complaint was overruled. Answer, the general issue. Trial by jury. Verdict and judgment for appellee. The view we have taken of the complaint makes it unnecessary to further state the contents of the record.

The theory of the pleader is obscure. From the nature of the action, it cannot be treated as a suit for damages for a breach of contract of carriage. Railroad Co. v. Eaton, 94 Ind. 474, 478, 48 Am. St. Rep. 179. It must be regarded as an action sounding in tort, and the debated question is whether the tortious act complained of is appellant's dereliction of duty as a common carrier, in causing appellee to leave its car at the wrong place, or appellant's negligent obstruction of its railroad, whereby appellee was injured while walking over it. In deciding the question, we must construe the complaint by the sense usually imported to its terms, not by what appellee now asserts to be his meaning. Thus construing it, it will be observed that appellee makes no complaint about being discharged at the wrong place, or of the manner of his discharge. He does not aver that the act of the conductor which induced him to leave the car was either negligent or wrongful, nor does he use any other epithet to characterize his discharge as being otherwise than rightful. Neither does he state or ask for any damages by reason thereof. But all the averments concerning his taking passage on the car, his place of destination, his want of knowledge of the route, the circumstances of his leaving the car, are mere recitals of the same class, as matter of inducement, to show that he was rightfully on the railroad, when, while proceeding "with all due care and prudence, he struck his foot | against a stake that defendant's agents or employés had carelessly and negligently left sticking above the ground four or five inches, and was thrown to the ground, greatly lacerating, bruising, and permanently injuring the plaintiff's knee." And he specifically avers "that all of said injuries, disabilities, pains, and suffering were caused wholly from the aforesaid carelessness, wantonness, and negligence of the defendant." He further says "that by reason of said negligence he has been badly and permanently injured," etc., and by reason thereof has been damaged in the sum of $2,000. Our attention is called to the rule that requires the character of a pleading to be determined from the facts stated, and not from the epithets employed. But this rule will not permit us to carry qualifying terms from one subject to another to meet the varying fortunes of a lawsuit. Appellee had the right to predicate his action upon the delinquency of appellant in causing him to leave the car at the wrong place, or upon the wrong of the company in leaving its roadway obstructed In a manner dangerous to footmen, or upon both grounds. But under the most liberal rules of construction, we cannot assume that he intended to base his case upon both, when

he fails to complain of one, and expressly avers that the other was wrongful, and the sole cause of the injuries for which he seeks to recover. The case cannot, therefore, be brought within the rule contended for,—that whoever does an illegal or wrongful act is answerable for all the consequences that ensue in the ordinary and natural course of events, though those consequences be immediately and directly brought about by other intervening agencies. Under the complaint as it stands, we must assume that the discharge of appellee from the car was satisfactory to him or justifiable. If satisfactory or justifiable, then the company's duty to him as a common carrier was performed when he left the car safely. And as he stood upon the crossing, after the departure of the car, in the absence of any showing to the contrary, his relation to the company was the same as that of a stranger. This being so, when he took up his journey on the company's private railroad without invitation he did so with no greater rights than an ordinary licensee, taking upon himself all the perils that were incident thereto. "The owner of premises," says Mitchell, J., in Railroad Co. v. Griffin, 100 Ind. 221, 50 Am. Rep. 783, "is under no legal duty to keep them free from pitfalls or obstructions for the accommodation of persons who go upon or over them merely for their own convenience or pleasure, even where this is done with his permission. In such case the licensee goes there at his own risk, and, as has often been said, enjoys the license with its concomitant perils." To the same effect, see Faris v. Hoberg, 134 Ind. 269, 33 N. E. 1028, 39 Am. St. Rep. 261; Lingenfelter v. Railway Co., 154 Ind. 49, 55 N. E. 1021; Cannon v. Railway Co., 157 Ind. 682, 62 N. E. 8. The complaint states no cause of action.

Judgment reversed and cause remanded, with instructions to sustain appellant's demurrer to the complaint.

1. Where a railroad conductor told a passenger he would not be carried, and that if he did not get off he would be thrown off, and followed the passenger onto the platform, and, standing over him, threatened to throw him off if he did not alight, there was, in law, a forcible ejection, though the conductor did not touch the passenger.

