Appeal from the Circuit Court of Christian county; the Hons.
WARD P. HOLT and DANIEL H. DAILEY, Judges, presiding. Affirmed.
JUDGE REYNOLDS DELIVERED THE OPINION OF THE COURT.
This suit involves the right to drill for oil on certain land owned by George Maras and Sophie Maras, in Christian county, Illinois. Prior to 1906 the land involved, hereinafter called the "land," was owned by Isaac Hoover, Jr., in fee simple, and on April 6, 1906, Isaac Hoover, Jr., with his wife, Amanda Hoover, conveyed by warranty deed the "coal and other mineral underlying the surface" of the land, "together with the following rights and privileges, to-wit: to enter under the surface of said premises, and mine, dig and remove the coal and other mineral therefrom," to the Illinois Midland Coal Company. Later Midland Coal Company was merged into and became part of Peabody Coal Company. Peabody Coal Company later made its oil and gas lease covering the land, to Sentry Royalty Company, and the Sentry Royalty Company assigned this lease to the plaintiff herein, Joe Simpkins. In 1916 Isaac Hoover, Jr., died and by his will the land involved herein was devised to Isaac Merle Glass. In 1931 Glass and his wife, by their warranty deed, conveyed the land herein to George Maras and Sophie Maras, as joint tenants, except the coal and other minerals underlying said land. In 1955 oil was discovered on lands adjoining this land, and oil wells were drilled on these adjoining lands. In October 1955, the defendants gave an oil and gas lease for these lands to Archie Schryver and Frank Sgro. These lessees after unsuccessful negotiations with Peabody Coal Company, brought suit in the Circuit Court of Christian county against Peabody Coal Company to quiet title, to remove clouds upon the title and to establish title, asserting that Peabody Coal Company had no easement or right to enter upon the surface of the land, and asking for an injunction against Peabody Coal Company, its successors or assigns, from asserting any right or title to the oil and gas underlying the land, and to enjoin Peabody Coal Company, its successors or assigns from entering upon the surface of the land for any purpose whatever. This suit is still pending. On August 14, 1956, Glass and his wife conveyed by mineral deed all their right, title and interest in and to the oil, gas and other minerals underlying the land, to Russell Fletcher, and on the same day, the grantee Fletcher, conveyed by mineral deed the same rights in the land to R.H. Throop and Juanita Throop. On February 13, 1957, one Burton Deck was appointed conservator of the Estate of Isaac Merle Glass, and later, upon authority granted by the County Court of Christian county, executed an oil and gas lease to Joe Simpkins, the plaintiff herein.
In September 1957, the plaintiff commenced the instant suit against the defendants George Maras and Sophie Maras, praying for a temporary injunction, to enjoin the defendants, their agents, servants, employees and attorneys from preventing the plaintiff, his agents or assigns, from entering upon the premises and using so much of the surface as may be necessary to drill for, mine and remove the oil and gas therefrom, and also praying for judgment that the defendants have no right, title or interest in and to the minerals, leasehold, estate, or any oil and gas lease, and that their surface rights are subject to plaintiff's rights to mine and remove the oil and gas. The court granted a temporary injunction on September 20th, 1957, and on the same day the defendants filed their answer to the complaint. With their answer, the defendants also filed a motion to dissolve the temporary injunction. On September 25, 1957, the court denied the motion to dissolve the temporary injunction. From that order of denial, an appeal was taken to this court.
The defendant assigns five grounds for reversal. 1. That the claim of the plaintiff was founded upon a written instrument, and that the complaint failed to comply with the terms of Section 36 of the Civil Practice Act, in that a copy of the lease was not attached to the complaint, or that the complaint did not set out in detail the terms of the lease or leases. 2. That the complaint failed to charge sufficient facts to show that irreparable injury would result if the injunction was not granted. 3. That a prior suit in equity pertaining to the same matter was pending. 4. That other persons should have been made parties to the cause. 5. That a temporary injunction is only to preserve the status quo until a hearing could be had on the merits, and where the effect of the temporary injunction would be to disturb rather than to maintain the status quo, the granting of the injunction was reversible error.
