City of Circleville v. Sohn.

it is with respect to many strictly ministerial duties, its performance, or the omission to perform it, is not the exercise of legislative or judicial power, nor is it discretionary.

We are of opinion, therefore, that a municipal corporation should be held liable for injuries caused by a dangerous defect or obstruction in a street or sidewalk which it suffers to remain after reasonable notice of its existence, though it arose in the construction or alteration of the street or sidewalk in accordance with a plan adopted by the municipal authorities.

We express no opinion in regard to the weight of the evidence. There was not a total lack of evidence tending to support the issues for the plaintiff, and its sufficiency is for the jury under proper instructions, and for the lower courts.

Judgment affirmed.

SHAUCK, J., dissents.

Ohio Oil Co. v. Lane.

OHIO OIL Co. v. LANE.

Oil and gas contract-Lease by land owner to operating company— Question of payment for well not used-Construction of contract.

A contract between the owner of lands and a company operating in oil and gas, whereby such minerals are granted in place to the operating company upon the stipulation that if gas only is found it will pay a fixed sum per year for each well "while the same is being used off the premises," and containing no stipulation inconsistent therewith, should not be so construed as to require it to pay such sum for a gas well, whose product is not used, even though the jury should be of the opinion that it might have been so used off the premises without financial loss to the company.

(Decided December 13, 1898.)

ERROR to the Circuit Court of Auglaize county.

The controversy arises out of the second cause of action in the petition filed in the court of common pleas by Lane against the oil company. That cause of action as alleged by him is, in substance, that on the fifth of May, 1890, being the owner of 120 acres of land lying in Mercer county, he entered into a contract with the oil company, a copy of which is in the record, its material stipulations being as follows:

"In consideration of the sum of $420 dollars, the receipt of which is hereby acknowledged, Thomas A. Lane of Transit, Hamilton county, Ohio, first party hereby grant unto The Ohio Oil Company, an Ohio corporation, second party, its successors and assigns, all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and operating for oil, gas or water, and to erect and maintain all buildings and structures,

Ohio Oil Co. v. Lane.

and lay all pipes necessary for the production and transportation of oil, gas or water from said premises. Excepting and reserving, however, to first party the one-sixth (1-6) part of all oil produced and saved from said premises, to be delivered in the pipe line with which second party may connect its wells, namely:

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If gas only is found, second party agrees to pay three hundred dollars ($300) each year, in advance, for the product of each well while the same is being used off the premises, and first party to have gas free of cost to heat six stoves in dwelling house during the same time.

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The second party shall have the right to use sufficient gas, oil or water, to run all necessary machinery for operating said wells, and also the right to remove all its property at any time."

Said second cause of action contains the following allegations:

"That under said agreement, said defendant drilled and constructed upon said land, one well which produces in paying quantities gas only; the said well being drilled and completed about the fifteenth day of February, A. D. 1891; and plaintiff says that said defendant has never made any payment for gas from said well.

Plaintiff avers that said defendant agreed to use the gas produced on said premises within a reasonable time off said premises and thereupon to pay for same, and that said gas from said well was, or reasonably should have been, used off said premises on or before the sixth day of May, A. D. 1891, continually, and that any delay since that time is unreasonable, and thereby defendant became indebted to plaintiff on the sixth day of May,

Ohio Oil Co. v. Lane.

A. D. 1891, in the sum of three hundred dollars ($300) for the gas from said first well.

And plaintiff says that said last mentioned sum has never been paid but that the whole amount thereof together with interest thereon from the sixth day of May A. D. 1891, is, and remains due and owing to the plaintiff from said defendant." The company filed the following answer:

"For answer to the second cause of action in the second amended petition, defendant says: It admits that it has not made any payment for gas, under said contract of lease, and it denies each and every other allegation in said second cause of action contained."

On the trial, the drilling of a gas well on the premises by the company being admitted, the plaintiff was permitted against the objection of the company to introduce evidence tending to prove that the well yielded gas in paying quantities which was explained to mean quantities that would make the well worth tubing if a market for the gas could be had, and that pipe lines were in operation at points from three to five miles from the well for the purpose of conveying gas to various municipalities in the western portion of the state. It was admitted that the oil company did not use the gas or sell it. There was also conflicting evidence as to whether the company could or not have laid pipe to existing lines and thus without loss have sold the gas, the evidence offered by the plaintiff in that regard being objected to by the defendant. Counsel for the defendant requested the court to give the following instructions to the jury:

1. There being no evidence to show that defendant used the gas off the premises from the well

Ohio Oil Co. v. Lane.

upon which rental is claimed in this case, I charge you that your verdict must be for the defendant.

2. I charge you that under the terms of the lease, it was left to the discretion of the defendant, to determine whether it could use or market the gas from this well off from the premises without loss to itself; and there being no evidence that the defendant did not exercise this discretion in good faith, your verdict must be for defendant.

These were refused and the defendant excepted. The court instructed the jury that the defendant admitted that it "did enter into a contract with the plaintiff of the nature and character set forth in the petition a copy of which you will find in the petition." And, further, that if the well drilled upon the premises was a paying gas well and the defendant could by reasonable diligence have found a market for the gas prior to November 27, 1891 (the date of the commencement of the action), then the three hundred dollars would be due. "It was the duty of the defendant if gas was found in the well in paying quantities, and there is no serious controversy on that question, it was the duty of the defendant to make a reasonable effort to find a purchaser for the gas-utilize the gas or find a purchaser so that it could have been utilized off the premises." In various forms the jury were directed to inquire whether the defendant could have placed the gas in market without loss and that if it could the sum of three hundred dollars was actually due with interest.

To the several parts of the charge as given the defendant excepted, and a verdict was returned in favor of the plaintiff for $379.50. The defendant's motion for a new trial was overruled and a judgment was entered on the verdict. The judgment