Bache, Recvr. v. Central Coal & Coke Company

• Decision Date: 12 February 1917
• Docket Number: 166
• Citation: 192 S.W. 225,127 Ark. 397
• Parties: BACHE, RECVR. v. CENTRAL COAL & COKE COMPANY
• Court: Arkansas Supreme Court

192 S.W. 225

127 Ark. 397

BACHE, RECVR. v. CENTRAL COAL & COKE COMPANY

No. 166

Supreme Court of Arkansas

February 12, 1917

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; affirmed.

Judgment affirmed.

James B. McDonough, for appellant.

1. Plaintiff had no right to tear down and remove the tipple. Jones Landl. & Ten., § 590, 103 Ind. 203. The provisions of the lease as to removal are absolutely controlling. Jones Landl. & Ten., § 713; 41 Conn. 471; 23 Vt. 222; 50 A 1092; 48 Id. 38. A tipple is machinery like a railroad track. 86 N.E. 837; 81 N.E. 1103; 64 S.E. 65. It does not come within the definition of "machinery." 85 F. 218; 11 So. 41; 81 F. 289; 21 So. 167.

2. Appellee had no right to remove machinery after the lease expired. Jones on Landl. & Ten., §§ 711-716; 40 Ind. 142; 153 N.Y.S. 728; 66 So. 54.

3. The court erred in its instructions. They must comply with the pleadings and issues. 82 Ark. 562; 84 Id. 67; 85 Id. 425; 87 Id. 243; 70 N.W. 1110. Whether the tipple was machinery or not was a question of law for the court. Evidence to show the intention with which the tipple was placed on the premises is immaterial and inadmissible. Jones on Landl. & Ten., § 713; 2 Pet. 137; 70 N.W. 1110.

4. There was error in admitting testimony. Boring's payment of taxes and conversations of Boring and Shaleen were all not admissible.

Oglesby Cravens & Oglesby, for appellee.

1. The violation of the lease was submitted to the jury under proper instructions and their verdict is final. They found that the tipple was machinery or trade fixture and removable.

2. It was clearly the intention of both parties to the lease that the tipple was a part of the mining equipment and therefore removable. 56 Ark. 55; 63 Id. 625; 73 Id 227; 53 Id. 526. It was a trade fixture. 95 Ark. 268; Snyder on Mines, § 1311; 163 F. 624; 33 A. 95; 101 A.D. 22; 12 Allen, 77; 83 A. 269; 52 Am. 817; 44 A. 1024; 14 L. R. A. (N. S.) 439; 98 Ark. 597; 2 Sandf. (N. Y.) 202; 161 U.S. 316; 12 Allen (Mass.) 75; 101 A.D. 22.

3. The law does not require the lessee to remove trade fixtures and machinery before the expiration of the lease, unless so provided. 2 Snyder on Mines, § 1311; 21 So. 322; 62 P. 342; 30 S.W. 907; 33 A. 95. The lessee has a reasonable time, after expiration of the lease, to remove. Cases supra.

4. The intention was a question for the jury. 70 Ark. 230; 72 Id. 500; 53 Id. 526.

5. Appellee was not liable for negligence producing "squeezes" before it purchased the property, 24 Cyc. 982. There is no reversible error in the instructions. As a whole, taken together, they state the law and are supported by the testimony.

6. No improper or incompetent testimony was admitted. The trial was free from prejudicial error.

OPINION

SMITH, J.

This is a suit in replevin brought by the Central Coal & Coke Company against John Shaleen, and other defendants, who are the appellants here. The Suit was brought to recover possession of certain property belonging to a mine which was owned by the Hartford Coal Company, which mine was by that company leased to the plaintiff Central Coal & Coke Company, hereinafter referred to as the appellee. The Hartford Coal Company, a corporation, leased certain lands to E. W. Hoffman for coal mining purposes. Hoffman assigned the lease to the Hoffman Coal Company, which later failed, and, by proper conveyances, appellee became the owner of all the interest of the Hoffman Coal Company in said lease. The lease, by its terms, expired on November 1, 1914, but, before its expiration, the Hartford Coal Company was placed in the hands of a receiver by the order of the United State Court for the Western District of Arkansas. By agreement this lease was extended to December 10, 1914, and at midnight of that day one John Shaleen took possession of the property for the receiver and, in this manner, became a party to the litigation. He disclaimed any other interest.

