Ireland v. Francisco Mining Co. , 85 Ind. App. 428 ( 1926 )

On Petition for Rehearing.

McMahan, C. J.

Appellant in support of his petition for a rehearing says the essential questions of law arising upon the record depend largely upon the construction of the agreement between Mrs. Ireland and appellee, and complains because we set out the deed to him under which his grantors reserved the right to mine the coal, and did not set out the contract between his mother and appellee.

In this connection appellant says this agreement shows that the purpose and intent of his mother was to sell appellee all the coal in vein No. 5; that the title to the coal should pass on the execution of the agreement; that the coal should be removed within the shortest period of time possible; that his mother as life tenant should derive an annual income therefrom of not less than $6,000; and that appellant should be deprived of the whole of the coal in said vein.

The record does not sustain these contentions. The agreement gave appellee “the right to enter under and through, but not upon the surface of said lands at any time hereafter and search for coal of said number 5 vein, and when found to remove the same from said lands, together with all rights and privileges incident to mining and securing said coal.” The “minimum yearly rental” to be $500, instead of $6,000 as stated by appellant. There is nothing in the agreement which by any possible construction can be construed as tending to show that the coal should be removed within any period of time. There is no allegation in either the complaint or the answer concerning the presence or absence of mines on the land in question at the time of the execution of the deed to appellant or at any other time, other than may be inferred from the allegation in the answer to the effect that appellee was mining and removing the coal “in the regular and ordinary way and manner of removing coal under like circumstances and like conditions,” and “in strict compliance with the deed” to appellant and the agreement between Mrs. Ireland and appellee.

Appellee when it entered into the agreement with Mrs. Ireland knew her right to the coal on the land was secured under the reservation in the deed to appellant. It knew that the only title Mrs. Ireland had was a life estate with the “right to mine, and remove from said land, in the ordinary and usual course of mining, any coal * * * without becoming accountable to the remainderman for waste.” This agreement can only be construed to give appellee the right to mine and remove coal in the ordinary way during the lifetime of Mrs. Ireland. The demurrer admits the allegation in the answer to the effect that the coal was being mined and removed in the usual and ordinary manner.

A considerable portion of appellant’s brief is devoted to the contention that a life tenant has the right to work mines already open and in operation at the time his estate vests, but has no right to open mines for the purpose of reaching and removing coal in place beneath the surface. No such question is'presented by the memorandum accompanying the demurrer to the answer.

Petition for rehearing denied.