author: Mr. Justice Culbertson

text:
    Mamie H. Tucker, Appellee, v. Carter Oil Company, Appellant. Carter Oil Company, Appellant, v. Mamie H. Tucker and George Tucker, Appellees.
    Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.
    Walter Davison and Craig & Craig, all of Mattoon, for appellant; L. G. Owen, of Tulsa, Oklahoma, of counsel.
    Murray & Miller, of Vandalia, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Fayette county enjoining the Carter Oil Company (hereinafter referred to as defendant) from disconnecting the gas line which ran to the residence of Mamie H. Tucker (hereinafter called plaintiff). The suit was filed originally by plaintiff as against the defendant, and the defendant filed a counterclaim and brought in the husband of plaintiff, George Tucker, as an additional defendant in its counterclaim, in which it sought to have plaintiff and her husband enjoined from using gas and making reconnections with a line when disconnected by the defendant company.

The evidence and the pleadings disclose that the plaintiff was the owner of certain real estate in which an oil and gas lease was given to one Von Almen in 1936. That lease was assigned in 1937 to defendant company. Thereafter, on June 23, 1939, the defendant company assigned the lease to I. Rudman. That lease included 40 acres of land in addition to the 20-acre tract involved in this proceeding. On October 29, 1940, Rudman reassigned the oil and gas lease on the 20-acre tract herein involved, to the defendant company, which agreement was made effective as of September 1, 1940. During the period while Rudman held the lease on the premises the plaintiff was permitted, from October 1, 1939, to use what is known as “wet gas” or “casinghead gas” from one of the oil wells on the 20-acre -tract, for domestic purposes in her residence property, which was located on the adjoining 40-acre tract. The defendant company disconnected the gas from the residence of plaintiff after the lease on the 20 acres was reassigned to the plaintiff Rudman. The plaintiff thereafter filed this action to enjoin the defendant company from disconnecting them.

The facts herein referred to were set forth in such complaint. The defendant company filed an answer and a counterclaim, setting up that the agreement by which plaintiff was permitted to use the wet gas on the 20-acre tract leased to Rudman, was simply a voluntary oral agreement, without consideration, and constituted a mere license. It was shown that the plaintiff had been notified by defendant to disconnect the connection and that the defendant had disconnected the gas a number of times, and, likewise, that plaintiff and her husband had repeatedly reconnected at different points on the line. It was also contended that the use of the wet gas was dangerous and in violation of the common law and statutes of the State of Illinois but, in view of what we have to say about the issues in this case, it is not necessary that we determine that question. It is the contention of the defendant company that, in any event, the oral agreement constituted a mere license, which was revocable at will and that the notice given by the defendant company to the plaintiff constituted a revocation of the license.

There was evidence to the effect that plaintiff and Eudman had entered into the agreement with reference to the use of the gas upon the basis of certain concessions by the plaintiff, but no specific period during which such gas was to be used was agreed upon, nor is there any evidence in the record that any particular point of connection was understood or agreed upon. The plaintiff contends that her agreement with Eudman constituted an equitable charge or servitude upon the land, which was irrevocable in equity, and that the rights of the plaintiff could be sustained on the theory of being a license, coupled with an interest. In this coiinection, plaintiff states that through the agreement with Eudman, all of the consideration required of plaintiff had passed and that the agreement was completely executed so far as plaintiff was concerned.

The court below had denied the application for á temporary injunction but, as indicated at the outset of this opinion, had entered a decree permanently enjoining the defendant company from disconnecting the gas line which ran to the residence of plaintiff from the oil well on the premises involved in this action, in which the defendant company is the lessee. The adjoining premises, upon which the residence of plaintiff was located, was not involved in the lease, pursuant to which the defendant company was operating the oil wells.

It is the contention of defendant that if the right to use the gas from the premises constituted an interest in land, the oral agreement attempted to be made, was void and in violation of the statute of frauds, and that such oral agreement relied upon by plaintiff as giving her the right to use the gas in her residence property, created a bare license. It was also contended that this is true irrespective of whether or not plaintiff paid a consideration for the oral agreement and that the oral agreement was revocable at will. It is additionally asserted that the reassignment to the defendant" company constituted a revocation, and that, in any event, the notice served on the plaintiff constituted an express revocation of the license.

We have previously, in the case of Hein v. Shell Oil Co., Inc., 315 Ill. App. 297 (decided at this term), indicated that an action for injunction, seeking to restrain a breach of contract, being in substance a suit for specific performance, is governed by rules applicable to that remedy (Chicago Municipal Gas Light & Fuel Co. v. Town of Lake, 130 Ill. 42, 60), and that such equitable enforcement of agreements will not be granted where the agreement is vague, indefinite and uncertain (Cleveland v. Martin, 218 Ill. 73, 89; Streator Independent Telephone & Telegraph Co. v. Interstate Independent Telephone & Telegraph Co., 142 Ill. App. 183, 193). The agreement in the instant case is admittedly vague, indefinite and uncertain in that the plaintiff’s testimony showed that the amount of gas to be received was not fixed. Neither was the period for which it was to be received, nor, in fact, was the place from which she was to get the gas specified.

In common with the lease provisions in the case of Hein v. Shell Oil Co., Inc., supra, the only provision relating to domestic use of gas in the instant case, was a clause referring to the use of gas from wells where “gas only” is found. There is no contention that any rights accrued to plaintiff in this connection, other than through the oral agreement with Rudman, and the sole question to be determined is whether or not that agreement is now binding on the defendant company.

The Supreme Court of this State has determined that there cannot be any title to any specific quantity of gas or oil in place, and that if there is a grant of oil or gas, the title vests in the person to whom the grant is made when the oil or gas is produced and reduced to possession (Triger v. Carter Oil Co., 372 Ill. 182, 185). On that basis, in view of the agreement to which plaintiff testified, between herself and Rudman, there was an undertaking to deliver certain personal property (that is, the wet or casinghead gas, after it had been produced and recovered), to the residence of plaintiff on adjoining premises and not on the premises where it was being produced. We must conclude that such an agreement created a bare license that did not run with the land, and that license was clearly terminated, at least, by the notice given by the defendant company.

Another factor which militates against the contention of the plaintiff in the instant case, is the circumstance that the residence property affected by the agreement is not located upon the premises assigned to the defendant company, but is actually located upon adjoining premises. As pointed out in the case of Keogh v. Peck, 316 Ill. 318, 327, for a covenant or agreement to run with the land, the act to be done or permitted must concern the land or the estate granted.

The oral agreement upon which plaintiff relies clearly created a mere license, which as we have pointed out, was expressly revoked by the notice given by the defendant company, if not by the actual assignment from Ruchnan. As stated by the Supreme Court of our State, in the case of Woodward v. Seely, 11 Ill. 157, at page 165.

“It makes no difference that the complainants may have acted upon the parol license and erected valuable buildings which will become worthless in -case the license is revoked. Before acting so imprudently they should have acquired permission by deed to overflow the land of defendants. Mor can complainants call upon a Court of Equity to enforce the license, upon the ground that they have made valuable improvements and expended their money relying in good faith upon it.”

Many cases have similarly concluded that such a verbal license might be rescinded at any time, that it vested no interest in the land involved, and that equity would not relieve the licensee from the position in which she had placed herself by her own improvidence (Bontz v. Stear, 285 Ill. 599; Morse v. Lorenz, 262 Ill. 115; Baird v. Westberg, 341 Ill. 616, 620; Boland v. Walters, 346 Ill. 184).