2. Where plaintiff, having a ticket to a certain point, boarded a freight train, which the ticket agent had told him would carry him, and the conductor refused to carry him, and compelled him to jump in the dark from the train while it was in motion, whereby plaintiff was injured, the company was liable, though, under the rules of the company, the train was not one that carried passengers.

3. Sup. Ct. Rule 22, cl. 5, requires that a par

ty asserting that a ruling of the trial court is erroneous must refer to the page and line of the transcript where the same may be found. Held, that on appeal the action of the trial court in admitting and excluding evidence will not be considered where the rule is not complied with.

4. Rule 3 of the supreme court provides that the name of each witness, and whether the examination is direct, cross, or redirect, shall be stated on the margin of each page, and "appellant shall prepare an index referring to the initial page of the direct, cross and re-examination of each witness, * such index to form the first page of the transcript"; and clause 5 of rule 22 provides that "if the insufficiency of the evidence to sustain the verdict, in fact or in law, is assigned, the statement shall contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely." Held, that assignments that the verdict was contrary to law and not sustained by the evidence, etc., would not be considered where the rules were not complied with.

Appeal from circuit court, Vermilion county; A. F. White, Judge.

Action by Robert R. Ditto against the Indiana, Decatur & Western Railway Company. From a judgment for plaintiff, defendant appeals. Transferred from the appellate court under section 1337u, Burns' Rev. St. 1901 (Acts 1901, p. 590). Affirmed.

F. F. James and R. D. Marshall, for appellant. Conley & Conley, for appellee.

MONKS, J. This action was brought by appellee against appellant to recover damages for personal injuries alleged to have been received by appellee while riding upon a freight train on appellant's railroad. A trial resulted in a verdict in favor of appellee, and, over a motion for a new trial, judgment was rendered thereon against appellant. The assignment of errors calls in question the action of the court in overruling appellant's demurrer to the complaint, in sustaining appellee's demurrer to the second and third paragraphs of appellant's answer, and in overruling appellant's motion for a new trial.

It is insisted by appellant that the complaint is not sufficient, because it is not alleged that said freight train was one which, under the rules and regulations of the company, carried passengers between the stations named on appellee's ticket. Railroad Co. v. Bills, 104 Ind. 13, 17, 3 N. E. 611; White v. Railroad Co., 133 Ind. 480, 486, 487, 33 N. E. 273; Railroad Co. v. Kennedy, 77 Ind. 507, 510; Railroad Co. v. Lightcap, 7 Ind. App. 249, 34 N. E. 243; Railroad Co. v. Field, 7 Ind. App. 172, 34 N. E. 406, 52 Am. St. Rep. 444. Appellee, however, contends that it is not material whether or not he was in fact a passenger, or whether said freight train carried passengers, for the reason that the complaint charges an injury for which appellant was liable even if said train, under the rules of the company, did not carry passengers; citing Railroad Co. v. Bills, 118 Ind. 222, 20 N. E. 775; Railroad Co. v. Willoeby, 134 Ind. 563, 565, 566, 33 N. E. 627; Railroad Co. v.

