Watterson v. Reynolds

Mr. Justice Green

delivered the opinion of the court,

We are of opinion that the court below gave a correct construction to the lease between Watterson and McCulloch, and the judgment must therefore be affirmed. The lease is somewhat peculiar both in its character and its phraseology, but we do not think it' difficult of interpretation. In terms, it is a grant of a tract of land, by description, containing forty-six acres, more or less, the grantee to take possession “as soon as he commences to build a furnace at the mouth of Redbank creek, and hold the same, and enjoy and use all the rights and privileges of real ownership as in fee simple so long as said McCulloch, his heirs or assigns, may carry on a furnace at the mouth of Redbank creek, in said township of Madison ; except that said McCulloch is to pay the taxes on said tract of land, and to pay me twenty cents per ton for each ton of twenty-two hundred and forty pounds of ore he may dig and haul away .from said tract of land.” No right to dig or take away either limestone or iron ore is given in express words. The right to take ore is assumed to exist in the remainder of the instrument, but the only language previously used which can suffice to confer that right is equally efficacious to confer also the right to take limestone. The land was manifestly leased for the very purpose of being used for the erection and maintenance of a furnace. The lessee can only take possession when he commences to build a furnace; he can hold it so long as he continues to carry on a furnace, and the same privilege is extended to his heirs and assigns indefinitely, and it is to be terminated when the property is formally abandoned as a furnace property. The consideration to be paid by the lessee, for whatever rights and privileges are conferred by the lease is, the erection and continued maintenance of a furnace on the premises, the payment of the taxes on the land, and the payment of a royalty of twenty cents per ton on every ton of twenty-two hundred and forty pounds of ore dug and hauled away from the tract. These constitute the full equivalent for every right conferred by the lease. There is no obligation to pay for any limestone that may be taken. Does the right to take limestone exist ? If there are proper words giving the right it is no reply to argue against its existence that there is no provision to pay for it since it may be paid for in the other considerations to move from the lessee.

Now, the words are that the lessee is “ to hold the same (that is, the tract of land,) and enjoy and use all the rights and privileges of real ownership as in fee simple,” so long as he may carry on a furnace on the premises. These words are in the lease for some purpose. We have no right to overlook or reject them or to refuse them their plain natural meaning. It is certainly one of the “rights and privileges of real ownership as in fee simple ” to take limestone from land wherever it is found. Moreover, limestone is a necessary article to be used in the manufacture of pig iron, and it may well be intended that the parties who were contracting for the erection and maintenance of a furnace on the demised premises, had it in contemplation that limestone as well as iron ore should be taken and used in carrying on the furnace. We are of opinion that the words of the lease include the right to take limestone from the premises for use in the furnace, and as there was no obligation to pay for it other than in the manner already indicated, there could be no recovery for its value in the manner proposed in this action. The court below were right in excluding the testimony offered and in their answers to the plaintiff’s first and third points.

Judgment affirmed.

Justice Gordon dissented.