In the case of Boland v. Walters, supra, the court says at page 188:

“Unless the evidence be clearly to the contrary, a Court will presume that a parol agreement to impress real property with a servitude was made with a knowledge of the provisions of the Statute of Frauds, and was therefore intended as a license only, and not as an easement. A parol license is revocable although a consideration has been paid or expenditures have been made upon the faith of the agreement.”

There are no facts present in the instant case which would make such general rule of interpretation inapplicable on the ground that to do so would constitute a fraud upon the plaintiff. The facts in the instant case disclose that the defendant company had nothing whatever to do with permitting the plaintiff to use the gas, that plaintiff had made her arrangement with Rudman, and that she and her husband had actually signed a release so far as Rudman’s company was concerned to relieve Rudman’s organization from liability for damages.

We have examined the contentions of the plaintiff as to the question of notice and we find therein, and in the facts disclosed in this record, no reason for departing from the rule announced in the cases cited herein, to the effect that such license is revocable.

We must, therefore, conclude that the decree of the circuit court of Fayette county should be reversed and that such court should be directed to dismiss the complaint for want of equity, and to grant to the defendant oil company the injunctive relief as prayed for in the counterclaim filed herein.

Reversed and remanded, with directions.


source: Caselaw Access Project

license: Public Domain

text:
    Clara E. Fowler, Appellee, v. Nelson H. Fowler, Appellant.
    Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.

      Karns & Bandy, of East St. Louis, for appellant.
    Arthur W. Summers, of Eldorado, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Saline county, Illinois, granting a divorce, custody of a minor child, and alimony of $60 per month, together with costs of suit and solicitor’s fees to appellee Clara E. Fowler (hereinafter called plaintiff) from appellant Nelson H. Fowler (hereinafter called defendant).

The record in this case discloses that plaintiff filed her suit for divorce in the circuit court of Saline county on May 7,1941 and alleged, among other things, that plaintiff and defendant were married on or about December 31, 1937 and separated on or about January 1,1941. She further alleged that one child, a son, was born of the marriage, which child is still living. The complaint contained the usual averments, and assigned as the ground for divorce, the infidelity of the defendant, and it was particularly charged in the complaint that on or about January 15,1941, at or near Eldorado, in the State of Illinois, the defendant committed adultery with a woman who, for purposes of the suit, was designated as “Jane Doe” and that at divers other times and places the defendant had committed adultery with the same woman and with various other women. The complaint alleged that the defendant was engaged in the business of carriage of merchandise for hire, and that he had a $60 per week income therefrom. Plaintiff set forth that she was possessed of no property or income, except household goods which had been given to her by the defendant. Plaintiff prayed for a divorce, for custody of the child, and for alimony for herself and child, together with solicitor’s fees and costs of prosecution of the suit. To this complaint, the defendant, on June 13, 1941, filed his answer. By his answer, the defendant admitted the marriage and hirth of the son, and denied specifically the charge of adultery as set out in the complaint, and further denied that he had committed adultery with the person designated as “Jane Doe” at the time or place mentioned, and specifically denied that at any time or place he had committed adultery with said woman, or with any other woman. Defendant, by his answer, denied that plaintiff was entitled to the relief sought.in her complaint, and prayed to be dismissed from said suit, with his costs. This case came on for hearing upon the complaint and answer on September 8, 1941, and was heard by the court, without a jury, and on September 9 a decree was signed and entered in said cause, by the terms of which plaintiff was given the relief as hereinbefore set forth.

The decree in this case was entered by the court on evidence offered by the plaintiff and her witnesses, as the defendant, at the close of the plaintiff’s case, moved the court to dismiss the case for want of equity on the ground of a total failure of proof, and this motion being overruled, the defendant elected to stand upon his motion based upon the testimony presented, and accordingly, offered no evidence. This appeal followed, and the sole and only question presented to us for determination by this appeal is whether or not the evidence produced by plaintiff and her witnesses was sufficient in point of law to entitle her to the decree for divorce in this case. To a consideration of the evidence offered on behalf of the plaintiff we must now address ourselves.

Plaintiff, testifying as a witness in her own behalf, testified to the marriage, separation on or about January 1, 1941, birth of the child, and her lack of income. She further testified that in November 1940 she found two letters in the glove compartment of defendant’s automobile, which letters were signed in the name of a woman known to her, and were addressed to her husband as “Dearest Darling”; that she had a conversation with defendant about the letters and he said to her that it would be silly for anyone to think anything about these letters, that he knew the woman and that they had a place of business in Mt. Vernon, and he was a good friend of her husband, that the letters did not mean anything and she should not think anything about them. The contents of the first letter was to the effect that the writer had missed the defendant since he had gone away and that she would be in Mt. Vernon over the week end and would like for him to come there unless he had to go home. The second letter was to the effect that she had received his letter in reply to the writer’s first letter, and was glad to hear from him; that she had missed him so much; and that when she saw him over the week end she didn’t get to say anything to him because of the other people that were with him. Plaintiff testified that this, in substance, was the contents of the second letter. She testified she talked to her husband later about both letters and that he told her she shouldn’t think anything about the letters as he, the defendant, and the writer, were only friends.

Plaintiff further testified that on the day or night of the 24th of May, 1941, she saw her husband riding around town in Eldorado in a car with his brother and a girl, and that to attract her attention they would hit on the side of the car. She testified that she had never seen her husband with any other woman, except on this occasion when he was accompanied by his brother.

Plaintiff testified that after her marriage with defendant they lived in Eldorado from 1937 until October 1940, when her husband went to St. Louis on the job that he still has, and has had continuously from that date, until the time of the trial. It appears from the evidence that her husband was engaged in the business of trucking merchandise for hire, and that he had asked her to go to St. Louis and live with him, but that she told him she wouldn’t go because she knew he was living in St. Louis with someone else, and that she didn’t intend to put up with that. Plaintiff further testified she tried to persuade him to take a job that had been offered in Canton, Ohio, but that her husband preferred to stay with his job in St. Louis, and that she informed him he was thereby making a choice between her and someone else. On cross-examination of plaintiff she stated that she had gone to St. Louis shortly after her husband became employed there and came back home for the holidays; that her doctor would not permit her to go back, although the defendant had asked her several times to come to St. Louis and live with him; and that said requests had been both oral and by letter; and that on each and every occasion she always refused to go. Plaintiff further testified that every time she had a conversation with the defendant wherein she charged or complained to him about any alleged infidelity, or unfaithfulness, that he, on each and every occasion, denied such conduct on his part.

From the testimony of Kathryn E. Stinson, a witness called on behalf of the plaintiff, it appears that she had seen the defendant walking along the public square one evening with some woman whom she did not know and that on another occasion she had observed the defendant riding in an automobile with some other woman, and that he drove into the driveway of the Lion’s Club at Eldorado and turned around and came right back out onto the paved street.

Kenneth Cox, a witness called by plaintiff, testified that he saw the defendant out in front of a public dance hall just outside of Eldorado sometime in November 1940, at about 9 o’clock on a Monday morning; that while he was there he saw the defendant standing beside an automobile in which two women were seated, and while he couldn’t recite the conversation, yet he knew that one of the women asked the defendant for money. This witness’ testimony discloses that the defendant refused to- give her any money, and this witness does not disclose any knowledge on his part as to why this woman wanted the defendant to give her money.