Matthews, 13 Ind. App. 355, 41 N. E. 842. The complaint is not a model of good pleading, and it is somewhat difficult to determine the theory upon which it was drawn. We think, however, after a careful examination of its allegations, that it charged an injury for which appellant was liable, although said train did not carry passengers. It appears from the complaint: That appellee had a ticket which entitled him to be carried on appellant's railroad from Hume to Dana. That he was informed by appellant's ticket agent that a certain freight train would stop at Dana, and that it carried passengers to that point when it was required to stop for other purposes, and directed him where to board said freight train. That appellee entered the caboose of said freight train, and, after the same had gone about three miles, the conductor in charge of said train refused to take his ticket, and ordered him to get off the train at once; using the most vile and insulting language, and applying to appellee the most opprobrious and insulting epithets. The conductor continued his abusive language, demanding that appellee get off the train. Appellee protested, and declared he could not get off when the train was running at that rate of speed. The conductor had the train "slowed down," but declared it would not stop, and that appellee must get off, or he would throw him off. That appellee, to avoid being assaulted and thrown from the train, went onto the steps of the caboose, and the conductor followed him out, and stood over him and ordered him to get off, or he would throw him off. That to save himself from assault and injury, appellee attempted to get off the train while it was moving, and was injured. It was so dark when appellee attempted to get off the train that he could not It is true that it is not alleged that the conductor touched appellee, but it is clear that appellee was compelled by the order and demonstrations of the conductor to attempt to get off the train while it was moving, when it was so dark appellee could not see, -the conductor refusing to stop the train,and that appellee was injured thereby. Appellee did not attempt to get off merely because the conductor ordered him to do so, but the acts and conduct of the conductor in following him out of the caboose and standing over him while he was on the step, threatening to throw him off unless he got off while the train was moving, were equivalent, under the circumstances, to actual force. If a person not entitled to be carried as a passenger is injured by being ejected while the car is in motion or in a dangerous and improper place, where he is exposed to unnecessary peril, the railroad company is liable for such injury. 4 Elliott, R. R. p. 2575. The second and third paragraphs of answer allege facts showing that said freight train did not carry passengers, except on a permit issued by the superintendent of said railroad. As the complaint charges an injury for which

see.

appellant was liable even if said train did not carry passengers, it is clear that the facts alleged in said paragraphs were not a defense to such action.

A number of causes assigned for a new trial call in question rulings of the court in the admission and exclusion of evidence. Appellant has not called our attention to the page and line of the record showing the rulings of the court in admitting and excluding such evidence. Clause 5 of rule 22 of this court (55 N. E. vi) requires that a party asserting that a ruling of the trial court is erroneous must refer to the page and line of the transcript where the same may be found. It has been uniformly held that this court will not search the record for errors, and unless such rule is complied with they will not be considered. Board v. Gibson (this term) 63 N. E. 982; Packet Co. v. Pikey, 142 Ind. 304, 317, 40 N. E. 527; Harlan v. State, 134 Ind. 339, 342, 33 N. E. 1102; Railroad Co. v. Donnegan, 111 Ind. 179, 190, 12 N. E. 153; Brunner v. Brennan, 49 Ind. 98, 101; State v. Winstandley, 151 Ind. 495, 501, 502, 51 N. E. 1054, and authorities cited.

It is insisted that the verdict is contrary to law, and not sustained by sufficient evidence. These causes for a new trial, as well as the other causes assigned, depend for their determination on the evidence, and will not be considered, on account of the failure of appellant to comply with that part of rule 3 which requires that "the name of each witness and whether the examination is direct, cross or re-direct, shall be stated on the margin of each page and shall prepare an index referring to the initial page of the direct, cross and re-examination of each witness, *** such index to form the first page of the transcript," and that part of clause 5 of rule 22 which provides that "if the insufficiency of the evidence to sustain the verdict, in fact or in law, is assigned, the statement shall contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely." 55 N. E. vi.

Judgment affirmed.

(159 Ind. 398)

INDIANA NATURAL GAS & OIL CO. v. HINTON.1

(Supreme Court of Indiana. May 27, 1902.) OIL LEASE-COVENANTS RUNNING WITH LAND -PLEADING-FILING COPY OF ASSIGNMENT.

1. The complaint in an action against the assignee of a lease of gas and oil lands for breach of covenant was not defective, in not having the assignment of the lease, or a copy thereof, filed with it, under Burns' Rev. St. 1901. § 365, providing that, when any pleading is founded on a written instrument, the original, or a copy thereof, must be filed with the pleading; the action not being founded on the assignment, but on the lease.

2. Covenants in a lease of oil and gas lands for the payment of rent, and the furnishing of gas to heat and light the dwellings on the demised premises, are covenants running with the 1 Rehearing denied.

land; and, in an action against an assignee of the lessee for a breach thereof, it is not necessary to allege that the assignee agreed to perform such covenants.

3. A lease of oil and gas lands, executed on July 25, 1889, required the lessees to drill a well within 12 months, or pay the lessor $56 yearly as rent. Another article of the lease provided that the lessees should furnish gas to heat and light the dwelling on the premises demised on or before November 15th. Held, that the covenants, though inconsistent, were independent and lawful, and the lessees were not excused from liability for failure to furnish gas within the specified time by their neglect to drill a well.