At the time Shaleen took charge of the mine, appellee was engaged in removing the property which forms the subject matter of this litigation from the premises. Other property was removed which the receiver did not claim, but the answer filed by the receiver sets out a complete list of the property which he claimed as belonging to the Hartford Coal Company under the terms of the lease, and, although this list is a lengthy one, it does not embrace all the property described in the order of delivery. However, no disagreement has arisen as to the description of the property alleged to have been unlawfully detained. Appellee acquired the title of the original lessee to all of the improvements and equipment in and about the mine by a conveyance which expressly named and included the tipple, and it also acquired all rights of the original lessee, subject to the conditions of the original lease.

The fifth article of this lease contained the following recital: 5. It is agreed by the parties hereto that at the expiration of this lease, whether at the expiration of the regular term thereof or by agreement of the parties, the party of the second part may remove from the said above described tract of land all machinery, pit cars, mine rails and pipe as may have been placed therein by him provided the party of the second part has carried out the terms and covenants of this contract, and all other property on said tract of land at the expiration of the lease aforesaid shall belong to and revert to the party of the first part.

Appellants insist that appellee has no right to the possession of the personal property involved in this litigation for the reasons, that it was not removed from the mine prior to the expiration of the lease, and because the right to remove was made contingent upon the performance of the conditions of the contract, and it is said that these conditions were not performed by appellee and there was, therefore, no right of removal. As to the tipple, it is said there was no right to remove it even prior to the expiration of this lease, and even though the condition of the lease had been performed for the reason that the tipple became, and was, a fixture which under the contract and under the law the original lessee himself would have had no right to remove.

It is said that appellee failed to comply with the provisions of the contract in that it permitted the slopes and room to squeeze down, and permitted water to accumulate therein, and that it destroyed and removed the tipple used in the operation of the mine, and it is argued that by reason of these alleged breaches of the contract appellee forfeited the right to remove the property herein involved, this right being conditioned upon a compliance with the terms of the contract.

The tipple was removed prior to the expiration of the contract, and the right so to do presents the principal question in the case.

By instruction numbered 4, requested by appellants, the jury was told that, if appellee failed to prevent squeezing in the mine through negligence, and if it negligently permitted water to accumulate in the mine, the jury should find for appellants whatever amount the said mine was damaged, and if appellee so damaged said mine, appellee was not entitled to the possession of the property sued for until said damages are paid.

The evidence is conflicting as to the extent and cause of the squeezing and of the accumulation of water; but as the jury has found under the above instruction that appellee is entitled to the possession of the property, we must assume that there was a preliminary finding that appellee had not breached its contract in the particulars alleged.

At the request of appellee, and over the objection and exceptions of appellants, the jury were told that, if they believed that the tipple was used in connection with the machinery for the purpose of mining coal, and that it was placed upon the leased premises in connection with the hoisting engines, and other machinery and appliances, for the purpose of mining coal, and for the sole use and benefit of appellee in conducting such mining operations, with the intention of removing same, and not with the intention that it was to remain upon the leased premises as a part of the freehold, but should be the property of appellee, and was removed before the expiration of the lease, such removal was not a violation of the lease contract.

This instruction is challenged upon two grounds. The first is that the right to remove depends upon the terms of the contract of lease; and it is argued that the court should have construed this lease as giving no right of removal. It is also said that, independently of the contract, the tipple is neither machinery nor a trade fixture, but was a part of the freehold.

A witness gave the following description of the tipple. The tipple was constructed by plaintiff of native pine, laid upon a rest, about 30 feet high and 300 or 400 feet long; that you can not remove coal from a mine without a tipple; the tipple is an essential part of the machinery, and connected with it; the machinery on the tipple consists of a shive wheel and bull wheel, which the rope goes around and connects with the cars, the scales and the machines for separating the coal; this machinery is held in place by the tipple, and it is all one connecting whole which is necessary in the operation of a coal mine; the engine and hoister is connected with the tipple by a rope which goes around the bull wheel on the tipple and connects the cars; that it was constructed so that it could be removed and it could be placed on rollers and moved away.

The testimony shows the value of the tipple to have been anywhere from twenty-three hundred to four thousand dollars.

It was shown on behalf of appellee that the tipple was so...