It appears from the evidence of Melvin Driggers, called as a witness for the plaintiff, that the defendant had gone with Frieda Driggers before his marriage to the plaintiff, and that some time in the Spring or Summer of 1940, the defendant came to Melvin Driggers’ home and asked to see his daughter. This witness testified that he objected to that since the defendant was married, and on the cross-examination of this witness it appears that his daughter was not at home and that the defendant did not see her.

It appears from the testimony of Barbara G-ates that in May 1941, she met the defendant in St. Louis at a street carnival, and that he was in the company of a young woman, not the plaintiff, and that it was about 11 or 12 o’clock at night when she met them, and that there were two other men and the defendant, and this young woman, walking around the carnival grounds.

The plaintiff, in her brief, indicates that if the foregoing was all of the evidence, it would be a little weak perhaps, although she contends it points to adultery very strongly when a married man carries on in that manner, but great reliance is placed upon the evidence of the Elders family. From the testimony produced by Mrs. Zoa Elders it appears that she lived on the outskirts of Eldorado on a public road near the camp ground; that about a half mile due east of her home is a woods known as Mabrey Woods; that in August 1940, she saw the defendant drive past her house in an automobile; and that he was accompanied by a young lady unknown to this witness; that it was about the middle of the afternoon when she observed the defendant and the girl drive by her house, Billy Elders, a 14-year-old boy, who lived with his mother, testified that he had known the defendant for about three years, and that in June 1940, he saw the defendant over in the Mabrey Woods. He testified that he saw defendant driving a car, and there was another man with him and after their car was another car in which were two women, and that these cars were about 10 or 20 feet apart, and that about five minutes after he saw them he went down towards the Mabrey Woods and when he got down there he saw the defendant over at the other car with the two women. He further testified that the girls, who were young women, did nothing and that he did not know them; that he was in the cornfield about 100 yards from them; and that the defendant, after talking to the two girls over at their car, then went back and got in his own car and drove away. This witness testified on cross-examination that the defendant was in sight of him all of the time and that all he was doing was just talking to the girls. On redirect examination this witness testified defendant got into the car with the girls and that he could see defendant all the time and that all he observed defendant doing was just talking. J. L. Elders, a 17-year-old son of Zoa Elders, testified that he was with his brother at the time of the occurrence to which Billy had testified, and that it was about 3 o’clock on a Saturday afternoon in June or July 1940. His testimony is substantially the same as his brother Billy’s. This fairly summarizes the evidence produced on behalf of the plaintiff, the legal sufficiency of which to form the basis for the decree is challenged by this appeal.

Reviewing courts hesitate to reverse a case tried by a judge without a jury, as the presumption is that the trial judge considered only the competent evidence. However, where there is a lack of competent evidence to sustain the judgment or decree, reviewing courts will not hesitate to reverse the same (Decorators Supply Corp. v. Babka, 290 Ill. App. 298).

It has been held many times by the Supreme and Appellate Courts that where, from a consideration of the whole record, it is apparent that the evidence does not justify the decree, it is the duty of the reviewing court to reverse the decree (Sharkey v. Sisson, 310 Ill. 98).

In order to establish adultery by circumstantial evidence, the proofs must convince the mind affirmatively that actual adultery was committed, since nothing but the carnal act can lay the foundation for a divorce. A divorce on the ground of adultery should be granted only upon proof of the clearest and most convincing character (Blake v. Blake, 70 Ill. 618; Ovenu v. Ovenu, 201 Ill. App. 607).

A careful and candid consideration of the evidence produced in this ease brings us to the inescapable conclusion that the evidence produced was not sufficient to furnish an adequate legal basis for the decree for divorce on the ground of adultery. In this proceeding, as in all divorce proceedings, not alone are the plaintiff and defendant concerned, but society itself has a proper concern over the marriage relationship. From all of the books do we learn that in a certain sense there are three parties to every divorce proceeding, namely: The plaintiff, the defendant, and society as a whole. The dissolution of a marriage relationship is so grave and fraught with such vital concern to society as a whole, that it will not be lightly terminated. Only when the evidence, if circumstantial, impels to the inescapable conclusion that the charges assigned are true, will the court sever the marriage ties, and certainly it may be argued that it is even all the more strongly true where, as in this ease, the charge is a charge of adultery that carries with it some stigma upon the defendant, as well as the child born of the union.

For the reasons heretofore set forth in this opinion, this case is reversed and remanded to the circuit court of Saline county, with directions to dismiss the complaint for want of equity.

Reversed and remanded, with directions.


text:
    Frank Brenton et al., Appellants, v. Sloan’s United Storage and Van Company, Appellee.

      Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellants.
    Kramer, Campbell, Costello & Wiechert and Joseph J. Lemen, all of East St. Louis, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order of the circuit court of St. Clair county, granting a new trial in an action brought by the ten petitioners, Frank Brenton, W. M. Tyler, Mrs. Ben Myers, Clarence Stephens, Mrs. E. Davis, F. L. Warren, Logan Durnil, C. S. Gains and L. Skalovsky and Louise Lynn (hereinafter called plaintiffs) as against the respondent, Sloan’s United Storage and Van Company (hereinafter called defendant) for damages sustained by plaintiffs by reason of the failure of the defendant warehouse company to return to each of them certain furniture and household goods which was stored with the defendant. A petition for leave to appeal to this court has been granted heretofore.

The plaintiffs filed an action against the defendant, a licensed warehouse operator of a storage warehouse, to recover certain articles of furniture and household goods which, the facts disclosed at the trial show, were destroyed by fire. While no affirmative defense was pleaded in the answer of the defendant, such answer denied the general allegations of failure to perform its duty as a warehouseman, and the issue of negligence on the part of. the defendant was thereby raised.

The plaintiffs, in the respective cases, established the fact of the deposit with the defendant of furniture and household belongings, and the payment of storage charges, or an extension of credit. They also established that after the fire they demanded return of their belongings and that such request was denied. Each of the plaintiffs, after testifying to familiarity with the nature of the goods deposited, and to a knowledge of the prevailing prices of such goods through shopping with friends, window shopping, noticing newspaper advertisements and hearing radio advertisements, testified as to his or her opinion as to the actual damage to such goods. There was some dispute in the trial court and on this appeal as to whether or not the proof of damages would require expert testimony or other testimony as to the value thereof. This court has previously concluded that where personal property is of a usual and ordinary nature, such as household goods, the value thereof was a matter of common knowledge, and any person, including a housewife, may testify as to its value (Wiegert v. Davis Cleaning & Dyeing Co., 254 Ill. App. 63, 67; Mayer v. Miller, 213 Ill. App. 279, 281). Plaintiffs in this case, therefore, as the owners of the property, were competent witnesses to testify as to their actual value (Gross v. Saratoga European Hotel & Restaurant Co., 176 Ill. App. 160, 164; Ruud v. Bostrom, 227 Ill. App. 186).

Evidence on behalf of the defendant admitted the storage of the articles of personal property by plaintiffs and the loss of the articles. Defendant, by way of defense in the action, established the nature of the construction of the building, the operation of its business, the manner in which the goods were stored, the heating and lighting facilities, some evidence as to inspections, the fact of the fire and the lack of knowledge of defendant as to the origin of the fire. It was developed on cross-examination of some of defendant’s witnesses that many things could have caused the fire, and it was also shown that because of the fact that the building was constructed with a number of bins for storage of the personal articles, a fire, once underway, would be hard to put out. The evidence also disclosed that when the fire department arrived at the fire, the fire was’ already too far advanced to permit the fireman to do much with it. There was also evidence indicating that the wiring in the building had been in place for 32 years, and it was also disclosed that apparently no attempt was made by the defendant to inspect the household goods that were stored in the bins to ascertain probable fire hazards, or to segregate such as might constitute fire hazards.

