. (No. 5,488.)

(Appellate Court of Indiana. Division No. 1. March 9, 1906.)

1. MINES AND MINERALS-OIL AND GAS LEASE -CONSTRUCTION-LENGTH OF TERM.

Under an oil and gas lease, giving the lessee certain rights "for a term of 12 years, and so long thereafter as petroleum, gas, and mineral substances can be procured in paying quantities or the payments hereinafter provided for are made," the word "or" should be read "and." so that the term was limited to 12 years, unless oil or gas was procured. 2. SAME-EXPIRATION OF TERM-RIGHT TO DECLARE FORFEITURE-WAIVER.

Where an oil and gas lease gave the lessee a right to explore the land for oil and gas for a period of 12 years, and so long thereafter as oil or gas should be produced, and provided for the payment of annual rentals, the acceptance of an annual payment after the expiration of the 12-year period, and the execution of a receipt stating that the payment continued the lease in form for another term, did not extend the lease for an additional term of 12 years, but did constitute a waiver of the right to claim a forfeiture at the end of the 12-year period, so as to entitle the lessee to notice and a reasonable time thereafter to comply with the terms of the lease before forfeiture.

3. TRIAL-QUESTIONS OF FACT AND LAWREASONABLE TIME.

What is a reasonable time within which to perform an act is usually a question of fact, though, if the facts are undisputed or clearly established, it may be a question of law. 4. PRINCIPAL AND AGENT-PAYMENT TO AGENT -EFFECT.

Where an oil and gas lease provided for a certain annual rental, and stipulated that a deposit in a certain bank to the credit of the lessor should constitute payment, a deposit of a payment after the expiration of the term limited by the lease, which payment was accepted by the bank without notice from the lessor not to do so, was in effect a payment to the lessor.

Appeal from Circuit Court, Wells County; Edwin C. Vaughn, Judge.

Action by the American Window Glass Company against the Indiana Natural Gas & Oil Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Carroll & Dean, Dailey, Simmons & Dailey, and Cantwell & Simmons, for appellant. W. O. Johnson, W. H. Eichhorn, Miller, Elam & Fesler, and Blacklidge, Shirley & Wolf, for appellees.

MYERS, J. The parties to this action are each claiming to be the owners of the natural gas, oil, and other mineral substances underlying certain real estate in Grant county, Ind., with the exclusive right to enter upon, prospect, and remove such mineral substances therefrom; such ownership being based upon certain contracts or leases exe'cuted by the landowners, and not otherwise The claim of appellee is founded upon four separate leases, two executed April 5, and two March 12, 1888, by the then landowner, James S. Wilson, to one Leonard H. Best, and by virtue of various written assignments of these leases, thereafter made, on July 1, 1890, appellee became vested with all the rights of the original lessee. These leases and assignments were all duly recorded prior to the execution of the leases under which appellant claims the ownership of said gas, oil, etc. The leases to appellant, two in number, were executed on April 15 and June 18, 1901, by Frank Wilson, Louie Wilson, his wife, and Frank Wilson, guardian of Wade H. Wilson, grantees of James S. Wilson. All of said leases, in so far as they affect the question here for decision, are practically of the same tenor.

The overruling of appellant's motion for a new trial is assigned as error. The reasons assigned for a new trial are: (1) The decision of the court is not sustained by sufficient evidence. (2) The decision of the court is contrary to law. Under this assignment of error appellant insists that at the time of the execution of the leases to it the leases by James S. Wilson to Best were without force and effect and no longer enforceable against the property owner. If this be true, the judgment must be reversed. Therefore the determination of appellee's claim to the

oil and gas will be decisive of this controversy. The leases under which it claims stipulate that "for the purpose and with the exclusive right of drilling, mining, and operating for petroleum, gas, or any mineral substance on said land, and appropriating the said products so obtained to his own use and benefit, except as hereinafter provided, and removing the same from said land for the term of 12 years and so long thereafter as petroleum, gas, or mineral substances can be procured in paying quantities or the payments hereinafter provided for are made according to the terms and conditions attaching thereto, * * * and the right to erect * machinery, tanks, pipe lines, and other property necessary for the prosecution of said business, and right of way over,

* and, should gas alone be found in sufficient quantities and under circumstances making it profitable to pipe the same to other localities, the said party of the second part shall pay to the said party of the first part $100 per annum for the gas from each well, when so utilized, and sufficient gas to heat and light the dwelling on said premises, said payment to be accepted by the said party of the first part as full consideration and in lieu of any other royalty, to com

mence operations for said drilling and mining purposes within one year from the execution of this lease, or in lieu thereof, for delay in commencing such operations and as a consideration for the agreements herein contained, thereafter to pay $36.00 per annum, payable in advance each year until such operations are commenced and a well completed. A deposit to the credit of the party of the first part in the Marion Bank, of Marion, Indiana, shall be considered a payment under the terms of this lease."

