Austin v. Huntsville Coal & Mining Co.

• Decision Date: 31 October 1880
• Parties: AUSTIN, Appellant, v. THE HUNTSVILLE COAL & MINING COMPANY.
• Court: Missouri Supreme Court

72 Mo. 535

AUSTIN, Appellant,

v.THE HUNTSVILLE COAL & MINING COMPANY.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Chariton Circuit Court.--HON. G. D. BURGESS, Judge.

REVERSED.

This was an action of trespass to recover treble damages for mining and taking coal from under plaintiff's land. The facts were as follows: On the 27th day of February, 1871, the plaintiff executed an instrument leasing and conveying all the coal under his land to the North Missouri Coal and Mining Company, for a period of twenty years. This instrument is set out in full in the opinion. This company never entered upon the land or did any work under the contract, and failing to pay the stipulated rent, plaintiff sued and obtained judgment for the full amount to become due for the whole term as specified in the contract, but the company proving to be insolvent, the judgment was never satisfied. In the year 1875 the defendant, the Huntsville Coal & Mining Company, sunk a shaft upon land adjoining plaintiff's, and in the course of its operations took out large quantities of coal from under plaintiff's land. This suit being brought for the trespass, the defendant, claiming that the North Missouri Coal & Mining Company was, by virtue of the foregoing contract, owner of the coal, settled with that company by paying $50 and taking a receipt in full, and then pleaded this settlement in bar of plaintiff's claim. There was a trial, resulting in a judgment for defendant, from which plaintiff appealed.

Chas. A. Winslow for appellant

1. The instrument executed by Austin and wife to the North Missouri Coal & Mining Company was a lease. The limitation to twenty years unalterably stamps the estate conveyed as one for years, with all its legal incidents, irrespective of the granting or descriptive clauses. It does not pass the title to the entire mineral in the ground. Bradley v. Phosphate Co., 1 Hughes C. C. 72; Johnstown I. Co. v. Cambria I. Co., 32 Pa. St. 241; Funk v. Haldeman, 53 Pa. St. 229; Grubb v. Bayard, 2 Wall. Jr. 81; Knight v. Coal & I. Co., 47 Ind. 105. It passes only the right to the possession and use of the land for mining purposes during the continuance of the term. 1 Washburn Real Prop., (4 Ed.) 436; 4 Kent Com., (11 Ed.) 92; Chase's Blackstone, 322, 325; 1 Greenl. Cruise, 243.

2. The North Missouri Coal & Mining Company, by the execution of the lease, acquired merely what is known in the law as the interesse termini; (1 Wash. Real Prop., (4 Ed.) 442; 4 Kent Com., (11 Ed.) 106; Taylor Land. and Ten., (6 Ed.) 11; 1 Platt Leases, 22; 1 Cooley's Blackstone, 425; Chase's Blackstone, 326; 5 Bac. Abridg., (Bouvier) 631; 1 Greenl. Cruise, 243; Smith Land. and Ten., 45;) and never having gone into possession, had no such interest in the coal as would authorize it to settle with defendant for the trespass committed thereon. Lutwich v. Mitton, Cro. Jac. 604.

3. The damage shown by the record was a permanent injury to the freehold, and thus a damage to plaintiff's reversion, for which he may recover, even though a right of action might exist in the lessee for the injury to the possession. There was no entry by the lessee, the term has long since been abandoned, and Austin's damages go to the entire extent of the coal taken. George v. Fisk, 32 N. H. 32; Wood v. Griffin, 46 N. H. 230; Parker v. Shackelford, 61 Mo. 68; Lewis v. Branthwaite, 2 Barn. & Adolph. 437.

4. The recovery of judgment by plaintiff against the North Missouri Company for rents is no bar to this action. It did not convert the rents into purchase money. The lease itself declares these rents to be a personal debt, and provides that after forfeiture they “may be collected as any other debt.” These provisions are in fact liquidated damages for a forfeiture or abandonment of the lease.

5. As to the measure of damages, see Martin v. Porter, 5 M. & W. 351; Morgan v. Powell, 43 Eng. Com. Law 73; s. c., 3 Q. B. 278; Maye v. Tappan, 23 Cal. 306; Barton Coal Co. v. Cox, 39 Md. 1. Robertson v. Jones, 71 Ill. 405; McLean Coal Co. v. Long, 81 Ill. 359; 2 Waterman on Tresp., p. 540, § 1096.

Martin & Priest also for appellant.

1. Plaintiff, being in possession, was the only person entitled to sue for the trespass. Fitch v. Gosser, 54 Mo. 267; Cochran v. Whitesides, 34 Mo. 417; Reed v. Price, 30 Mo. 442; Pope v. Cordell, 47 Mo. 251; Fuhr v. Dean, 26 Mo. 116; Blanchard & Weeks on Mines, 189; Rogers v. Cooney, 7 Nev. 213.