The jury returned a verdict for each of the plaintiffs in separate sums, totaling $4,705 which, in view of the record, appears to be consistent with the testimony. The trial court, after overruling defendant’s motion for judgment notwithstanding the verdict, granted defendant’s motion for a new trial and set aside all of the verdicts. Counsel for plaintiffs at such ■ time requested the court, in accordance with the case of Pillow v. Long, 299 Ill. App. 542, 544, to state his reasons for granting a new trial, in writing, so that a hearing in the Appellate Court could be expedited. In complying with such request, the court assigned as reasons that (1) The plaintiffs had failed to sustain the necessary averments of their complaint and the elements of a cause of action, by a preponderance of evidence; (2) That the verdicts of the jury were against the manifest weight of the evidence; and (3) And other and further errors appearing in the trial and record, prejudicial to defendant.

It is true that an order granting a new trial should not he set aside by the reviewing court, unless it affirmatively appears that the trial court has clearly and palpably abused its discretion or proceeded upon some clear or manifest misapprehension of a supposed controlling rule of law (Couch v. Southern Ry. Co., 294 Ill. App. 490; Josate v. Mack, 302 Ill. App. 246).

Similarly, if the facts are such as to be substantially undisputed and will create a question for determination by the jury, under circumstances in which it cannot be said that a verdict, as rendered, could be contrary to the manifest weight of the evidence, an Appellate Court, under such circumstances, may reverse an order granting a new trial.

Under the law of this State a bailor makes out a prima facie case as against a bailee by showing that the goods which have been bailed have not been returned upon demand, and such a prima facie case is not overcome by a mere showing to the effect that the goods have been burned, or otherwise destroyed (Byalos v. Matheson, 328 Ill. 269; Clemenson v. Whitney, 238 Ill. App. 308, 313; Ill. Rev. Stat. 1941, ch. 114, par. 240-c [Jones Ill. Stats. Ann. 141.055]).

To discharge himself from liability under such circumstances a bailee must show that the loss occurred without his fault and whether he has met his burden is a question of fact for the jury to decide (Lederer v. Bailway Terminal & Warehouse Co., 346 Ill. 140; Byalos v. Matheson, supra; Clemenson v. Whitney, supra).

As was stated in the case of Heyman & Bros., Inc. v. Marshall Field & Co., 301 Ill. App. 340, at page 346: “In such case the bailee, before he is relieved from liability, must show that the loss, theft, or destruction by fire, was not the result of any negligence on his part.” Unless all reasonable minds would agree that the defendant has shown the degree of care required of such bailment, the determination of the issue of due care becomes a question for the jury. Ostensibly, this rule is an outgrowth of a recognition of the practical difficulty which a bailor would have in trying a bailment case, and places the burden on the defendant to explain the circumstances surrounding the loss of the goods. Plaintiffs, in such cases, usually are not in a position to rebut defendant’s evidence and it is the omissions and weaknesses of the defendant’s case that become vital for consideration of the jury in determining the question of due care.

In the instant case, as we have indicated in our statement of facts, there may have been a number of causes of the fire which could have been attributable to negligence on part of the defendant arising from the defendant’s equipment or the nature of the storage of plaintiffs’ articles. The facts essentially were not disputed and it was the inferences or conclusions to be drawn from such facts, which were determinative of the issue. Under such circumstances, to set aside the verdict of the jury finding against the defendant, as being contrary to the manifest weight of the evidence, cannot be sustained, and seems to us to be a usurpation of the function of the jury.

Some contention is made by the defendant that there was error in the giving of the one instruction given on behalf of the plaintiffs, which stated in substance that plaintiffs would be entitled to recover, unless defendant has shown by a preponderance of the evidence that it exercised ordinary care and diligence to prevent destruction and loss to the property. Such instruction was proper and is consistent with the law (Traut v. Horace L. Winslow Co., 201 Ill. App. 83; Schaefer v. Washington Safety Deposit Co., 281 Ill. 43).

A refusal of certain instructions offered on behalf of the defendant was likewise proper, in view of the fact that two of the refused instructions sought to advise the jury that the issue was “negligence which caused the fire,” and that the burden was on the plaintiff to make such showing. In implying that the burden was on the plaintiff to establish such fact, such instructions stated erroneous propositions of law and, likewise, erroneously delineated the issue of negligence as to the defendant, which, as a matter of law, related to negligence in failing to properly store and keep the goods of plaintiffs, rather than negligence in causing the fire.

Another instruction which was tendered sought to tell the ¡jury that the failure to equip the building with water sprinklers or glass bulb apparatus, would not be any showing of negligence on part of the defendant. Such instruction seeks to invade the province of the jury. It was a question for the jury to decide whether the failure to equip the building with such apparatus would constitute negligence on part of the defendant (Minnis v. Friend, 360 Ill. 328, 338).

We must, therefore, conclude that the order of the circuit court of St. Clair county granting the new trial was erroneous. This cause will, therefore, be reversed and remanded to the circuit.court of St. Clair county, with directions that such order granting a new trial be vacated and set aside, and the motion for new trial denied, and judgment be entered therein on the jury’s verdicts.

Reversed and remanded, with directions.


author:
Mr. Justice Culbertson
      Mr. Justice Dady

text:
    Georgia Frances Kent, Appellant, v. Kenneth W. Kent, Appellee.

      Dady, J., dissenting.
    Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.
    Karns & Bandy, of East St. Louis, for appellant.
    No appearance for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal by defendant appellant, Georgia Frances Kent (hereinafter called defendant), from a decree of the city court of East St. Louis, Illinois, awarding custody of a child to the father, who is the plaintiff appellee in this proceeding (hereinafter called plaintiff).

The record in this case shows that the plaintiff and defendant were divorced in the city court of East St. Louis, Illinois, on the 9th day of November, 1935, the decree being given to Kenneth W. Kent on the grounds of desertion, and by the terms of said decree the sole care, custody and education of their minor child, William Kenneth Kent, was awarded to Amy Dietzel, mother of the defendant herein, and there was included in said decree, a provision providing that the plaintiff should pay the sum of $2.50 per week for the support of said minor child until said child reached its majority, or until the further order of the court.

On the 27th day of September, 1941, the plaintiff herein filed a petition in the city court of East St. Louis, Illinois, to modify the decree entered on November 9, 1935 and, among other things set forth in said petition, the plaintiff herein alleged that he had paid the support money provided for in said decree, each week, with the exception of a short period when he was unemployed, and that while he was unemployed he reported said fact to the court. Plaintiff further alleged that since said divorce and during the time that the custody of said child was awarded to Amy Dietzel, said child was for a long period of time placed in an orphanage, and during the past two years, had been in the custody of Arthur and Euth Kremmel, residents of St. Clair county, who are strangers to this suit and who are of no kin to the said minor child, and that said custody of the child was given to the said Arthur and Euth Kremmel by the said Amy Dietzel.

