On Petition for Rehearing.
Hadley, J.6. —Appellees complain because we did not consider their motion to dismiss the appeal, grounded on the want of proper parties and the want of notice. There can be no doubt of the rule, as contended for, that all joint judgment defendants must be joined as coappellants in an appeal taken by one or more of them in vacation, but we are not satisfied that this appeal belongs to 'that class. The record shows that the New American Oil & Mining Company, the Crown Oil Company and Thomas McDonald were made parties defendant to the complaint. Both companies appeared, and each filed an answer in general denial. Thomas McDonald appeared and filed a disclaimer in effect that he had no interest, claim or possession in the real estate described in the complaint, or any part thereof.
7. The suit is to quiet title against all adverse claims of the defendants, and McDonald’s disclaimer signified that at the time of filing he had no interest, claim or possession in and to the lands described in the complaint. Such a pleading of itself operates as *409an estoppel, and, between the parties and their privies, is an absolute bar to any further assertion of the right renounced. So the bill, or complaint, should, under our statute (§1084 Burns 1901, §1072 R. S. 1881), have been dismissed at the cost of the plaintiff. 6 Ency. PI. and Pr., 725, and authorities collated in note. Such a pleading is no sense an answer. “It forms no issue to be tried, but simply puts the defendant out of court without further proceedings, leaving the plaintiff to pay the costs.” 1 Works’ Practice (3d ed.), §555.
8. The decree subsequently rendered by the court, as shown by the record, quieting the title of the plaintiffs, was against “all of said defendants herein,” and for costs against the Grown Oil Company. It is not stated that a decree was rendered against McDonald as one of the defendants. After he filed his disclaimer the court had no right to render a decree against him. Having at the very threshold formally informed the Court that he had no interest in the subject-matter of the suit, a decree against him thereafter, even for cost (under §1084, sufra), would have amounted to nothing more than would a decree against one who was not named as a party. McDonald was out of the case from the moment he filed his disclaimer, and assuming that the court proceeded as the statute directs in such cases, we will presume, nothing appearing to the contrary, that the court then discharged him at the plaintiffs’ cost. The two remaining defendants, by name, took a new trial as of right, without mentioning the name of McDonald, but since the record discloses no additional complaint, or amended complaint, affecting McDonald, what took place in the second trial is immaterial, since we think it sufficiently appears that McDonald was not a party in the case at any time after he filed his disclaimer. Motion to dismiss the appeal should be overruled.
*4109. Appellants’ counsel very skilfully and ably argue that this case is not ruled by that class of cases to which Consumers Gas Trust Co. v. Littler (1904), 162 Ind. 320, belongs, because the contract in this case contains a provision not contained in any of the former cases, to wit:
“Second party [oil company] may, at any time, re-convey this grant, and thereupon this instrument shall be null and void.”
It is contended that the provision quoted renders the contract voidable at the pleasure of the company, and that under the rule declared in Knight v. Indiana Coal, etc., Co. (1874), 47 Ind. 105, 111, 17 Am. Rep. 692, which was in force and effect when the contract was made, if voidable at the will of one party to the contract, it is equally voidable at the will of the other. The unsoundness of the argument is found in the fact that the case of Knight v. Indiana Coal, etc., Co., supra, rests upon a principle altogether different from that upon which the Littler class is grounded. The contract in the Knight case related to the mining of coal; to the conveyance of an interest in real estate. In that case the court says: “The owner in fee simple has the power to sell and convey his mines, or any stratum, by deed or grant, so as to create one freehold in the soil and another in the mines, and as a conclusion from the premises, a freeholder of an estate of inheritance may, by deed, create as many freeholds beneath the surface as he can properly designate. Thus, one person may own the surface, another may be entitled, by conveyance, to the iron, another to the limestone, and still another to a stratum of coal; for coal and minerals in place are land, and are subject to a conveyance as such, and the owner of the mineral right has a corporeal hereditament distinct from the surface.” Citing cases. Our statute relating to landlord and tenant rests upon the same foundation; that is, within the meaning of the statute upon the execution of *411a lease, it is implied that the lessor parts with, and the lessee acquires, some vested right in a fixed and certain property interest in the demised premises; such as the right to possess and use the land or tenements, to till the soil and carry away the crops, to enter and take gravel, stone, ore, coal and other fixed substances under the surface, of which the earth and estate are composed. Heywood v. Fulmer (1892), 158 Ind. 658, 18 L. R. A. 491. In this class of leases whatever title,, or right, is acquired under the lease, becomes vested upon the execution of the contract. It is different with contracts relating to the prospecting for gas or oil, ” and, if successful, the mining thereof. It cannot be claimed that the one we are considering belongs to any other class. In addition to the stipulation above quoted, and upon the strength of which it is sought to distinguish the contract, another very characteristic provision is found in the body of the instrument as follows:
“Should second party [company] refuse to pay such rental when due, such refusal shall be construed by both parties hereto as the. act of the second party for the purpose of surrendering the rights hereby granted, and this instrument, in default of the rental, shall be null and void without further notice to second party.”
The peculiar, wandering character of gas and oil precludes ownership in their natural state, and hence they are not the subjects of sale and conveyances until they have been reduced to possession and placed under control by being diverted from their natural paths into artificial receptacles. In such cases the real subject of the contract is the mining of the gas or oil that may be found, on the terms specified. The preliminary exploring is a mere incident that goes for nothing if unsuccessful, and unless oil or gas is found in paying quantities, then there is and was not at the inception of the contract anything to which *412it could, attach. So the title in such contract is at least inchoate until the result of the drilling is ascertained. And if barren territory is developed then there is no lease, no continuing contract, no conveyance of title, because there is nothing to pass under the agreement. Added to this peculiarity is the custom of making such contracts greatly in advance of the demand for the product, the impracticability of drilling until lines of transportation approach within reasonable reach, the delays in beginning operations, secured by the payment of a small sum called rent, sometimes justifiable and sometimes unreasonable, and merely for speculative purposes, the possibility, and occasional practice, of extracting the fluids from under lands through wells on the premises of another, the uncertainty of the discovery, the large profits sometimes realized, the heavy expense of drilling the test well, the total loss of labor and expense in case of failure, these and other like considerations have led courts, long before the making of the contract involved in this suit, to place oil-and-gas contracts, on account of the “known characteristics of the business,” in a class of their own. Gadbury v. Ohio, etc., Gas Co. (1904), 162 Ind. 9, 62 L. R. A. 895; McKnight v. Manufacturers Nat. Gas Co. (1892), 146 Pa. St. 185, 23 Atl; 164, 28 Am. St. 790. Such contracts are not ordinary leases nor within the purview of our statute concerning the relation of landlord and tenant. Hancock v. Diamond Plate Glass Co. (1904), 162 Ind. 146. It follows that the case of Knight v. Indiana Coal, etc., Co., supra, is not an authority in an oil-and-gas contract of the character under consideration.
We have reviewed the original opinion, and remain satisfied that it is correct upon the facts involved. Petition for rehearing overruled.