Appeal of Alden

Mr. Justice Paxson

delivered the opinion of the court, May 3d 1880.

The above appeals are all from the same decree. They may properly be discussed in one opinion, and will be considered in the order above stated.

Auden’s Appeal, No. 102. The underlying question in this, as well as the other appeals, is the proper construction of the reservation in the deed from Peter Grubb, Jr., to Robert Coleman. In this appeal the particular question is whether the appellees in whom are now vested the rights reserved by the said Peter Grubb, Jr., in said deed, are entitled to a full supply of ore for a modern furnace with all the recent improvements of the hot blast, the use of anthracite coal for fuel, of steam-engine for power, and with three tuyeres instead of one, or whether they are to be restricted to sufficient ore for the charcoal furnace as it existed at the time of the reservation ? The question is important as it affects the parties for the reason that the modern furnace will make ten times as much iron as the old charcoal furnace with its cold blast admitted by a single tuyere, the uncertain power of water, and the certain blowing out of the furnace in the fall, to enable the men to chop wood and make charcoal in the winter.

The learned court below held, affirming the master, that the appellees were entitled to a supply of ore for a modern furnace; that they had a right to elect what furnace should be supplied, and that the right of election was not exhausted by its exercise upon a single occasion. In other words, they could change the furnace from time to time, as the exigencies of their business or their convenience might require. Both the master and the court below have so well vindicated their respective rulings upon this branch of the case that there remains little to add. We see no ambiguity in the reservation; nothing which extrinsic evidence is required, or would be even permitted to explain. Where such is the case no more unsafe rule could be adopted than to search for a meaning of the parties that is not doubtful, and to write into their agreements matters which they have left out. It would have been very easy for Peter -Grubb and Robert Coleman, when they contracted in 1786, to have placed a fixed limit upon this reservation. They were both iron-masters and men of intelligence, and knew, or must be presumed to have known, just what they were about. They could have limited the supply to a fixed number of tons, or knowing as they did the capacity of the furnaces of their day, they could have agreed that the annual consumption of one of them at that time should be the maximum beyond which the reservation should not go. It is no part of our duty to speculate as to why they did not limit the amount of ore by a fixed standard; it is enough for us to know that they have not done so, yet, if it were necessary, it would not be difficult to find excellent reasons why they adopted a shifting standard. We must assume that in contracting they mutually contemplated future improvements in the manufacture of iron, or else deny them average intelligence. Prior to 1785 a marked advance had been made in England. Then Smeaton’s cylindrical blowing machine had already supplanted the rude wooden bellows, worked by water-power here up to and later than 1786. While it is true that the steam-engine was not applied to driving blast in Pennsylvania until 1839, yet it had been known in England many years before, and was in practical successful operation prior to 1785. So as to the use of mineral coal as fuel for making iron. It was not introduced here until 1839, but in England it had been used in blast furnaces since 1750. It may be that the great abundance and cheapness of wood in this country delayed for some time the introduction of mineral coal for such uses.

The reservation was of sufficient ore for one furnace at all times thereafter for ever. This was a perpetual reservation, or at least for so long a time as the ore banks should remain unexhaustéd. This reserved to Peter Grubb, his heirs and assigns, a certain interest in the ore in common with the owners of the ore banks. At the time of the reservation other furnaces were being operated, in the same manner as the Berkshire furnace, and using the ore in substantially similar quantities. The ownership of the Cornwall ore banks had since that time become further subdivided by death and conveyances. Other furnaces have been constructed and all are being operated with the modern improvements, and are using a corresponding increased amount of ore. To allow them to thus increase the consumption, and yet to confine the heirs or grantees of Peter Grubb to the quantity consumed in the old charcoal furnace of 1786, would be a forced and arbitrary construction of the reservation, and instead of carrying out the probable intention of the parties would, in our opinion, be doing violence to any reasonable view of what they contemplated at the time. It is hut just to suppose they expected that Peter Grubb, his heirs and assigns, should operate this one furnace as other owners wore operating theirs. There was no essentia] diiference at the time of the reservation. Why should there be now ? It was manifestly the intention that the reservation should bo of a certain proportion of the ore. By allowing to the appellees the same improvements in the manufacture of iron as are enjoyed by the appellants this proportion can be maintained, and it can be done in no other way. These furnaces may be compared to so many candles, all lighted and consuming this ore at the same time. Peter Grubb’s candle burns no faster than the others, and while this is the case the appellants have no just cause of complaint. If the appellants may draw upon these ore banks without limit, with the use of all the modern improvements by moans of which the manufacture of iron is so rapidly multiplied, and yet hold the grantees of this reservation to the supply of the antiquated charcoal furnace, it is manifest the reservation itself is immensely diminished in value, and it is only a question of time, depending upon the extent of the ore banks, when it will be entirely defeated.