Plaintiff further alleged that since said decree of divorce he has remarried and has established a home, and his family now consists of himself, his wife, and a child, and that it works a great hardship upon him to maintain the said William Kenneth Kent in the home of strangers; that he and his present wife are willing, ready, and anxious to have the custody of the said minor child return to plaintiff where he can be brought up by his natural parent and given the advantage of a normal home life, and that it is fit and proper and for the best interests of said child that the custody of said child be awarded to the plaintiff herein. Plaintiff prayed the court to enter an order amending the decree and awarding the sole care, custody and education of the minor child, William Kenneth Kent/ to the plaintiff herein.

A hearing on this petition to modify the decree was had on the 10th day of October, 1941, at that time it was stipulated that notice was given to the defendant, Georgia Frances Kent, of the hearing on said motion, and she was present in open court at the time of said hearing, and represented by counsel. There was also presént in open court on the hearing of this petition, in addition to the plaintiff and defendant herein, the present wife of the plaintiff herein, Mrs. Arthur Krem-mel, and Mrs. Amy Dietzel.

From the evidence of the plaintiff herein, it appears that William Kenneth Kent is now seven years of age. Plaintiff testified that a short time after the decree was entered in this case, the said William Kenneth Kent was placed in an orphanage and remained there for about two years, when the defendant herein took said child from the orphanage and kept him for a time, that the said child is now living with Mr. and Mrs. Arthur Kremmel, and has been with them for about two years. Plaintiff testified that he never at any time gave his permission that the custody of the child be given to Mr. and Mrs. Kremmel, but that during all the time while he was employed and while the child was residing with the Kremmels he made the payments to the clerk of the court, as was provided for for the support of said child. Plaintiff testified that he has remarried on February 6, 1937, and that he now has a 17-months-old daughter by his second wife, and that they reside in a two-room house. Plaintiff testified that he was able and anxious to have his son reside with him. On cross-examination, plaintiff stated that around Easter time (before the filing of this petition), his second wife thought it would be possible for him to go to see his son and he did so and brought the boy to his home over the week end, and when it was time to return him to the Kremmel home, the boy cried and wanted to stay with him and asked his stepmother “if she wouldn’t ask if there was some way if he couldn’t come home.” Plaintiff testified concerning his affection for the boy, and gave expression to his desire to have the child come and make his home with him. It appears from the evidence that plaintiff is employed at the National Stock Yards and makes $29 a week. Plaintiff when asked the following question: “ Q. Can you now tell the Court what reason — good reason— there could be for taking this boy from the good home you admit he is living in, to your two-room home, as you already have one child to support; can you tell the Court any reason why that should be done1?” made the following answer: “A. Sure. Because he is my child and I love Mm.”

Buth Kent, the present wife of the plaintiff herein, when called as a witness, testified to her affection for this stepson and stated that she was willing that this child of her husband come back into her home, and stated that she would give the child the same care and love and affection as if it were her own child.

Mrs. Arthur Kremmel, called as a witness on behalf of the defendant, testified that the Kent boy resided at her home and that he had been there for about two and a half years; and that she had become very much attached to Mm. From her testimony it appears the boy is attending school, and also is receiving religious education. She testified that Mrs. Dietzel had arranged for her to take the child and that she had consulted an attorney about instituting a suit to adopt this child, and that it was her opinion that if the court left the child in the custody of Mrs. Dietzel, she intended to turn it over to her, and permit her to adopt it. It further appears from the evidence that Mrs. Kremmel not only had the consent of Mrs. Dietzel to adopt the child, but that she also had the consent of the mother of the child.

Mrs. Amy Dietzel, the maternal grandmother of the child testified concerning the home of Buth and Arthur Kremmel, and from her evidence, and all the evidence in this record, it appears that the Kremmels are people of good standing and maintain a good home. This witness gave expression to the opinion that the best interests of the boy would not be served by turning, him over to Ms father.

Georgia Frances Kent, the mother of the boy, testified among other things, that it was her belief that it would not be to the best interests of the child to turn him over to Ms father, and that she felt it would be for the child’s best interests for him to remain with the Kremmels. This witness, while expressing some desire (in her testimony), for the custody of the child, stated that if the Kremmels wanted to adopt the child, she was willing that they should do so.

On the 24th day of October, 1941, a modified decree was filed in this cause, which said modified decree is as follows:

“State oe Illinois} County oe St. Clair) s
In the City Court of East St. Louis, Illinois
Kenneth Kent
Plaintiff
—vs—
Georgia Frances Kent Defendant
In Chancery No. 4473

Modified Decree

This matter coming on to be heard on the petition of Kenneth Kent, plaintiff, for modification of decree, and it appearing to the Court that all parties are in Court with respective counsel, Wendell J. Phillips, for Kenneth Kent, plaintiff and petitioner herein, and Harold J. Bandy, for Georgia Frances Kent, defendant, and Amy Dietzel, respondents herein; and the Court having heard the testimony of witnesses and arguments of counsel, and having jurisdiction and being fully advised;

It is therefore ordered, adjudged and decreed that the decree for divorce heretofore entered on, to-wit; November 9, A.D. 1935, with respect to the care, custody and education of William Kenneth Kent, minor child be modified, and that the sole care, custody, and education of the said minor child formerly awarded to Amy Diet-zel, mother of Georgia Frances Kent, defendant, in said decree, be and is hereby awarded to Kenneth Kent, father of said minor child.

It is further ordered, adjudged and decreed that Kenneth Kent be and he is hereby relieved from making fur-tier payments to Amy Dietzel, grandmother of said minor child for the care, custody and education of said child, said payments to stop on the 10th day of October, 1941.

It is further ordered, adjudged and decreed that the child be delivered by the respondents or their agent to the petitioner herein, or his agent, within five (5) days from the filing of this decree and until further order of this Court.

It is further ordered, adjudged and decreed that Georgia Frances Kent, mother of said minor child, and Amy Dietzel, grandmother of said minor child, may have the right to visit the said minor child at any reasonable time.

The foregoing supplemental decree approved by me this 24th day of October, 1941.

Kalph Cook
Judge
Filed
City Court
East St. Louis, Ill.
Oct. 24,1941
J. T. Desmond, Clerk.”

In determining the question of the custody of children where the parents have been divorced, it is uniformly held that the primary question for consideration is what is for the best interests of the child (People v. Schaedel, 340 Ill. 560, 563; Mahon v. People ex rel. Robertson, 218 Ill. 171; Umlauf v. Umlauf, 128 Ill. 378; Hewitt v. Long, 76 Ill. 399).

It is urged on this appeal that the court erred in awarding the custody of this boy to his father for the reason that the parties with whom the boy was living could do more for the boy in a financial way than his father could. We have never known of any court adopting this line of reasoning and we decline to do so.

It is further urged that this father should not have the custody of his son for the reason that his interest in the boy is of recent origin and that the record does not disclose fatherly conduct toward this boy by the father on all occasions. We believe that the present manifestation of interest in this boy on the part of his father should be encouraged and not discouraged. We prefer to determine this father’s right to the custody of his son by his present conduct and not by his past conduct. We decline to say the father of this boy has been guilty of lack of interest or of conduct so unbecoming of a father as to forfeit his right to his son’s custody.

