Stahl v. Van Vleck. the property of defendant, Van Vleck, on the 30th day of March, A. D. 1887. "That no operations were commenced by anyone, under said lease upon the lands of plaintiff, until about two weeks previous to the commencement of this action, and no rent was paid thereon. "That at the date last aforesaid the defendant, through one Graham, his agent, requested the plaintiff to designate the acre of land upon which he desired to have a well located. "That plaintiff thereupon designated a location for said well upon the southwest quarter (1) of the northeast one-fourth (4) of section 2, mentioned in petition. "That pursuant to such designation by the plaintiff and prior to the commencement of this action, defendant in good faith and with the intent to drill for oil under said lease, commenced placing material at the point so designated for the purpose of drilling. "That soon afterwards the plaintiff notified the defendant's agent that he had changed his mind, and that if any of said land was to be operated for gas and oil he desired to have the operations begun and carried on upon the tract of forty acres described as the northeast quarter of the southeast quarter of section two (2), town three (3) north, range (12) twelve east, in Wood county, Ohio. "That soon after receiving said notice the agent of the defendant drew other loads of derrick lumber and deposited it on the forty-acre tract so as aforesaid, first designated by the plaintiff, and was about coming on the same land with another load when the plaintiff informed him that if the defendantinsisted that his said lease gave him the right to operate the whole farm, which contained 120 Stahl . Van Vleck. acres of land, in case he was successful in finding gas or oil on the premises, that he would not permit him to commence operations upon said land at all, but would enjoin him. "To this the agent of the defendant answered that he did not know how much land the defendant claimed a right to operate, but would write to the defendant and let the plaintiff know, and then deposited another load of lumber prepared for the purpose and intended to be used in the construction of a derrick on the land last mentioned and first designated by the plaintiff. "The defendant at that time claimed a right under his said lease to operate the whole farm of one hundred and twenty acres, in case he found gas or oil upon any one acre of land mentioned in the lease and designated by the plaintiff, and supposed that this right was vested in him by the terms of his lease. "No other work or operation had been commenced or done on said land up to the date of the commencement of this action, and nothing has been done since. "Upon the facts so found the court find the equity of this case to be with the defendant, George H. Van Vleck, as to the forty-acre tract, described as the southwest quarter of the northeast quarter of section two (2), town three (3) north, range twelve (12) east, in Wood county, Ohio, and with the plaintiff as to the eighty acres, constituting the balance of the tract or farm described in the petition, and that each is entitled to have his title quieted accordingly. "It is thereupon ordered, adjudged and decreed by the court that the defendant, George H. Van Vleck, have and hold the right to enter upon and Stahl v. Van Vleck. operate for gas and oil upon the forty-acre tract described as the southwest quarter of the northeast quarter of section two (2), town three (3) north, of range twelve (12) east, in Wood county, Ohio, in all respects as granted and conferred by the contract or oil lease set forth in defendant's answer herein, and as claimed in said answer, free from all interference of plaintiff herein; and that as to the balance of the tract described in plaintiff's petition herein, the title of plaintiff thereto is quieted, and defendant is forever enjoined from asserting any rights or claims thereon by virtue of said oil lease or otherwise. "And it is further ordered that each party pay one-half of the costs in both courts in this case to be taxed." Proper exceptions having been noted, a petition in error was filed in this court seeking to reverse the judgment of the circuit court. Dodge & Canary, for plaintiff in error. BURKET. J. Plaintiff in error urges that the contract is void as to all except the one acre, for the reason that it is said to be indefinite and ambiguous, and that there is no description of the forty acres sought to be conveyed. In Texas it is held that a grant by the owner, of a certain number of acres in a particular tract, will authorize the grantee to locate it in any part of the tract. Wofford v. McKinna, 23 Texas, 36. In Illinois such a description is held to be so vague and uncertain as to convey no title. Shackleford v. Bailey, 35 Ill., 391; Laflin v. Herrington, 16 Ill., 304; Hughes v. Streeter, 24 Ill., 647. Stahl v. Van Vleck. In this state at an early day, courts undertook to carry out the intention of the parties, and held that a deed conveying a certain number of acres out of a designated corner of a certain tract of land, was a good conveyance of that number of acres in a square form out of the designated corner. And this was carried so far as to hold that a grant of fifty-one acres in the northeast part of a certain tract, was good as a conveyance of fifty-one acres in a square form in the northeast corner of the tract. Walsh v. Ringer, 2 Ohio, 327; Cunningham v. Harper, Wright, 366. In Hay v. Storrs, Wright, 711, there was excepted out of a conveyance of a tract of land half an acre opposite where Mr. Harvey formerly resided. The exception was held good, and sufficiently definite to enable an officer to find and locate it. The court say: "There can be no doubt of the intention of the grantor to reserve to himself, by exception from his deed, one-half an acre. Where does it lie? Find where Harvey lived-if it be opposite the corner of the one hundred and thirtyfour-acre tract, it lies in the corner, in a square form-if so far from the corner, that the lines of the half acre would not reach it in a square form, then a line from the centre of the residence of Harvey would be the centre of the half acre tract on the street, and the tract would be laid out in a square form by parallel lines, making that the base." Plaintiff in error owned three tracts of forty acres each, and by selecting the one acre upon which the well was to be drilled, he thereby designated that the forty-acre tract out of which the one acre was so selected should be the forty acres Stahl v. Van Vleck. to be operated under said lease in case gas or ɔil should be obtained. If the number of acres contracted to be operated in case gas or oil shall be found, is the same as a subdivision of a section, say 10, 20, 40, 80 or 160 acres, it will be held that the subdivision of the section upon which the well is located, is the land intended to be operated under the lease. Otherwise the land to be operated is to be taken in a square form with the well as its centre, unless the well is so near a line of the land as to make this impossible, in which case the land to be operated will be in a square form including the well, and extending to such line. If gas or oil is found on adjoining lands, the tract to be operated must be ascertained in the same manner in which the half acre was ascertained in Hay v. Storrs, supra. Next, it is urged that the contract was void, and remained so to the time of the commencement of the action, for the reason that upon its face it is without consideration. The contract is expressed to be upon the consideration thereinafter stipulated and agreed upon. There are many stipulations and agreements thereinafter contained, founded however upon the contingency that oil or gas be found and developed upon said premises. There is also a stipulation to the effect that if operations upon said premises be not commenced within five years that the contract shall be void. There is also an agreement that if the second party shall not commence a test oil or gas well at Rising Sun or vicinity in ninety days, that the lease should be void. So far the stipulations and agreements are contingent, but there is a further and positive agree |