We need not pursue this branch of the case further. We are of opinion that the reservation gives the appellees the right to as much ore as will supply any one furnace to be selected by them, and that the right to select was not exhausted by its exercise in a single instance. This appeal is not sustained.

Ferguson’s Appeal, No. 109, July Term, 1878. — This was an appeal by the executors of William R. White, deceased. The learned court below held that under the reservation of said deed of May 9th 1786, from Grubb to Coleman, 1. That the appellants are only entitled to a supply of ore for one single furnace selected, and cannot, while such furnace is undergoing repairs, use it in another furnace; 2. That the appellants must use the ore in the furnace so selected, and have no right to sell the same, or any part thereof, and that for ore so used they were liable to account to the appellees. A decree was accordingly made against Nathaniel Ferguson and the estate of the said William R. White, that they pay to the appellees the sum of $912.06, for ore used in Robesonia furnace No. 1, from June 5th 1867 to June 25th 1867, and a further decree against the same parties of $32,773.55 for ore used in Robesonia furnace, No. 1, from March 13th 1878, to May 24th 1874. So far as the above decrees were for ore used in Robesonia furnace No. 1, while No. 2 was undergoing repairs, we think they are correct. Regarding the words in the reservation “ a sufficient supply of ore for any one furnace” as a measure of quantity, we must interpret them to mean so much ore, and no more, as a given furnace would use in the course of a year, taking into consideration the wear and tear, and the necessity of its going out of blast for repairs at stated periods. No furnace can continue in blast for ever; hence-when parties fix the capacity of a certain furnace as a measure of the quantity of ore, they must be presumed to have had in view the fact that every furnace must stop at times, not only for ordinary repairs, but for other accidents and contingencies to the business. The use of furnace No. 2 from time to time, pending repairs to No. 1, the selected furnace, was using more ore than any one furnace was capable of doing, and hence cannot be presumed to have been in the contemplation of the parties, as it certainly is not within the terms of the reservation. That portion of the decree, however, which charges the appellants with the ore used in Robesonia furnace No. 2 from December 31st 1873 to May 28th 1874 rests upon a different footing. During all of this last period, No. 1 was in repair, and could have been-put in blast. That this was not done was due to the belief of the appellants, as we gather from the offer of evidence rejected by the master, that they had a right to use No. 1 instead of No. 2. That they had no such right is manifest. If, however, there has been an honest mistake' here, the appellees have no right in equity to take advantage of it unless they can show they have been injured. They have not shown such injury. The appellants had the right to use the ore in No. 2; had they done so, the consumption of ore, according to the offer, would “ have been much larger than was consumed in No. 1.” It is true by using No. 1 for five months, it enabled the appellants to operate No. 2 just that much longer, without stopping for repairs, and to that extent, perhaps, the appellees may claim to have been injured. But this injury, if not ■within the rule de minimis, is capable of being defined in extent by the master, and may have been more than compensated by the lesser quantity of ore consumed by No. 1. The appellees must remember that they are appealing to the conscience of a chancellor, as well as seeking the enforcement of legal rights, and that before they can ask for a decree in their favor for this particular ore, they must show some equity which would make it unjust to withhold it. We are of opinion that the master ought to have heard and considered the evidence referred to in the seventh assignment of error, and to this extent we sustain this appeal. The right to sell ore will be considered in the next appeal.

Appeal of Nathaniel Ferguson et al., executors of William R. White, deceased, and of Sarah D. Robeson, executrix of Henry F. Robeson, deceased, No. 110, July Term 1878. — This appeal raises two questions distinct from those already discussed, viz., 1. The right of the appellants, or owners of the ore-right, to sell or dispose of the ore so-taken by them otherwise than in the supply of the selected furnace, and 2. On behalf of the estate of said Henry P. Robeson, the liability to interest on the amount charged as the value of the ore taken between November 6th 1861 and March 31st 1862.

Upon the question of the sales of ore there is an obscurity as to the facts both in the history of the case and in the report of the master. Nor is any additional light thrown upon this subject in the opinion of the court. The learned judge says.: “With regard to the ore sold by Robeson and Brooke, in 1855 and 1856, it does not appear from the master’s report under what circumstances that ore was sold ; whether it was surplus ore remaining unused at the furnace or ore sold directly from the banks. It is perhaps immaterial, for as the defendants had no right to mine ore for the purpose of sale, neither could they sell what was mined for the supply of their furnace.”