The trial court heard the evidence in connection with the petition to modify this decree, and a wide latitude is properly given to a court to exercise its sound discretion in matters of this character, and we would not be at liberty to disturb the finding of the trial court, unless we were able to say that proper and sufficient evidence had not been produced to warrant the modifying of the decree in this cause. This case was tried before the court, without a jury, and as a court of review, we will not substitute our findings of fact for the findings of fact of the trial court, unless the judgment is clearly against the manifest weight of the evidence (Chamblin v. New York Life Ins. Co., 292 Ill. App. 532); and as a reviewing court, we will accept the findings of the chancellor upon questions of fact, based upon the statements of witnesses whom he saw and heard testify, unless such findings are clearly and palpably erroneous (Kinnah v. Kinnah, 184 Ill. 284; Mousette v. Monarch Life Ins. Co., 309 Ill. App. 224).

We find that the action of the court in modifying the decree, is not against the manifest weight of the evidence, and that his findings are not clearly and palpably erroneous, but that such action, in modifying the decree, is in harmony with the weight of the evidence' and not in any way erroneous. The action of the trial court in modifying the decree, being correct and proper, is hereby affirmed.

Affirmed.

Mr. Justice Dady

dissents: I disagree with the majority opinion. In my opinion the judgment of the trial court is palpably and manifestly against the weight of the evidence, and should be reversed.

Plaintiff, Kenneth Kent, hereinafter referred to as “Kent,” and defendant G-eorgia Kent were married November 17,1933. Their only child, William, was born July 31,1934.

On November 9, 1935, Kent obtained a decree of divorce from G-eorgia Kent on the ground of desertion, which decree awarded the custody of the boy to the maternal grandmother, Amy Dietzel. The decree ordered Kent to pay Amy Dietzel $2.50 a week for the support of the boy.

On September 27,1941, Kent filed this petition asking that he be given the custody of the boy, and on a hearing the trial court gave him such custody. G-eorgia Kent, the mother of the boy, has perfected this appeal from such order. Kent has not filed any brief or otherr wise appeared to contest this appeal.

At the time of the filing of the complaint for divorce the boy was in an orphanage. After the divorce decree was entered he continued to remain in an orphanage for about one year, and wa§ then taken by his maternal grandmother to her home, where he remained for about two years. The maternal grandmother then placed him in the home of Mr. and Mrs. Arthur Kremmel, who are not related to any of the parties, where he continued to remain about two and one-half years, and was living at the time of the hearing in the trial court on the petition for custody.

It is important to consider what if any interest and affection toward the boy has been exhibited by his mother and by his father.

The mother is a W. P. A. worker. Mrs. Kremmel testified “The boy’s mother sees him two or three times a week, whenever she is not working. She works every day. ’ ’ The mother testified, ‘ ‘ I have not had the custody directly. I do want the custody because he is mine. I have consented to Mrs. Kremmel adopting the boy only to block this case. I think I am earning enough to take care of him and would be glad to take him to my mother’s or my home. ’ ’

Evidently at the time of the divorce proceeding, although the boy was in an orphanage, Kent did not desire the legal custody of the boy, or was unable to pay for his care in the orphanage or otherwise, for in his complaint for divorce he alleged that the maternal grandmother was a proper person to have such custody, and requested that she be given such custody, and the decree of divorce entered on his motion gave her such custody. As far as the record shows he took no steps, legal or otherwise, to get the custody until the filing of this petition on September 27,1941. On the hearing of such petition he testified “I stayed away from him for five years. I saw him four or five times in five years,” although during such period the boy was only “about sixteen miles away. ’ ’ His only explanation for staying away was, “I stayed away to keep him from being dissatisfied. ’ ’ Before about Easter Sunday, in 1941, he did not visit the boy while the boy was at the Kremmel home, but after such Easter Sunday he visited the boy about a dozen times and took the boy twice to the Kent home with the permission of Mrs. Kremmel. Aside from the formal allegation in his petition that he and his present wife are “willing and anxious to have the custody of said child, ’ ’ the only specific reason alleged in such petition for desiring such custody is,1 ‘ that it works a great hardship on him to maintain William Kenneth Kent in the home of strangers. ’ ’ Although on the present hearing he testified, “I love this boy, ’ ’ he also testified, “It is true that I have made the statement many times that he is not my child. I still love him, but I talk about him that way. ” He was then asked, ‘ Were you loving him when you were telling people he was not your child?” His reply, and only explanation, was, “Yes, sir, it was one of my ways of keeping him from being kidnapped. ” No evidence of any threatened kidnapping was offered.

Another pertinent inquiry is as to the present ability of Kent to properly care for the boy. Although he was required to pay only $2.50 per week for such care, he is admittedly behind in his payments. His explanation is that for a time he was out of employment. The record does not show how much he is in arrears, but does show that he gave toward such payments a $5 check dated September 7,1941, which check was returned by the bank unpaid with the notation ‘ ‘ Account closed. ’ ’ It will be noted that this check was dated only twenty days before the present petition was filed. Concerning this check, he was asked, “This check with which you made a payment isn’t any good, is it?”, and he replied “That I don’t know. It says ‘account closed.’ When my funds got low I closed my account at the bank to keep from overdrawing and this check was held out until I closed my account. . . . When I closed my account I thought I had $20.00 in the bank. I usually carried about $25.00 in the bank. ... I am willing to take up that check at my first opportunity. . . . My explanation is that Mrs. Dietzel waited too long to put that check in the bank. I closed my account. The bank notified me a check was overdrawn and asked me to come in and make it up. It was not this check. ... So I went and made it up and told them to close my account.”

Kent testified that he now earns $29 a week. He remarried on February 6, 1937, and by such remarriage has a daughter aged seventeen months at the time of the hearing. On the hearing he testified that he and his present wife live “in two rooms.” She testified “My husband and I live in two rooms. One is the kitchen. We eat in the kitchen. The other is a bedroom. We would have room for the other little fellow in our bedroom. He would sleep in the same bedroom with my husband and me and the little girl. He is going on to eight years of age.”

At the time of the hearing the boy had been living in the home of Mr. and Mrs. Kremmel for about two and one-half years. The Kremmels have no child. They have been married eight years, during all of which time they have lived in the same home, which contains three rooms. Mr. Kremmel earns between $54 and $57 every two weeks. They send the boy to grade school. Mrs. Kremmel testified “I personally take him to Sunday School every Sunday. ... I have become very attached to him. ’ ’ She further testified that she had consulted an attorney about adopting the child. Kent testified: “I have visited the boy since he has been at the Kremmel home. It is a good home. They are good church people. They can provide him with a good home. I know they are deeply attached to him.” Mrs. Krem-mel further testified that it cost her and her husband about $5 per week to keep the boy; that payments of $2.50 per week have been made to her either by the mother or maternal grandmother, but “I would continue to keep him whether I received that $2.50 per week or not.”

The boy was not called as a witness, probably because of his immaturity. Kent testified that on one occasion, the date not being given, when he had the boy at his home over the week end, when the boy was leaving he cried and asked Kent’s present wife if she wouldn’t ask Kent if there wasn’t some way, if he couldn’t come home. Aside from the competency of this testimony, we all know how easily and frequently a child’s mind is changed by slight favors.

Aside from the comments which I have made, the foregoing is, I believe, a fair statement of all the material evidence.