4. Defendants were the assignees of an oil and gas lease which required the lessees to furnish gas to the dwellings on the premises. and to pay certain rentals. Plaintiff became owner of the premises in 1896 and occupied them for some time thereafter. In 1898 he executed a deed absolute on its face, but only intended to secure a debt owing to his grantees. which deed provided that the grantees were "to have the proceeds accruing from said lease." In 1899 the grantees quitclaimed to M. at the plaintiff's request, which quitclaim was to secure M. for money loaned plaintiff to pay the grantees in the deed of 1898. Plaintiff sues for breach of covenant to furnish gas for the dwellings on the premises. Held, that plaintiff, who occupied and used the lands, was the only one damaged by the breach, and could maintain the action, and not the grantees in the deeds; the word "proceeds" referring to the rentals stipulated in the lease, and being transferred on a condition never enforced.

Appeal from circuit court, Grant county; H. J. Paulus, Judge.

Action by Albert H. Hinton against the Indiana Natural Gas & Oil Company. From a judgment for plaintiff, defendant appeals. Transferred from appellate court, under Act March 13, 1901. Affirmed.

Foster Davis and Blacklidge, Shirley & Wolf, for appellant. A. R. Long, for appellee.

DOWLING, C. J. This was an action upon a gas and oil mining lease to recover damages for the breach of a covenant to furnish gas to the lessor for the purpose of heating and lighting the buildings upon the premises demised. Demurrer to complaint overruled. Answer in denial. Trial by jury, and verdict for appellee. Motion for new trial overruled, and judgment on verdict. The rulings on the demurrer and on the motion for a new trial are assigned for error.

The facts, as stated in the complaint, were as follows: On July 25, 1889, one Joseph McGraw, being the owner of the W. 1⁄2 of the N. E. 4 of section 10 in township 22 N., range 7 E., in Grant county, leased to J. S. Smith and H. C. Ziegler the privilege of drilling wells for oil, gas, and water thereon, and transporting these substances from said lands. Shortly afterwards Smith and Ziegler sold, assigned, and transferred their rights as lessees to the appellant, the Indiana Natural Gas & Oil Company. After the making of the lease, the lessor, McGraw, sold and conveyed the said lands, together with his interest in the lease, to William S. Beeson;

and on March 2, 1896, Beeson sold and conveyed said lands, and his rights under said lease, to the appellee, Albert H. Hinton. The said company has ever since the assignment of the lease paid to the successive owners of the said premises the money rent of $56 stipulated for in the lease. The appellee owned and occupied the lands from March 2, 1896, until January 6, 1900. Performance of the agreement to furnish gas according to the terms of the lease was demanded by the appellee, but was refused by the appellant. The value of the gas which should have been furnished by the appellant to the appellee was $200. A copy of the lease was filed with the complaint, and was made an exhibit. It was in the usual form, and, among other provisions, contained the following: "The above grant is upon the following terms: First. Second party agrees to drill a well upon said premises within twelve (12) months from this date, or thereafter pay to the first party a yearly rental of fifty-six ($56) dollars until said well is drilled. *

Second. Should

oil be found in paying quantities upon the premises, second party agrees to deliver to first party, in the pipes with which second party may connect the well or wells, the oneeighth (%) part of all the oil produced and saved from the premises. Third. Should gas be found, second party agrees to pay first party two hundred ($200) dollars yearly, pay. able quarterly on demand, for each and every well which is transported or used off the premises, so long as the same is transported. Fourth. First party shall have, free of expenses, gas from the well or wells, to use, at his own risk, to light and heat the dwellings now on the premises, with pipe to conduct the same to said dwellings free of cost. ** Ninth. Second party agree to furnish gas to first party for use at his premises on or before the 15th day of November." The lease was executed July 25, 1889, by Joseph McGraw, as lessor, and by J. S. Smith and H. C. Ziegler, as lessees.