The undisputed facts in this case, other than those shown by the leases and as heretofore stated, are that on February 1, 1893, Frank and Louie Wilson and Wade H. Wilson, by conveyance from James S. Wilson, became the owners of the land described in the complaint; that all rentals for the delay in developing the lands, until February, | March, and April, 1901, were duly paid and accepted by the landowners; that the rentals for the years 1901 and 1902, ending February, March, and April, 1903, were by appellee deposited in the Marion Bank of Marion, Ind.; that the landowners had not personally, nor does it appear that any one on their behalf had, notified the bank not to receive such rentals; that the rental for the year ending in 1901 was paid in February or March, 1900, by a representative of appellee, to said Frank Wilson; that the landowners, after said last payment, did not receive any payment from appellee or from said bank; that appellee did not, nor did its assignors or any other person on its behalf, ever take possession of the real estate for any purpose prior to May 1, 1902; that on said last date appellee, by its agents and servants, entered

upon said real estate over the objections and orders of such landowners, and constructed derricks, and continued its operations thereon until it had constructed five gas wells, and was about to commence piping the gas therefrom, when appellant applied for and obtained a temporary restraining order against appellee company, restraining it from piping or removing any gas or oil from said wells; that appellant has complied with all the terms and conditions of the leases under which it is claiming the right to such gas and oil. Upon final hearing the restraining order theretofore issued was dissolved, and a finding and judgment entered for appellee. It will be noticed that the leases under which appellee is claiming gave to it certain expressed rights "for a term of 12 years and so long thereafter as petroleum, gas, or mineral substances can be procured in paying quantities, or the payments hereinafter provided for are made according to the terms and conditions attaching thereto." This language is said to be ambiguous and uncertain as to meaning. This is true, but the ambiguity is caused by the use of the word "or," instead of "and," thereby subjoining the stipulation, "the payments hereinafter," etc., as an alternative. This was not the intention of the parties. It would be unreasonable to suppose that in one breath they would be so careful in fixing the time when the leases were to expire and in the next undo it all by stipulating for a nominal annual payment to run indefinitely. The 12-year clause was incorporated into the leases for a purpose, and it is the duty of the court to so construe the contracts as to give them effect, if it can be done consistent with the rules of law, to the end that the intention and purpose of the parties may be effectuated. To our minds the language of the leases last above quoted evidences an intention on the part of the lessor to grant to lessee the exclusive right for the term of 12 years to operate upon said land for petroleum, gas, etc., or the right to delay such operation for such term by paying a certain stipulated annual sum as compensation for such delay; but, in case lessee should in the meantime explore such land and procure the granted product in paying quantities, while this condition existed the lease would continue, although it may go beyond the limit of the 12-year period. The evident intention of the landowner was to have his land developed, and the lessee by the 12-year stipulation in the leases is given an agreed fixed time within which to develop the land and provide a way of utilizing the mineral substances thus obtained. Therefore, in our opinion, had the landowners, at the end of the 12-year term, notified appellee that they would not receive any further payments, and refused to accept the same, and before payment to the bank gave it notice not to receive any payments for their use and benefit on account of these leases, the rights of appellee under the leases would have ter

minated. American Window Glass Co. v. Williams, 30 Ind. App. 685, 66 N. E. 912; Indiana Natural Gas & Oil Co. v. Grainger, 33 Ind. App. 559, 70 N. E. 395; Western Penn. Gas Co. v. George, 161 Pa. 47, 28 Atl. 1004; Cassell v. Crothers, 193 Pa. 359, 44 Atl. 446; Murdock-West Co. v. Logan, 69 Ohio St. 514, 69 N. E. 984; Brown v. Fowler, 65 Ohio St. 507, 63 N. E. 76; Northwestern, etc., Co. v. City of Tiffin, 59 Ohio St. 420, 54 N. E. 77; Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271, 36 L. R. A. 566. The facts here show that the property owners accepted from appellee the thirteenth advance annual payment, in the same amount and for the same purpose as theretofore paid by appellee under its leases; that they acknowledged such payment by executing a receipt therefor, which receipt includes the statement, "which payment continues said lease in force for another term." In our opinion this transaction alone would not be sufficient to extend such leases for an additional term of 12 years, but it is sufficient to constitute a waiver by the landowners of the definite time of termination therein fixed. It was therefore a waiver of their right to claim a forfeiture of the leases at the end of the 12-year period, and effective to require notice to the lessee and a reasonable time thereafter to comply with the terms of the lease before forfeiture.