The primary question for consideration in all cases involving the custody of children is, what is for the best interest of the child? (People v. Schaedel, 340 Ill. 560; Mahon v. People ex rel. Robertson, 218 Ill. 171; Umlauf v. Umlauf, 128 Ill. 378; Hewitt v. Long, 76 Ill. 399.) While it is recognized that a parent is entitled to a preferential right to the custody of his child, this right will be made to yield if the welfare of the child demands it. (People v. Weeks, 228 Ill. App. 262; People v. Nelson, 235 Ill. App. 410.) The rule to be applied in such cases is thus stated by the court in People v. Porter, 23 Ill. App. 196, “In controversies of this character, three matters are to be regarded; the rights of the parent, the rights and interests of the person or persons to-whom the care and custody of the infant child has been given by the parent, and the welfare of the child; and of these three the last mentioned is the matter of primary and paramount importance. The father is prima facie entitled to the custody of his minor child, but he may forfeit the right by misconduct or voluntarily relinquish it. If he, by agreement, surrenders the custody of his child to another, such surrender is not absolute'and irrevocable ; but, if a contention arises in the courts with reference to such relinquishment, much will depend upon the characters and habits of the contending parties, the fact whether the reclamation is sought within a short time or after the lapse of years, and the circumstances of the particular case. All other considerations, however, will be subordinated to the interest and welfare of the child. ’ ’

It is my opinion that the evidence manifestly shows that the interests and welfare of this 8-year-old boy will not be best served by removing him from the admittedly good home of the Kremmels, who are deeply attached to him, and placing him in the home of his father, where it is proposed by the present wife of the father that such boy occupy the one and only bedroom with his father and such wife and their little girl. Although Kent testified that he loves the boy, yet in my opinion his statement that he has many times stated that the boy was not his child, but “I talk about him that way,’’ shows either such a lack of affection or such a lack of character as makes Kent unfit to have the custody of such child. As was said by Justice McAlister in Hewitt v. Long, 76 Ill. 399, “The theory of natural affection which tenderly clings to a child whom a parent has never scarcely seen, and upon whom he has bestowed no care, may do for works of the imagination, but will not, in the absence of proof, be presumed in a judicial investigation.”

I feel that the majority opinion attaches too much importance to the rights of Kent merely as father, and overlooks the more important question of the best interests of the child.


text:
    P. F. Hein, Appellee, v. Shell Oil Company, Inc., Appellant.
    Heard in this court at the May term, 1942.
    Opinion filed June 27, 1942.

      John C. Quailty, of Centralia, and Craig Van Meter and Fred H. Kelly, both of Mattoon, for appellant.
    P. J. Kolb and Walter F. Kolb, both of Mt. Carmel, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Wabash county denying a motion to dissolve a temporary injunction and to dismiss the complaint, pursuant to which such injunction was issued, in favor of appellee, P. F. Hein (hereinafter called plaintiff), as against appellant, Shell Oil Company (hereinafter called defendant). *

The complaint filed by the plaintiff alleged that plaintiff was the owner of certain real estate, and that the defendant was the owner of an oil and gas lease (which was set forth in the complaint), and that defendant was operating the oil and gas lease and producing oil from a certain oil well. It was alleged that the oil well, likewise, produced casinghead gas and that the plaintiff had connected a gas line which piped the casinghead gas from such oil well into his residence in which the gas was used for heating purposes. A temporary injunction was issued, without notice, enjoining defendant from disconnecting such gas line which the plaintiff had connected to defendant’s oil well upon the premises leased by plaintiff to the defendant. The defendant thereafter filed a motion to dismiss the complaint and also a motion to dissolve the temporary injunction. Upon hearing, the court below entered an order overruling the motion to dissolve the temporary injunction, and defendant has appealed from such order.

It is alleged in the complaint that the defendant is operating five oil wells upon plaintiff’s lands, pursuant to the terms of the oil and gas lease, and that one of the oil wells is situated behind the dwelling house of plaintiff, and that the gas from such oil well has been heretofore permitted to waste into the atmosphere by the defendant in the operation of its well. The complaint alleges that the pipe connection was made on November 5, 1941, but was disconnected by defendant on November 7,1941, and that on November 8,1941, it was reconnected by plaintiff (he alleges, with permission of defendant’s agent) and that plaintiff has continued to use the gas for heating purposes since that date. It is also alleged that on November 12, 1941, defendant notified plaintiff that unless he disconnected his connection from the pipe line on or before 3:00 p.m. on November 13, 1941, that defendant would cut and destroy the gas line.

The oil and gas lease, under which defendant is operating oil wells, contains three royalty provisions, in the following terms:

“1st. To deliver to the credit of lessor, free of cost into tank reservoirs or into pipe line to which lessee may connect wells on said land, the equal one-eighth (Ys) part of all oil produced and saved from the leased premises.
“2nd. To pay lessor one-eighth (Ys) of the gross proceeds each year, payable quarterly, for the gas from each well where gas only is found, while the same is being used off the premises, and if used in the manufacture of gasoline, a royalty of one-eighth (%), payable monthly at the prevailing market rate for gas; and lessor to have gas free of cost from any such well for all stoves and all inside lights in the principal dwelling on said land during’ the same time by making lessor’s own connections with the well at lessor’s own risk and expense.
“3rd. To pay lessor for gas produced from any oil well and used off the premises or in the manufacture of gasoline or any other product a royalty of one-eighth (Ys) of the proceeds, payable monthly at the prevailing market rate at the mouth of the well. ’ ’

The plaintiff’s complaint, as amended, alleged that the volume of gas wasted from the well to which plaintiff had made his connection, was in excess of 35,000 cubic feet per day, exclusive of the small amount which was used by plaintiff in heating, and that the wasted gas is emitted from a discharge pipe or flare attached to the pipe and maintained by the defendants. Plaintiff contends (by allegations in the complaint) that he is entitled to use such gas under (1) the implied terms in the lease, or (2) in the alternative, irrespective of the terms in the lease, on the basis of custom and usage in the area. Plaintiff also contends, very vigorously in his brief in this court, that he is entitled to take the gas in the manner indicated on the theory that in any event the defendant was about to waste it.

Defendant in the motions to dismiss the complaint and to dissolve the temporary injunction, in addition to the contention that there is no right of action set forth and that plaintiff is not entitled to the injunc-tive relief under the facts as set forth in the complaint, also insists that the oil and gas lease, on its face, shows that plaintiff has no right to use the gas from an oil well and that such use is in violation of the terms of the lease.

It is of primary importance in determining the question before this court, to analyze and look to the provisions of the lease between the parties. A contract between parties dealing in oil and gas is subject to the same rules of interpretation as any other contract and there is no relation of special trust or confidence between the lessor and lessee in such lease, any more than in any other (O’Donnell v. Snowden & McSweeney Co., 318 Ill. 374, 378). A court has no right, by construction, to establish a contract different from that expressed in the written agreement (Decatur Lumber & Manufacturing Co. v. Crail, 350 Ill. 319, 323; Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, 105).

As stated by the court in the case of Poe v. Ulrey, 233 Ill. 56, at pages 63, 64, 65 and 66,

“So far as the charge that the contract was harsh and unjust is concerned, it may be said that the parties were competent to contract with each other and neither side can be relieved from their agreements on the ground that they did not use good business judgment in entering into the contract. . . . Their agreement shall be respected and enforced by the Courts, and .... Neither shall be relieved from the obligation of his contract, except upon some certain ground deemed valid by the law. . . . Counsel for Appellants insist that there was an implied agreement that the lessee would drill wells to reasonably develop the farm for production of oil and gas, and that the lease could be cancelled by the Court and the rights under it forfeited for failure to do so, and that the lease might be forfeited for failure to drill the well, although compensation was agreed upon. The argument would have greater force if the lease had not contained a provision that it could be forfeited for a failure to complete a test well on the block of leases, before the 1st day of May, 1905. That agreement would imply an exclusion of other grounds of forfeiture, and the agreement for compensation effectually excludes a forfeiture not stipulated for.”

