King v. Edwards

Lacey, J.

There seems to be a wide difference between the counsel for the respective parties as to what is the proper construction of the contract. On the part of counsel for the appellant it is insisted that the proper construction of the contract is that the lessees absolutely bound themselves to pay royalty for the coal on the “ first day of January and July for each year ” and that the first payment was absolutely due on January following the contract. Hence, that required the mine to be open at least by the first of January following the date of the contract, otherwise no coal could be sold or rent paid. Furthermore that by the terms of the agreement the appellees were, bound to mine the coal from a shaft sunk on the land of King and occupy as much of the surface of the land as necessary for the necessary machinery for the mining and storing of said materials, for tramway and switches for transporting the same, for sinking shafts, for drifting or making slopes for said minerals.

On the other hand counsel for the appellees insist that there was no specified time when the mine should be open except that under all the circumstances it should be opened in a reasonable time. That there was no covenant on the part of the lessees that the mine should be opened on the land of appellant; that to do so was simply a privilege.

After the careful reading of the contract and all its parts we are inclined to adopt the view of the contract entertained by the counsel for appellees.

In our opinion the words contained in said lease, to wit, “ To pay the party of the first part as rent for said coal and minerals five cents per ton for all coal and minerals sold from said premises by the parties of the second part, said rent to be paid as follows, to wit: The first days of January and July of each year after the date of this lease,” simply mean to fix a day on which settlements for all such sums received for coal, etc., shall be made, and have no purpose to bind the lessees absolutely to mine coal before those days. It was a day fixed for settlement if before those days the lessees under the other terms of the contract had anything in their hands to settle for.

As to appellant’s other contention, that the mine was to be opened on his premises, we think him equally at fault. The granting part of the lease which gives the right to mine the coal makes no mention of the manner of mining it or where or how it shall be taken from the land. It simply provides in these words, the party of the first part “ has leased to the parties of the second part all the coal and minerals .underlying ” the premises in question. Then follows in the contract “in consideration of the above ” the rent stipulated for it to be paid. Without anything further in the lease it is probable that a covenant on the part of the party of the first part would be implied, giving the lessee the right to occupy so much of the land as was necessary to take the coal from under the ground, hut certainly he would not be compelled to go upon the land at all if he could get the coal without. All that follows in this lease after the granting clause above, is to give the appellees the privilege to open the mine on the land and carrying on the mining from the surface, using so much of the land as necessary for such purpose; but there is no covenant on the part of the lessee agreeing to avail himself of such privilege. The royalty for the coal is the only thing that appellant can be concerned about; when he has received that the lease as to him is satisfied so far as the covenant in question is concerned. There now only remains the question of the matter of fact as to whether or not the appellees were proceeding to open up the coal mine within a reasonable time. The judge in the court below trying the case in place of the jury, by agreement of the parties, found that the appellees were using due diligence in that regard. Unless we can see that the court found manifestly against the weight of the evidence this court has no power to disturb it. After a careful review of the evidence we can not find that it has. We are satisfied that the evidence supports the finding of the court. All the circumstances of the case had to be considered, such as 'the relative cost of the two methods of obtaining the coal, the time required to reach it, the convenience of obtaining and marketing it after it was received, the interests of appellees as well as the appellant in the premises. If a more definite time for the opening of the mine had been desired to be fixed it should have been provided for in the contract. In determining the matter of forfeiture the court below should, and no doubt did, take into consideration the law which holds that forfeitures are not favored, in fact are abhorred, and that a case to justify a forfeiture must be clear. We feel satisfied the court did not err in its finding of the fact in that particular.

It will appear from what has been said in this opinion as to the proper construction of the contract that the court did not err in its refusal and modification of appellant’s proposition of law asked to be held. The ruling of the court in that par-ti calar was correct. We find no error in the record and therefore the j udgment is affirmed.

Judgment affirmed.