There is no claim of fraud or bad faith any. where in this deal, whereby the landowners were overreached or induced to grant such waiver. It must be presumed that they accepted the thirteenth payment with full knowledge of all the facts, as well as its legal effect. They were at liberty to insist upon a termination of the leases according to their terms or to waive such stipulations. For a valuable consideration they choose the latter. By their own voluntary choosing they must be content. Therefore to give the transaction the force we have ascribed to it does not take away from the landowners the right to declare a forfeiture of such leases; but before they would be entitled to such forfeiture, under the decisions of our Supreme Court applicable to this special class of contracts, they must give appellee a reasonable time in which to develop the lands after notice of such intention. Consumers', etc., Co. v. Littler, 162 Ind. 320, 70 N. E. 363; Consumers', etc., Co. v. Worth, 163 Ind. 141, 71 N. E. 489; Consumers', etc., Co. v. Ink, 163 Ind. 174, 71 N. E. 477; Lafayette Gas Co. v. Kelsay, 164 Ind. 563, 74 N. E. 7; Indiana, etc., Co. v. Beales (Ind. Sup.) 76 N. E. 520. In this class of cases a reasonable time, as a rule, is a question of fact and not one of law; for its determination largely depends upon the circumstances surrounding the particular case and the means and ability of the person by whom the contract is to be performed. See Consumers', etc., Co. v. Littler, supra, page 329 of 162 Ind., page 363 of 70 N. E.; Island Coal Co. v. Combs, 152 Ind. 379, 387, 53 N. E. 452; Randolph v. Frick, 57 Mo. App. 400. Where the

facts are undisputed or admitted, or are clearly established, "reasonable time" has been held to be a question of law; but should the question of reasonable time depend upon any controverted facts, or "where the motives of the party enter into the question, the whole is necessary to be submitted to a jury before any judgment can be formed as to whether the time was or was not reasonable." Words and Phrases, 5977. In Scannell v. American Soda Fountain Co., 161 Mo. 606, 61 S. W. 889, reasonable time is defined to be such "time that preserves to each party the rights and advantages he possesses, and protects each party from losses that he ought not to suffer." To the same effect is the language of the court in Bowen v. Detroit City Ry. Co., 54 Mich. 496, 20 N. W. 559, 52 Am. Rep. 822. The court in Cameron v. Wells, 30 Vt. 633, quotes from Graham v. Van Dieman's Land Co., 11 Exch. 101, that "reasonable time will not begin to run until some one interested in the matter calls for something to be done respecting it."

The only landowner who testified in this case was Frank Wilson. In this matter he seems to have been acting, not only for himself, but also for his wife and as guardian of Wade H. Wilson. He received what is termed "land rentals" for the year ending in 1901 from a Mr. Branch, representing appellee. Branch died prior to the trial of this cause. From the testimony of Wilson it appears that in February or March, 1900, and at the time he received such rentals, Branch told him "they were going to operate the lease next year, making preparations." The witness was then asked the following question: "I will ask you if you did not state to him, in that connection, that unless they did operate that lease that you would not permit them to hold it any longer?" Answer: "Yes, sir." This seems to be all that occurred between the parties at the time the payments were made in 1900 with reference to when operations on these lands were to commence. Whether the parties considered this conversation as referring to the calendar year 1901 or the year for which appellee was making payment, would make but little difference, as appellee, without any notice from the landowners that they would not receive any more payments, paid to the bank, as provided in the leases, the fourteenth annual payment when it became due. Such payment, being accepted by the bank for the use of the Wilsons, and without notice from them not to do so, in a legal sense constituted a payment to the Wilsons, and by reason thereof extended the leases until 1902. Lafayette Gas Co. v. Kelsay, supra; Indiana, etc., Co. v. Beales, supra. But, aside from the payments made to the bank, nothing further was said or done by either of the parties until about the time the payments for the fourteenth year became due, which was in February and March, 1901. Some time in the latter part of January, 1901, a representa