Taking up the first point, Section 36 of the Civil Practice Act says: "If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his pleading an affidavit stating facts showing that the instrument is not accessible to him."
This being a suit for injunction only, insofar as the matter is before this court, the question arises as to whether this lease is such an instrument upon which the suit is based, so as to fall within the provisions of Section 36 of the Civil Practice Act, or merely evidentiary in connection with the application for the injunction.
The defendants cite the case of Morris v. Goldthorp, 390 Ill. 186, in support of their contention on this point. This was a suit for specific performance under a contract and option. The court in that case held that the contract upon which the action was founded, consisted of the option and the appellant's acceptance of its terms, and that it was the duty of the plaintiff to either set out in the complaint the written acceptance of the option on which he relied, or to attach such a copy thereof to the complaint.
The Morris v. Goldthorp case is quoted in the case of Welsh v. Jakstas, 401 Ill. 288, at page 294, that case also being a suit for specific performance. While the court in the latter case, in passing on the failure to have a copy of the option agreement attached to the complaint, goes on to say: "It is apparent from the record in this case that appellants were not injuriously affected or in any way prejudiced by the fact that the complaint did not set out in haec verba the written notice of acceptance. It is not contended that the appellants were not fully aware, at the time the complaint was filed, of the contents of the written notice and of the manner in which and to whom and where such notice was given. The rule is that to authorize a reversal of a decree it must not only appear that an error intervened, but the record must contain enough to raise and justify the inference that the error was prejudicial, or probably prejudicial, to the party who asks reversal." Citing Bettis v. Green, 171 Ill. 495.
In the case of H.E. Mueller & Co. v. Kinkead, 113 Ill. App. 132, decided in 1903, the court in that case held that the Practice Act only required the plaintiff to file with his declaration a copy of the instrument on which the action is brought, and does not contemplate the necessity of filing a copy of every paper which may properly be offered in evidence.
Thus, the question as to whether or not a copy of the lease should have been attached to the complaint, rests upon the point as to whether the action is founded on the lease, or is based upon the alleged wrongful actions of the defendants, and the lease is merely evidence of plaintiff's right to the injunction. We are inclined to view the latter as the proper interpretation. Here the original mineral deed to mineral rights under the land was to the Illinois Midland Coal Company. That company became merged into the Peabody Coal Company. The Peabody Coal Company assigned its rights to Sentry Royalty Company, and it in turn assigned to the plaintiff. This constitutes the chain of title and while it might be necessary to present this chain of title as evidence in order to justify the right of the plaintiff to bring his suit for injunction, these are matters of evidence only, the gist of the action and the ground upon which the action was brought being that the defendants refused to permit the plaintiff as holder of the right, to enter upon the lands and drill for oil. The injunction was asked because the defendants, as holders of the surface rights to the land, refused to permit the plaintiff to exercise his rights under the land. The rights of the plaintiff and the rights of the defendants as to ownership are evidentiary in character, and while each must be established, the basis of the suit is the refusal of the defendants to permit the drilling for oil and access on and over the surface of the land to do such drilling.
Where the action is founded on a written instrument, the rule would be different, because in that class of cases, the suit is based upon the written instrument. Here that is not the case.
The second point raised by the defendants is that the complaint failed to charge sufficient facts to show that irreparable injury would result if the injunction was not granted.
The complaint recites that he had attempted to move his well drilling rig upon the land but that the defendants and each of them had interfered and prevented the plaintiff in his operations for the drilling of said oil well and had threatened the plaintiff if he continued in his efforts. That such actions would tie up the machinery and equipment of the plaintiff, and result in great expense and damage to the plaintiff, and on these assertions claims that unless the injunction is issued, the plaintiff will be irreparably injured and damaged.
The case of Washingtonian Home v. Chicago, 281 Ill. 110, is cited by the defendant. That court at page 119 of the opinion said: "It may be said that an injury is irreparable when it is of such a nature that the injured party cannot be adequately compensated therefor in damages, or when the damages ...