Citations
- 68 Ohio St. 488
Full opinion text
Price, J.
It is a familiar rule of practice, that a general demurrer admits all facts which are properly pleaded, and for the purpose of testing the cause o£ action set out in the amended petition, the defendant by such demurrer, confesses the truth of the proper averments of that pleading.
Looking to the facts alleged, it is seen, that by' the terms of the oil lease, there is but one condition upon which the lessor could declare a forfeiture of the lease, and that condition is that there should be a well completed by the lessee on the premises within one year from date of the instrument,, or he should pay lessor one hundred and sixty dollars per annum for each year such well should be delayed.
This condition was complied with and one well was. completed, so that from that point forward, there are no provisions by which the landowner may declare and enforce a forfeiture.
The other and material provision now is, that “if the first well shall be a good paying well, the tenant should drill a sufficient number of wells to fully develop said territory as soon as he reasonably can do so.”
It is alleged that the first well produced oil in paying quantities, and that the defendant, coming into •possession and taking the place of the lessee as to the terms of the lease, drilled, two more paying wells, these three being in the northeast corner of one tract, the last of the three having been completed in August, 1894; and that it drilled two paying wells on the east side of -the other tract, one in June, 1893, the other in June, 1898.
Near the exterior line of these premises, wells have been drilled on adjoining lands, which tend to drain oil from the premises of plaintiff, and against which defendant has drilled no protecting wells. This condition of the premises, without effort to further test and develop the territory, had continued for several years before this action was commenced, and the defendant refuses to drill more wells, and refuses to permit the plaintiff or any one for him, to drill and test the balance of the farm. It is charged also, that the defendant is neglectful of the five wells, and operates them at irregular intervals.
Does the case stated in the petition entitle the plaintiff to any relief? If so, what shall it be? The plaintiff, by the terms of the lease, contemplated a fair and reasonable test of all his farm, and did not intend to incumber it with that instrument placed on record, merely to have one corner drilled, and two wells completed on one side of the premises; nor could the lessee or his assignee so understand the obligations therein created.
The case made against the defendant is one of persistent obstinacy and disregard of plaintiff’s rights without any disclosed excuse. He has submitted to the wrong for several years, and sees no sign of a change of conduct on the part of the defendant.
We have no doubt that he states facts which entitle him to some relief in the courts.
He further says he has no adequate remedy at law, because of the transitory nature of oil, and the impracticability of proving the presence or amount of oil in his premises. In other words, a remedy in damages cannot be established. This is admitted, not only by the demurrer, but also in the brief filed for defendant in error. Furthermore, that brief admits and concurs in plaintiff’s claim, that for the same reasons, compensation cannot be made by the court, 'in lieu of specific performance. Yet, the defendant contends against specific performance which is prayed for, and urges, as no doubt was urged in the lower courts, that the subject matter of the controversy, is not such as to justify the court in making a decree of that character. It may be that the lower courts held against the plaintiff on his petition, because a decree of specific performance would not close the controversy; that to compel the defendant to drill and test the territory would imply the retention of the case for supplemental orders and other proceedings -which might become necessary in administering that form of relief. That view may be correct, and'-this court does not differ from the lower court on that point. But that view is no reason for sending the plaintiff out of court empty handed.
The question on the demurrer was not, necessarily, whether or not, the plaintiff states a case which warrants, or requires, the court to decree specific performance of the terms of the lease, as asked in the first branch of the prayer; but is a cause of action stated which entitles him to relief in any form within the jurisdiction of the court, and consistent with the facts alleged?
It is a familiar rule, for which we have numerous precedents, that the ordering of specific performance is in some measure within the sound discretion of the court where it is asked, and there are many cases which disclose circumstances of inequality, hardship, or other considerations which lead' to a refusal of the specific relief, and yet adequate justice is done in some other form in the same case, in order to avoid other actions and settle the rights of the parties. In some instances courts of equity, owing to the peculiar facts of the case on trial, have decreed performance in part and made compensation as to the remainder; and in others, have refused the specific relief entirely, and made such decree as justice and equity would sanction. This is not a new doctrine of practice in actions at law, and certainly not in cases in equity.
In Tiffin Glass Co. v. Stoehr, 54 Ohio St., 157, this court held the following rule of practice: “Where, on the facts stated in a petition, a plaintiff is entitled to a judgment for money, the fact that in his petition he claims the amount to be due him as wages on a contract of employment, instead of as damages for the breach of it, is not material to his right of recovery. A misconception of this kind must be disregarded in passing judgment upon the pleading.”
In the course of the opinion on page 163, Minshall, J., says: “Under the liberal principles of our code, it can make no difference what he termed the number of dollars he conceived himself entitled to recover, provided that on the facts stated, he was entitled to recover something. The judgment rendered was in fact for damages and not for wages; it was for what the plaintiff lost by the breach of the contract by the defendant. The plaintiff then did not mistake his remedy. He had but one, the civil action of the code. This simply required a statement of the facts on which he conceived himself entitled to a recovery of money from the defendant. The petition conformed to this requirement, and stated a cause of action. A prayer for relief is no part of a cause of action.”
Again, in Railway Co. v. Reynolds, 55 Ohio St., 370, this court held to the same effect: The defendant in error in that case sued for breach of a contract in the form of a ticket for passage on the railroad, and-stated all the facts in his petition, and the recovery was for damages in ejecting him from the train. The recovery was affirmed in this court, the holding being that the facts showed a right of recovery for tort, and not merely a breach of contract.
Still later, in Kerr v. City of Bellefontaine et al., 59 Ohio St., 446, an action to recover for machinery and appliances sold and delivered to said trustees for use of the gas works, it is held in the fourth branch of the syllabus: “A petition alleging a sale and delivery by plaintiff to such trustees of machinery and appliances for the use of such works and the nonpayment of the purchase price therefor, though not alleging facts sufficient to entitle him to recover a judgment at law against the municipality, does allege a cause of action for the equitable appropriation of so much of the funds which have accrued or may accrue from the operation of the works as may be necessary to satisfy his just demand.”
These citations are quite sufficient. We have said that the petition does state facts which entitle the plaintiff to equitable relief. What shall it be?
We are of the opinion that, if on the trial of this case, the averments of the petition are sustained by sufficient evidence that in lieu of a decree for specific performance, the lease as to all undrilled lands of the plaintiff should be cancelled and the cloud thereof removed, and that such would be the proper decree to make on the facts alleged in the petition.
The judgment of the circuit court is reversed; the demurrer to' the amended petition is overruled, and the cause is remanded to the circuit court for further proceedings according to law.
Judgment reversed.
Btjrket, C. J., Spear, Davis and Shauok, JJ., concur.