rive, to a mathematical certainty, at the interest of each, and perhaps no two persons would arrive at the same result from the evidence in the record in this case. Counsel for the respective parties practically agree that the amounts invested by each of the parties as shown by the books from time to time contain errors, and that the other evidence in the case must be considered in arriving at a just and approximately correct result. The figures furnished us by counsel for plaintiffs in error, and which they argue are supported by the evidence, would reduce plaintiff's interest to 94 per cent. On the other hand, counsel for defendant in error furnish us with figures, which they likewise contend are supported by the evidence, which would increase his interest to at least more than 16 per cent; and if error was committed by the trial court in its finding, it was against their client. We have given careful consideration to the entire evidence in the record and believe the court arrived at substantial justice between the parties on the evidence presented to it. Objection is made to the order of the court requiring the defendants to answer certain interrogatories attached to the replies. The answers to those interrogatories were not offered in evidence by either party, and the defendants testified to the same matters while on the stand, and it has not been made to appear that they were prejudiced even if the ruling as to certain of the interrogatories was erroneous. Error is also assigned in the ruling of the court in refusing to allow defendants to amend their answers after the evidence had all been introduced. Such amendment at that time would be proper only in order to have the pleadings conform to the proof and as the proposed amendment would not conform to the proof as found by the court from the evidence, the amendment was properly refused. Upon the whole record we do not discover any such prejudicial error as will entitle plaintiffs in error to a reversal of the judgment, and it is, therefore, affirmed. Affirmed. POTTER, J., and ARNOLD, District Judge, concur. HON. JOHN R. ARNOLD, Judge of the Third Judicial District, was called in and sat in place of Blydenburgh, J., who had announced his disqualification to sit in the case. FAST v. WHITNEY. (No. 918; Decided January 30, 1920; 187 Pac. 192.) PLEADING OBJECTIONS TO INTRODUCTION OF EVIDENCE CHALLenges SUFFICIENCY OF PETITION-OIL LEASES-EXTENSION OF TIME FOR COMMENCING OF WORK-DEFECT IN PETITION CURED BY ANSWER— MINES AND MINERALS-WHETHER "DRILLING OPERATIONS" COMMENCED IS A QUESTION OF FACT-WORDS AND PHRASES. 1. Where objections to the sufficiency of a petition are made for the first time upon the trial, the pleading should be liberally construed and effect given to every legal intendment so that it may be sustained if possible. 2. A petition alleging that an oil lease carried certain quoted indorsements extending the time for plaintiff lessees to commence work, held, sufficient to show an extension of the lease as against an objection to the introduction of evidence made at the trial. 3. Any defects in a petition as to allegations of an extension of time granted to commence drilling operations under an oil lease, were cured by admissions in the answer that the time for such work was extended to the date mentioned in the petition. 4. Allegations that the lessees of oil lands had staked the location of the first well, had placed lumber on premises for repairing a derrick for drilling purposes, and had contracted for bringing a derrick upon the leased lands within the time prescribed for commencing drilling operations, and that within ten days after such time limit a derrick was installed on the premises despite difficulties caused by snow, etc., held, not to establish, as a matter of law, that the lessees had failed to commence "drilling operations" within the prescribed time. 5. An objection to the introduction of evidence upon the ground that the petition states no cause of action raises the question whether the pleading is legally sufficient. APPEAL from the District Court, Park County; HON. E. C. RAYMOND, Judge. Action by James M. Fast and others against F. A. Whitney and another to enjoin lessors from asserting a forfeiture of an oil lease and interfering with drilling operations of lessees. There was a judgment for defendants and plaintiffs appeal. C. A. Zaring and R. B. Landfair, for appellants. The trial court, upon objections made by defendants to the introduction of evidence, ruled that the petition did not. state a cause of action, dismissing plaintiff's action and entering judgment for defendants; the action was for injunction; it is a proper remedy where a lessor re-enters and claims forfeiture (Thornton on Oil and Gas, sec. 103; Gas Co. v. Poterie, 153 Pa. St. 10; Ohio Oil Co. v. Hurlbut, 7 Ohio Cir. Dec. 321); in construing a lease the entire instrument will be considered to arrive at the intention of the parties (Oil Co. v. Kelly, 6 O. C. D. 470; Elliott on Contracts, 1515); the intent is the essence of every agreement (Lachmund v. Sing, 120 Pac. 598); a lease will be construed most