tive of appellant called upon Wilson relative to leasing the same lands covered by the leases of appellee, and was told by Wilson that he would pot do anything about leasing the land until he had heard from the Chicago parties, meaning appellees. But we find no evidence in the record where the matter was taken up with appellees, nor do we find any evidence showing any further notice to appellees of intention to terminate the leases, nor do we find any evidence of notice to the bank not to receive such rentals, although Wilson acknowledged having received notice from the bank that it had received the same for his account. The first positive steps taken by the Wilsons to forfeit the leases, as shown by the evidence, was when they leased the land to appellant. As we have said, these latter leases were made in April and June, 1901. Under this state of facts we cannot say, as a matter of law, that appellee was called upon to do anything toward developing the lands prior to the attempted forfeiture in April and June. The testimony of Wilson covers 50 typewritten pages of the record, and from a careful examination of his testimony we think its weight and the inferences to be drawn therefrom are matters for the trial court, and its conclusion upon the questions of notice to appellee, and as to reasonable time in which to develop the territory were questions of fact, and the court's finding thereon, ought not to be disturbed on appeal.

Any delay by appellee in the beginning or prosecution of the work, after the execution of the leases to appellant, have no bearing upon the decision of this case. Consumers', etc., Co. v. Ink, supra. Appellant confidently relies upon the case of Bettman v. Harness, supra, for a reversal of the judgment in the case at bar. We admit the case is exceedingly persuasive of appellant's views; but under the construction given this class of contracts and the law, as declared by our Supreme Court on the question of reasonable time to lessees, the Bettman Case on the question of the extension of leases is not applicable. Therefore, if this appeal was prosecuted by the landowners, the judgment should be affirmed.

The remaining question in the case depends upon whether appellant had knowledge of appellees' right at the time it accepted the leases under which it is claiming. Of the recorded leases and their assignments it was bound to take notice. The evidence is undisputed that it knew of the payments and extension of the leases for the additional period of one year. It knew that pending its negotiation for the leases, and at the time it received the same, that appellee had deposited in the Marion Bank money for the use of the landowners, in an amount sufficient, under the stipulations of its leases, to cover a period ending in 1902. From these facts, and other evidence in the record, the trial court was authorized in finding that appellant had 76 N.E.-64

knowledge of appellees' leases and was claiming the gas and oil privileges covered by them. Therefore upon this feature of the case we are inclined to the opinion that appellant occupied no better position than its lessors, for the reason that it cannot be regarded as a bona fide lessee for value without notice.

Judgment affirmed.

(37 Ind. App. 435) MULLEN v. CLIFFORD et al. (No. 5,565.) (Appellate Court of Indiana, Division No. 1. March 8, 1906.) COVENANTS-WARRANTY-BREACH.

A deed of a lot made on January 6, 1902, provided that it was subject to assessments for street improvement after 1901. At the time of the deed certain installments of an assessment for the improvement of a street were a lien against the lot, and installments of an assessment for the improvement of another street, which were primarily a lien against another lot, would, under the statute, become a lien against the lot sold if the other lot should not on sale to satisfy the assessments bring enough for that purpose. This contingency afterwards arose. Held, that there was no breach of the covenant of warranty in the deed.

Appeal from Circuit Court, Madison County; Henry C. Ryan, Judge.

Action by John Mullen against Elmer Clifford and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Ellison & Ellis, for appellant. Byron McMahan and Jno. C. Teegarden, for appellees.

ROBINSON, J. Suit by appellant for breach of covenant of warranty. On January 6, 1902, appellee conveyed to appellant, by deed of general warranty, lot 116 in Evalyn addition to the city of Anderson. The deed was in the ordinary form, except the provision: "Subject to assessments for street improvement after 1901." Prior to that time the city had improved Locust street and assessed lot 114, which lies lengthwise on the street, and adjacent to this lot and within 150 feet of the street are lots 115 and 116. The assessment against 114 was $195, which, the owner having signed the waiver, was given the privilege of paying in installments; the first installment being payable in 1895 and the last in 1904. On May 2, 1901, the holder of Locust street improvement bonds brought suit to foreclose the lien of the assessment against lot 114 and other lots, and a decree was rendered July 28, 1902, and the lots subsequently sold under the decree; appellant purchasing the same, paying $100 for lot 114, $110 for lot 115, and $108.97 for lot 116. Appellees were parties to this suit. Appellant was not. Among the defendants in that action was the holder of Second street improvement bonds, who filed a cross-complaint, asking to foreclose a lien against lot 114 and other lots; Second street running in front of lots 114, 115, and 116. In the decree the lien of this cross-complaint

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