2. Plaintiff was in possession and the rent unpaid; hence, under the statute of landlord and tenant the lease was forfeited. Wag. Stat., p. 882, § 33. As to what is a lease, see Boone v. Stover, 66 Mo. 434; Hamilton v. Wright, 28 Mo. 199; Dark v. Johnston, 55 Pa. St. 164; s. c., 6 Am. L. Reg. (N. S.) 543; Washburn's Real Prop., (4 Ed.) 292 to 297; Sennett v. Bucher, 3 Pa. 392. Then if it be a lease and the rents unpaid and plaintiff in possession, it was forfeited, and the North Missouri Coal & Mining Company had no rights in the coal by which it could settle the damages. But if the instrument be a license, which plaintiff claims it is, (Bainbridge on Mines, p. 261 to 275, inclusive,) then the North Missouri Coal & Mining Company never had any right or title to any of the coal, nor could have none until the coal was severed from the freehold.

John F. Williams and Thos. B. Reed for respondent.

1. The grant of Austin to the North Missouri Company was a sale of the coal, whereby he divested himself of all interest in it. It was no lease. There is no provision for forfeiture. The monthly payments are absolute--not depending on the value of the mining operations. The coal is conveyed absolutely, without qualification or condition; and the time given to take it away is twenty years. Gowan v. Christie, L. R., 2 Scotch App. 284; s. c., 5 Eng. (Moak) 123; Massot v. Moses, 3 So. Car. 168; s. c., 16 Am. 697; Caldwell v. Fulton, 31 Pa. St. 475; Funk v. Haldeman, 53 Pa. St. 229. The full power to take, without liability to account, was conferred upon the grantee, and that is equivalent to ownership itself, it being the highest attribute of ownership, and a gift of the one necessarily carries with it the other. Morris v. Palen, 1 Watts 389.

It was not a grant of a privilege or mere license to dig, hunt and search for coal, and dispose of what might be found in twenty years, but a grant of all the coal on and under said lands--a grant of the entire subject, without any restrictions or limitations; and the law is, that where the intent is to give the entire usufruct and power of disposal, as in this case, the legal title must be held to pass. Blanchard & Weeks on Mines, 31. Livery of seizin is no longer indispensable to the grant of a corporeal hereditament. Unopened mines may be conveyed, and the grantee takes more than a right issuing out of land or exercisable therein. He takes the mines themselves. Caldwell v. Fulton, 31 Pa. St. 475. Where there is a grant of all the coal, as in this case, it effects a severance of the right to the surface from the underlying coal. It makes them distinct corporeal hereditaments. Caldwell v. Copeland, 37 Pa. St. 427; Seaman v. Vawdrey, 16 Ves. 390.

2. The grantee alone can maintain trespass, because he is entitled to the full damage. Attersoll v. Stevens, 1 Taunt. 183; Blanchard & Weeks on Mines, 437; 37 Pa. St. 427; 5 Eng. (Moak) 123.

3. As to the measure of damages, see Forsyth v. Wells, 41 Pa. St. 291; Mueller v. St. L. & I. M. R. R. Co., 31 Mo. 262; Blanchard & Weeks on Mines, 633 to 636; Bainbridge on Mines, 570; Waters v. Stevenson, 13 Nev. 157; Kier v. Peterson, 41 Pa. St. 357.

SHERWOOD, C. J.

This action for damages for coal taken by defendant from under plaintiff's land, requires an examination into the nature and effect of an instrument in this form:

This agreement made and entered into this 27th day of February, 1871, by and between Jno. H. Austin and Mary J. Austin, his wife, parties of the first part, and the North Missouri Coal & Mining Company, parties of the second part, Witnesseth: That for and in consideration of $1 in hand paid, and the further consideration of $400 per annum, to be paid in monthly payments of $33.33, on the 20th day of each and every month, the said parties of the first part do hereby lease and convey, for themselves, their heirs and assigns, for the term of twenty years from the date hereof, to the party of the second part, their heirs and assigns, all the coal on or under the following land, to-wit: (describing the same;) also 100 feet of the surface from the center of the North Missouri Railroad, extending the whole length of the twenty acres touching the road, for the erection of such buildings as may be necessary for the safe and economical working of said coal, and such right of way as may be necessary for the successful mining and removing of said coal. And said parties of the first part hereby bind themselves not to grant a right of way for the purpose of hauling coal from any other mines than those established by said company. And the parties of the first part hereby agree for themselves, their heirs and assigns, that the said party of the second part shall have the right to take down and remove all improvements, buildings or machinery put upon said land by them as they may see fit. And the said party of the second part, for themselves, their heirs and assigns, are hereby bound that the said rent shall be paid punctually, on the 20th day of each month hereafter, at Huntsville. And if, after due notice has been given at the office of said company in Randolph county, said monthly rent shall remain unpaid (without special agreement) for the space of two months, then said party of the second part shall forfeit and pay to the said party of the first part one year's rent; and if said rent shall remain unpaid for another term of two months, then after written notice of thirty days, the rent for the full term of this lease shall become due and payable, and the same may be collected as any other debt; but...