On March 4,1914, appellee filed his complaint in two paragraphs against appellants, by which he sought the cancellation of a certain oil and gas lease, which he alleges he had executed to appellant Alva M. Rembarger. The first paragraph contains a copy of said lease, which, it is alleged, was executed on October 3,1911. It provided in substance, among other things, that it was to run for ten years from its date and as much longer as mineral, oil, natural gas, or other valuable substances should be found on such premises in paying quantities; that appellee was to have one-eighth of all the oil produced and saved on the leased premises; that the lessee was to pay to the lessor “the sum of free gas for one well (for household use), and $50.00 per year for the gas from each and every well drilled on the premises, to
Appellants then’ answered by general denial, and also by two affirmative paragraphs of answer, to which a reply in general denial was filed.
Trial was had by the court, and judgment was rendered in favor of appellee on-the first paragraph of complaint, reforming and canceling such lease, and giving appellee sixty days to remove his property from the premises. Appellants filed a motion for a new trial, which was overruled and proper exceptions reserved. The errors assigned by appellants are based on the action of the court in overruling their demurrers to each paragraph of the complaint, and in overruling their motion for a new trial.
1. Appellants have stated a number of points, and cited a number of authorities, in support of their contention that the court erred in overruling their demurrers to each paragraph of the complaint. Such contention, however, is not based on any defects stated in the memorandum filed with the demurrer, and are therefore waived. $344 Burns 1914, Acts 1911 p. 415; State, ex rel. v. Bartholomew (1911), 176 Ind. 182, 95 N. E. 417, Ann. Cas. 1914B 91; Spurgeon v. Olinger (1917), 64 Ind. App. 176, 115 N. E. 680.
Appellants base their alleged error in overruling their motion for a new trial on the grounds that the decision of the court is not sustained by sufficient evidence and is contrary to law.
Appellants first contend that the evidence fails to establish any alleged violation of the lease in question. The only violations alleged" are the failure to pay the annual amounts for each well, while gas therefrom was used off said premises, and to furnish free gas for household use. The trial court evidently found that such allegations had been- sustained, and, as there was evidence which tends to support the same, we are bound by such finding. It only remains for this court to determine whether such violations are sufficient to warrant the judgment rendered.
3. 4. voked. Ploughe v. Boyer (1871), 38 Ind. 113; Geiser Mfg. Co. v. Lee (1904), 33 Ind. App. 38, 66 N. E. 701; Handley v. Sprinkle (1904), 31 Mont. 57, 77 Pac. 296, 3 Ann. Cas. 531; Sunset Tel., etc., Co. v. Williams (1908), 162 Fed. 301, 89 C. C. A. 281, 22 L. R. A. (N. S.) 374. In harmony with this rule it is well settled that, to entitle a lessor of mining property to equitable relief by way of forfeiture or cancellation of a lease, for the lessee’s failure to make stipulated payments, it must appear that there is not an adequate remedy at law by suit for damages. 2 Black, Eescission and Cancellation 1139, §472. The burden is upon the plaintiff to establish an absence of such remedy, when relief in equity is sought. Kyle v. Frost (1868), 29 Ind. 382; Seymour Water Co. v. City of Seymour (1904), 163 Ind. 120, 70 N. E. 514; Howerton v. Kansas, etc., Gas Co. (1910), 81 Kan. 553, 106 Pac. 47, 34 L. R. A. (N. S.) 34, 47.
5, 6. It is also well settled that, while oil and gas leases in the first instance usually grant to the lessee merely the right to explore for such products, if such exploration and development is made in accordance with the terms of such lease, and oil or gas is produced thereby as therein provided, such lessee acquires an interest in such land. Thornton, Oil and Gas (2d ed.) §332a; Ohio Oil Co. v. Griest (1902), 30 Ind. App. 84, 65 N. E. 534; Carr v. Huntington Light, etc., Co. (1904), 33 Ind. App. 1, 70 N. E. 552; Shenk v. Stahl (1905), 35 Ind. App. 493, 74 N. E. 538; Ramage v. Wilson (1910), 45
7. While it is true that provision for forfeitures in oil and gas leases are for the benefit of the lessor, and are mcfre strictly enforced than in the ordinary lease between landlord and tenant, yet it is not a rule of universal application that all defaults made by the lessee entitle the lessor to declare a forfeiture, or to have a decree canceling the lease. If such forfeiture be for the nonpayment of money or the perfox-mance of some other act, equity regards such paymexxt or performance as the real or principal ixxtent and the forfeiture merely as an accessory, where time is not made of the essence of the contract, axxd will xxot exxforce such forfeiture, where the actual damages sustained by the other party can be adequately compexxsated. Thornton, Oil and Gas (2d ed.) 262, §187; Maginnis v. Knickerbocker Ice Co. (1901), 112 Wis. 385, 88 N. W. 300, 69 L. R. A. 833, note; Lynch v. Versailles Gas Co. (1895), 165 Pa. St. 518, 30 Atl. 984; Edwards v. Iola Gas Co. (1902), 65 Kan. 362, 69 Pac. 350; South Penn Oil Co. v. Edgell (1900), 48 W. Va. 348, 37 S. E. 596, 86 Am. St. 43.
7. Applyixig these rules to the facts ixx the ixxstant case, it should be xxoted that there is no claim on the part of appellee that there has been a failure to explore or develop the premises, or to find and produce oil and gas. Therefore the case presented is not one where the lessee has sinned away his opportu
We therefore conclude that the court erred in overruling appellant’s motion for a new trial, for which error judgment is reversed, with instructions to sustain such motion, and for further proceedings not inconsistent with this opinion.