Wo do not assent to the broad proposition that the appellants had no right to sell ore under any circumstances. It is conceded they could not supply the elected furnace and at the same time sell additional ore from the banks. This would extend the reservation beyond its terms, and make it as broad as the grant itself. It would be using more ore than was requisite for the supply of one furnace. But the appellants claimed, and so aver in their answer, that a portion of the ore sold was to make up for the ores iised by them from other mines, and the schedules in their answers give the data upon which this claim is founded. If, as they assert, ores from other mines were mixed with the Cornwall ores, and so used in their furnace to improve the quality of the iron, they would have a right to sell a corresponding amount of Cornwall ore. To illustrate: If the selected furnace consumed ten thousand tons of ore in any one year, all of which the appellants were entitled to take under the reservation, and it was found that a better quality of iron could be obtained by the mixture of twenty per cent., say two thousand tons of other ore, they would have a right to exchange that number of tons of Cornwall ore for such purpose, or to sell the same and with the proceeds purchase the same quantity of other ores. This results from two causes : 1. The right to take a full supply for the selected furnace, and 2. Their right of dominion or absolute property in the thing taken. The reservation of the ore-right was not necessarily connected with the use of the furnace, except so far as it is necessary to measure the quantity. The appellants are under no obligation to operate the furnace which they may select; they are entitled to select a furnace, and to sell to the proprietor thereof a sufficient supply from the Cornwall ore hanks. They may not sell to different furnaces, nor more than a supply to the selected furnace, for that would exceed the reservation. But the ore when taken out under the reservation, and to the extent it authorizes, is as much the property of the appellants as the ore remaining in the banks is the property of the appellees. 'To impose such a restraint upon the use and alienation of property as is here claimed by the appellees would require the clearest language in the deed. Yet there is not a word in that instrument to justify such a claim. The appellants have an absolute right of property in the ore the moment it is taken out of the banks, subject to the single qualification that it must pass through -some one furnace to be selected by them for the purpose of measuring the quantity. It therefore becomes of the highest importance to know under what circumstances th,e ore in question was sold, and for this purpose the case must go back to the master. The master finds sales by Brooke and Robeson from the Cornwall ore banks of over six thousand tons. The answer avers the use by appellants of other ores at the Reading furnace of over, one thousand tons. To this extent, at least, they were entitled to sell Cornwall ore. The claim of the appellants to make up the deficiencies of former years is not sustained. They cannot take in one year what they might have taken the previous year, but neglected to do so. The right, if not exercised, or only partially exercised, for any one year, is gone with the expiration of that year.

We are unable to see any sufficient reason why interest should not be charged against appellants upon whatever is found against them for excess of ore. They have sold it and received the money. For the purpose of complete indemnity the interest is as essential as the value itself. This point does not need elaboration. To the extent indicated this appeal is sustained.

Appeal of Edward Brooke, et al., No. 111, July Term 1878; Appeal of William R. White, et al., No. 112, July Term 1878.— These appeals present but a single question not already disposed of. The appellants have interposed the Statute of Limitations. This bill was filed July 15 1856. The answer of Messrs. Robeson and Brooke was filed on the 15th of October of the same year. The former died March 8th 1860, the latter May I8th 1861. The appellants, the executor and executrix of said parties respectively, were not made parties to the bill until September 1867. This was more than six years after the death of their respective testators, and if the appellant had set up the statute by plea or answer when they were first brought in they would have had a stronger case. But they answered the amended bill in 1873, and did not suggest the bar of the statute. The record shows no step taken by the executors objecting to the revival of the suit on the ground of lapse of time. ■ It is too late to do so now’. These appeals are however sustained for other reasons sufficiently set forth in the other cases.

The question of jurisdiction alone remains. This is common to all the appeals. .A motion to quash was made upon this ground, and Grubb’s Appeal, 9 Norris 228, was cited in support of said motion. We need not extend this already protracted opinion by a discussion of this question. The distinction between Grubb’s Appeal and the case in hand is palpable. The motion is denied.

We have not considered it necessary to refer to the numerous authorities cited on either side. New of them have any bearing upon the case. Wo . have been led to our conclusions more from the terms of the reservation, and its surrounding circumstances, than from the authority of decided cases which arc not in point.

This cause came on to be heard, and was argued by counsel at the last term of this court held in the city of Philadelphia, whereupon, May 8d 1880, it is ordered and adjudged that the decree be affirmed as to Anne C. Alelen et al., appellants in No. 102, July Term 1878, and their appeal is dismissed as to them with costs, and that said decree be reversed as to Nathaniel Ferguson et al., appellants in No. 109, July Term 1878; Nathaniel Ferguson et al., appellants in No. 110, July Term 1878; Edward Brooke et al., appellants in No. Ill, July Term 1878, and William B. White et al., appellants in No. 112, July Term 1878, and that the record be remitted to the court below for further proceedings in accordance with the principles indicated in this opinion.

Justices Gordon and Trunkey dissented to the affirmance of Alden’s Appeal.