The points made against the complaint are that no copy of an assignment of the lease by Smith and Ziegler to the appellant was filed with that pleading, that the complaint contains no averment that the appellant agreed to perform the conditions of the lease on the part of the lessees, that it was not alleged that any well was drilled on the premises leased, and that by the terms of the lease it appeared that upon the failure of the lessees to drill a well within 12 months after July 25, 1889, the only indemnity to which the lessor became entitled was a yearly money rent of $56.

The complaint shows a sale of the lease by Smith and Ziegler, the original lessees, to the appellant, and the payment thereafter by the appellant to the appellee of the money rent as it became due, so long as the appellee occupied the lands. The action was not founded upon the assignment, if there was one, but upon the lease itself; and therefore 64 N.E.-15

it was not necessary to set out an assignment, or to file a copy of it with the complaint. It is only when a pleading is founded upon a written instrument that a copy must be filed. Burns' Rev. St. 1901, § 365 (Rev. St. 1881, § 362; Horner's Rev. St. 1901, § 362); Short v. Kerns, 95 Ind. 431; Clark v. Trueblood, 16 Ind. App. 98, 100, 44 N. E. 679; Barns v. Mowry, 129 Ind. 568, 28 N. E. 535.

The agreement of the lessees to pay the rent, and to furnish the lessor with gas to heat and light the dwellings on the premises demised, were covenants running with the land; and the appellant, as the assignee of the lease, was bound to perform them. Its tenancy under the lease was acknowledged by its payment of the yearly rent of $56 agreeably to the terms of that instrument, and, as assignee and tenant, it was charged with the performance of these conditions. "Covenants are either real or personal. The former are such as are annexed to an estate, or are to be performed on it, and are said to 'run with the land,' so that he who has the one is subject to the other. In order to run with the land and bind the assignee, it must respect the thing granted or demised, and the covenant must concern the land or estate demised." Wood, Landl. & Ten. (2d Ed.) p. 669, § 306. “An assignee is personally liable to the lessor upon all covenants which run with the land, the premises also remaining liable to a distress by the latter for rent." Tayl. Landl. & Ten. (8th Ed.) § 109. "When a covenant is for the benefit of the estate demised, it runs with the land, and will extend to the assignee, though he is not named." Wood, Landl. & Ten. (2d Ed.) p. 673, § 307, and cases cited in note 1. It is said in Carley v. Lewis, 24 Ind. 23, that: "A covenant for the payment of rent, whether it be made by the grantee of lands in fee, reserving rent to the grantor, or by a lessee for a term, belongs to that class of covenants which are annexed to, and run with, the land. The land itself is the principal debtor, and the covenant to pay rent is the incident. It follows the land upon which it is chargeable into the hands of the assignee. Van Rensselaer v. Bonesteel, 24 Barb. 365; Vyvyan v. Arthur, 1 Barn. & C. 410."

As the assignee of the lease is liable to the original lessor, or his assigns, only in respect of privity of estate, the lessor's right of action in no sense arises upon the assignment, unless he chooses to take advantage of special conditions for his benefit contained in it. Wood, Landl. & Ten. (2d Ed.) p. 741, § 337. See, also, De Pere Co. v. Reynen, 65 Wis. 271, 22 N. W. 761, 27 N. W. 155; Salisbury v. Shirley, 66 Cal. 223, 5 Pac. 104; Oil Co. v. Blair, 113 Pa. 83, 4 Atl. 218, 57 Am. Rep. 442; Fennell v. Guffey, 139 Pa. 341, 20 Atl. 1048; McCormick v. Young, 32 Ky. 294; Trabue v. McAdams, 71 Ky. 74; Bedford v. Terhune, 30 N. Y. 453, 86 Am. Dec. 394; Trask v. Graham, 47 Minn. 571, 50 N. W.

917; Waller v. Thomas, 42 How. Prac. 337. An allegation that the assignee of the lease agreed to perform the covenants of his assignor was not required.