In proceeding with other construction of the lease in the instant case, it is obvious that the paragraph of the lease marked “1st” and set forth hereinabove, relates to the lessor’s royalty in oil produced and saved. The second paragraph clearly relates only to gas from each well where gas only is found. In this connection it has been determined that there is a distinction in law between gas produced from a gas well and casinghead gas which flows from oil wells and comes between the casing and the tubing (Humble Oil & Refining Co. v. Poe (Tex. Com. App.), 29 S. W. (2d) 1019, 1020), and the court, in Weaver v. Graham, 109 Kan. 450, 199 Pac. 924, 925, points out that all clauses of oil and gas leases are to be read together and if the fair meaning of all the clauses is that the right to the use of gas for domestic purposes is to be limited to gas produced from gas wells, even though it is not expressly stated, that interpretation should be adhered to by the courts. In the instant case the provision is clear and unmistakably expressed as to gas from gas wells.

The third paragraph of the oil and gas lease in the instant case referred to in this opinion, is clearly designed to provide for the casinghead gas from any oil well. The provision is simply that the lessor is to be paid for gas produced from such oil well, which may be used off the premises, or in the manufacture of gasoline, or any other product. The only gas which lessor is to have free of cost, by the terms of the lease, for domestic purposes is gas from wells which produce gas only, as specified in the second clause of the lease. It is conceded by plaintiff that the casinghead gas (which is being tapped by plaintiff in the line of defendant) upon its removal, may well become lessee’s property, to be utilized by lessee in any proper manner (although compensation is due lessor, in cash, upon disposition of such gas), but it is contended by plaintiff that lessee does not have the right to waste such gas, and that under the authority of the case of Brown v. Spilman, 155 U. S. 665, the plaintiff had the right to take the gas which the defendant was planning to waste as herein stated.

The plaintiff makes reference to the case of Caldwell-Guadalupe Pick-Up Stations v. Gregg (Tex. Civ. App.), 276 S. W. 342, where a party was permitted to go down a depression running from the leased premises and construct pits on adjoining premises for the collection of oil which ran off lands in that vicinity. Such pits were not constructed on the leased premises, but on adjoining premises and did not in any way interfere with the operations of the leased premises. The conclusion of that court was modified in Gregg v. Caldwell-Guadalupe Pick-Up Stations (Tex. Com. App.), 286 S. W. 1083, wherein it was determined that a lessee in an oil and gas lease has a right to erect structures necessary to produce and save oil, even if it would prevent lessor and his assignees from saving abandoned oil. It has been determined in this connection that a lessor under such lease cannot interfere with the rights of the lessee and with his operations upon the leased premises, and the law implies a covenant of quiet enjoyment of leased premises (Wade v. Halligan, 16 Ill. 507, 511; Hayner v. Smith, 63 Ill. 430, 432; Field v. Herrick, 10 Ill. App. 591, 593; Giller v. Hollyfield, 176 Ark. 861, 4 S. W. (2d) 526).

In the case before us plaintiff has gone upon the leased premises and actually connected the pipe, through which the casinghead gas was carried into the dwelling, on the casing or the pipe running into the oil well and from there plaintiff taps such gas into his house. At the place where the connection was made the gas was still in the possession of the lessee and was not abandoned property. In addition to an intention to abandon, for property to become abandoned property, there must be an actual relinquishment (O’Connor v. Maryland Motor Car Ins. Co., 287 Ill. 204, 208; Brink’s Chicago City Express Co. v. Hunter, 156 Ill. App. 537).

We have reviewed the matters herein set forth primarily for the purpose of attempting to clarify the nature of the gas which plaintiff seeks to use for domestic purposes, and the method by which such gas is taken, considered in the light of the lease between the parties.

It seems to us, however, that a determination of the basic question of whether or not injunctive relief should be granted in the instant case may likewise be disposed of by consideration of the basic principle that an injunction should not be allowed to enforce the terms of a contract where such contract is not definite or certain (Cleveland v. Martin, 218 Ill. 73, 89; Streator Independent Telephone & Telegraph Co. v. Interstate Independ ent Telephone & Telegraph Co., 142 Ill. App. 183, 193). There is no contention that plaintiff has any specific right based on the contract, and the contentions which are referred to in this opinion, based on implication, or the further contention that the gas is being abandoned, certainly do not, under the facts, create a case for injunctive relief. Even if the plaintiff had the right to require defendant to utilize the casinghead gas in question, there would be no right to the exercise of self-help such as was undertaken by the lessor in the instant case. As stated in Summers Oil & Gas, page 403, sec. 432,

‘ ‘ On sound legal theory there seems to be no place for the doctrine of self-help as a remedy for breach of the lessee’s express and implied duties to test and develop the land and protect it from drainage, for by the lease the lessee acquires privileges to drill wells on the land and market the product and rights that all others, including the lessor, shall not do so. It is true that the lessee has duties to exercise these privileges and that the lessor has rights that he exercise them, but a failure to do so does not change the legal relations created by the lease. Any drilling by the lessor upon the demised lands is a violation of the rights of the lessee.”

Under the terms of the lease defendant had the exclusive right to develop the premises and produce oil and gas from them. The lessor had no right to use the gas, unless his rights to the use of gas came within the express terms of the lease (Mid-South Oil Co. v. Cochran, 238 Ky. 737, 38 S. W. (2d) 687). As we have pointed out in this opinion, the only provision for the use of gas for such purposes is contained in the reference to gas produced from wells where gas only is found.

We must, therefore, conclude that the allegations of the complaint, as amended, fail to state any cause of action, or to show that plaintiff is entitled to the injunctive relief prayed for in this cause. The motion to dissolve the temporary injunction and the motion to dismiss the complaint should, therefore, have been allowed. This cause will, therefore, be reversed and remanded to the circuit court of Wabash county, with directions to proceed with this action in accordance with the views herein expressed.

Reversed and remanded, with directions.


author: Presiding Justice Stone.

text:
    Robert W. Edmiston, Administrator of Estate of Ronald Wayne Edmiston, Deceased, Appellant, v. Robert Hampton, Appellee.
    Heard in this court at May term, 1942;
    opinion filed June 27, 1942.
    Robert W. Tunnell and Henry B. Baton, for appellant; Kramer, Campbell, Costello & Wiechert, for appellee.
   Opinion by

Presiding Justice Stone.

‘‘Not to be published in full.”


author: Justice Dady.

text:
    George Kirchner, Appellee, v. Boris and Dave Golden-hersh, Inc., et al., Appellants.

      Heard in this court at May term, 1942;
    opinion filed June 27, 1942.
    Leonard S. Hopkins and Joseph H. Goldenhersh, for appellants; Geo. H. Muelder, for appellee; John B. Harris, of counsel.
   Opinion by

Justice Dady.

“Not to be published in full.


text:
    Gus Grossmann, Appellee, v. Albert R. Diesel, Appellant.
    Heard in this court at May term, 1942;
    opinion filed June 27, 1942.
    Johnson & Johnson, for appellant; Walter G. Grossmann, for appellee.

       See Callaghan’s Illinois Digest, same topic and section number.

   Opinion by

Justice Dady.

“Not to be published in full.”