strongly against the lessor (24 Cyc. 915); staking out a location, contracting for lumber for rigs and cutting timber, is a commencement of operations (Duffield v. Russell, 65 O. St. 605); lessors are estopped from declaring a forfeiture (Thornton O. & G. 257); forfeiture of a lease will not be permitted where lessor has expended or is expending money without an opportunity first given to more speedily develop the property (Oil Co. v. Hurlbut, supra, 60 O. St. 613); justifiable delay will not work a forfeiture (Longworth v. Taylor, 1 Ohio Fed. Dec. 643). E. E. Enterline and W. L. Simpson, for respondents. The court sustained a demurrer ore tenus to the petition; respondents have moved to dismiss the appeal on the ground that the record on appeal does not show that it was filed in the office of the Clerk of the Trial Court as required by laws of 1917, chap. 32, sec. 4-10. Statutes must be com plied with (2 R. C. L. 73); the allegations of the petition are insufficient to show commencement of drilling operations; there is a distinction between a commencement of operations and a commencement of drilling operations; there was no waiver by the lessors; there can be no waiver of a non-existent or lost right (40 Cyc. 258; Inv. Co. v. Marrow, 108 Cal. 490, 41 Pac. 487; Ins. Co. v. Lbr. Co., II Okla. 585, 61 Pac. 938); there are no allegations of estoppel in the petition (10 N. C. L. 149; Hallick v. Bresnahan, 3 Wyo. 73); respondents had a right to declare a forfeiture and to have the title quieted in them (Thornton on O. & G. 782; Huggins v. Daley, 99 Fed. 606; Detler v. Holland, 57 O. St. 492, 49 N. E. 690; Oil Co. v. Oil Co., 34 S. E. 923; Federal Oil Co. v. Western Oil Co., 21 Fed. 674, 57 C. C. A. 428; Iron Co. v. Trout, 83 Va. 397); the judgment below should be affirmed. POTTER, JUSTICE. This case is here on appeal. It is an action brought to enjoin the lessors from asserting a forfeiture of an oil lease and from interfering with the prosecution of drilling operations by excluding the lessees from the premises covered by the lease. The defendants having filed an answer and crosspetition, without previously objecting to the petition by demurrer or otherwise, interposed an objection on the trial to the introduction of any evidence by the plaintiffs on the ground that the petition does not state facts sufficient for a cause of action in favor of the plaintiffs or against the defendants. That objection was sustained; and thereupon the defendants introduced evidence in support of their crosspetition praying that their title to the premises be quieted as against any claim of the plaintiffs or either of them. Judgment was rendered in favor of the defendants, whereby it was ordered that the plaintiffs take nothing in the action, that their petition be dismissed, and that the title of defendants to the premises covered by the lease be quieted as against the plaintiffs. The rulings of the court excluding all evidence by the plaintiffs, permitting evidence to be introduced in support of the cross-petition, and rendering judgment for the defendants, are specified as error. the record does not show any exception to the ruling allowing the introduction of evidence under the cross-petition. An exception is shown to the ruling sustaining the objection to the introduction of any evidence by the plaintiffs, and also to the findings, decision and judgment. And the only questions presented here by the briefs relate to the sufficiency of the petition to state a cause of action. The petition sets out the lease in haec verba, together with all endorsements thereon, and alleges that the plaintiffs, James M. Fast, R. B. Land fair and J. C. Reese are the owners and holders of said lease entered into between the defendants, F. A. Whitney and Leona G. Whitney, his wife, and J. C. Reese, on August 14, 1916. The premises, as described in the lease, are located in Park county, in this state. By the terms of the lease the lessor grants, demises and leases unto J. C. Reese, "all the oil, petroleum, gas, hydro-carbons, water and minerals of every kind and character whatsoever in or under said lands and the right to sever and remove the same; also the right to construct and maintain telegraph, telephone, pipe lines, roadways from adjoining lands on or across the demised premises; the right to construct and maintain buildings, derricks, tanks and other structures used or necessary for the boring or excavating, preserving and handling of oil, gas, hydro-carbons, water and other minerals produced on the demised premises. To have and to hold the same unto the said lessee for the full term of 5 years from and after the date hereof, and as much longer as either oil, gas, hydro-carbons, water and other minerals in paying quantities are produced, provided that all covenants and conditions hereof are fully kept and performed by the said lessee. Provided: The said lessee commences drilling on said lands or within a radius of one mile from said property within 60 days from the date hereof and carry forward the work of completion with all reasonable dispatch unless prevented by strikes, the elements, un |