The proposition that the failure of the lessees to drill any well upon the premises excused the appellant from the performance of the covenant to furnish gas to heat and light the dwellings on the land is not sustained by the provisions of the lease, as we understand them. The lessees agreed to drill a well within 12 months from July 25, 1889, or, failing to do so, to pay the lessor $56 yearly as rent. By article 9 of the lease the lessees covenanted that they would furnish gas to heat and light the dwellings on the premises demised on or before November 15th, which must be understood to mean November 15, 1889. The two covenants were independent of each other. The first was in the alternative. The latter was unconditional. A breach of the latter might occur before the time allowed for the exercise of the option of the lessecs expired. Gas was to be furnished within 4 months, but the lessees had 12 months within which to decide whether they would drill a well for their own purposes. The two covenants may have been inconsistent, but both were lawful. Some of the rules for the construction of ambiguous or doubtful covenants in leases are the following: "The whole of a covenant is to be taken together, and that construction is to be given to it which renders the whole operative; and if there is any doubt or ambiguity upon the sense of the words, or if they are susceptible of two constructions, that construction is to be placed upon them that is most strong against the person employing them, to wit, the covenantor." Wood, Landl. & Ten. (2d Ed.) p. 650, § 303. "If covenants refer to, or are • dependent upon, each other, they will be construed together, and every part will be given effect if possible, and every word will be made to operate so as, if it can be done, to effectuate the intention of the parties. If, however, the covenants are independent, they must be construed by themselves; but, even in construing such covenants, the other covenants will be examined to ascertain the true intention of the parties." Id. p. 654, § 303. We think the covenant to furnish gas to heat and light the dwellings on the land was an independent agreement, and that the lessees or their assignee were liable for its breach. Had the lessees or their assignee drilled a well within the four months, and had no gas been found, a different question would have been presented.

Appellant contends that the verdict is not sustained by the evidence, and that its motion for a new trial for that reason should have been granted. The particular point insisted upon is that it was shown by the proof that the appellee, at and before the alleged breach of the covenant sued upon, had conveyed the lands to Beeson and Myers, and therefore was not entitled to damages.

On

this branch of the case the following facts were established by the evidence: On March 2, 1896, Beeson, who owned the land described in the lease, sold and conveyed it to the appellee. On February 3, 1898, the appellee executed to Beeson and his wife a deed absolute upon its face, but intended to secure a debt owing from appellee to Beeson. The instrument contained this proviso and agreement: "And also subject to the gas and oil lease now on said premises, and the said grantees to have the proceeds accruing from said lease." On February 23, 1899, Beeson and wife, at the request of appellee, conveyed the land, by quitclaim deed, to one Alexander J. Myers, from whom appellee had obtained a loan of money, with which the debt to Beeson was paid off. On February 28, 1899, appellee and his wife also made a quitclaim deed to Myers. These deeds were executed to secure Myers in the payment of the moneys lent by him to appellee. The appellee had the privilege of redeeming the land by paying the debt. On January 6, 1900, the appellee and his wife and Myers and his wife conveyed the lands by deeds to James W. Lee, and the debt owing from appellee to Myers was paid from the proceeds of the sale. The appellee occupied the premises from March 2, 1896, the date at which he became the owner, until January 6, 1900, when the lands were sold and conveyed to Lee. The deeds executed by the appellee to Beeson and to Myers were, in legal effect, mortgages only, and the appellee remained the owner in fee simple of the premises until they were sold to Lee. As such owner and occupant of the lands, the appellee was entitled to the benefits of the covenants of the lease running with the land, unless deprived of it for a portion of the time by the proviso and agreement in the deed of February 3, 1898, to Beeson. We think, however, that upon a fair interpretation the words, "the said grantees to have the proceeds accruing from said lease," refer to the $56 to be paid as money rent, the oneeighth of the oil produced to be delivered to the appellee, and the $200 per year for each gas well from which gas should be transported beyond the premises, all of which “proceeds" the lessees had expressly promised to pay and deliver provided gas and oil should be found on the lands in paying quantities. The covenant to furnish gas to light and heat the dwellings on the premises was one which could not be transferred to, or appropriated by, a person not in the possession of the land. Besides, the supposed transfer of the "proceeds" of the lease was conditional only, and by way of security for a debt. The creditors never had the possession of the land, and did not enforce their lien upon the lease. Their debts were paid in full. The appellee. who occupied and used the lands, was the only person injured by the breach of the covenant to furnish gas. The appellee therefore had the right to maintain this action for the damages sustained by him which were occa