Beulah Coal Mining Co. v. Heihn

• Decision Date: 09 December 1920
• Citation: 180 N.W. 787,46 N.D. 646
• Parties: BEULAH COAL MINING CO. v. HEIHN et ux.
• Court: North Dakota Supreme Court

46 N.D. 646

180 N.W. 787

BEULAH COAL MINING CO.

v.HEIHN et ux.

Supreme Court of North Dakota.

Dec. 9, 1920.

Syllabus by the Court.

A mining right may be separated from the surface, which may be held by one person and the mining right by another, and the ownership of mines, whether opened or unopened, may exist distinct from the ownership of the surface.

The severance of a mine and the surface of lands may be accomplished by a conveyance of the mines and minerals, or by a conveyance of the land with a reservation or exception as to the mines and minerals.

After severance, the surface and minerals are held by separate and distinct titles in severalty, and each is a freehold estate of inheritance.

In this case the grantor inserted in the granting clause in the deed the following provision: “Excepting and reserving unto the grantor, its successors and assigns, forever, all coal and iron upon or in said land, and also the use of such surface as may be necessary for exploring for and mining or otherwise extracting and carrying away the same.” It is held that, in absence of statutory provisions to the contrary, this provision is not void for uncertainty or indefiniteness, and that it excepted the coal and iron deposits from the operation of the deed, and that the fee title thereto was retained in the grantor.

Where the grantor is not seized of property which his deed purports to convey, the covenant of seisin is broken as soon as the deed is made and delivered, and an immediate right of action accrues to the grantee for its breach.

If there is merely a technical breach of the covenant, the grantee is entitled to merely nominal damages; but in cases where the grantor at the time of the execution and delivery of the deed is not in fact or in law seised of the premises to which the covenant relates, a cause of action for substantial damages accrues immediately upon the delivery of the deed.

Under section 5446, Comp. Laws 1913, a cause of action for the breach of a covenant of seisin is assignable.

In cases where the conveyance passes nothing to the grantee, the measure of damages for the breach of the covenant of seisin is prima facie the consideration paid by the grantee and interest on such sum.

Where an action for breach of a covenant of seisin is brought by an assignee of the grantee, and it is shown that the assignee paid to his assignor the same consideration which the assignor paid to his grantor, the assignee is entitled to recover the same damages that the grantee might have recovered if he had maintained the action.

Appeal from District Court, Mercer County; Hanley, Judge.

Action by the Beulah Coal Mining Company against Karl Heihn, Jr., and wife. Judgment for defendants on a directed verdict, and plaintiff appeals. Reversed and remanded.

Robinson, J., dissenting.Newton, Dullam & Young, of Bismarck, for appellant.

Edward S. Allen and Theodore Keffel, both of Bismarck, for respondents.

CHRISTIANSON, C. J.

This is an action to recover damages for breach of covenants of seisin, right to convey, quiet enjoyment, and warranty. The case was tried to a jury, and resulted in a directed verdict in faver of the defendants, and plaintiff has appealed from the judgment entered upon the verdict.

The question presented on this appeal is whether the trial court erred in directing a verdict in defendants' favor. A determination of that question required an examination of the evidence.

The undisputed evidence shows that on August 31, 1910, the Northwestern Improvement Company, the then owner of certain lands in section 7, township 144, range 87, in Mercer county, in this state, conveyed the same to Karl Heihn, Sr., by a warranty deed, the granting clause of which contained the following reservation:

“Excepting and reserving unto the grantor, its successors and assigns, forever, all coal and iron upon or in said land, and also the use of such surface as may be necessary for exploring for and mining or otherwise extracting and carrying away the same.”

On June 6, 1914, Karl Heihn, Sr., conveyed the same lands, by a warranty deed containing no reservation or exception whatever, to the defendant Karl Heihn, Jr. On February 5, 1918, the defendants Karl Heihn, Jr., and Rosina Heihn, his wife, conveyed, by a deed containing the usual covenants of seisin, right to convey, quiet enjoyment, and warranty, to the Beulah Coal & Mining Company, “its successors and assigns, forever, all these veins and parcels of lands lying and being in the county of Mercer and state of North Dakota, and described as follows, to wit: All those seams, strata, deposits, and mines of coal lying and being within and under” the same lands originally conveyed by the Northwestern Improvement Company to Karl Heihn, Sr.

The deed also contained a covenant that said Karl Heihn, Jr., and Rosina Heihn, his wife, did-

“grant bargain, sell, and convey unto the party of the second part (Beulah Coal & Mining Company), its successors and assigns, the right to enter into and under said lands, and to take and employ all usual, necessary, proper, or convenient means for working, mining, excavating, making merchantable and removing the said deposits of coal from under, adjacent, coterminous, and neighboring lands, without entering upon the surface of the lands hereinbefore described, and to make, build, construct, and maintain in, through, and under the said lands all structures, machinery, roads, ways, excavations, air shafts, drains, drainways, openings, and conveniences necessary for the mining and removal of said deposits of coal from said land, and from adjacent, coterminous, and neighboring lands, and should any depression, subsidence, damage, or injury whatsoever be caused or occasioned to the surface of said lands by reason of the mining operations thereunder, the grantee, its successors and assigns, shall make compensation to the grantors, their heirs, executors, administrators, and assigns, therefor, in the amount of the damage or injury so caused or occasioned not exceeding however the sum of Fifty Dollars ($50.00) an acre, the grantors having reserved to themselves the title to the surface of said lands.”

This suit involves and is predicated upon a breach of the covenants contained in the following paragraph of the deed:

“And the said Karl Heihn, Jr., and Rosina Heihn, his wife, parties of the first part, for themselves, their heirs, executors, administrators, and assigns, do covenant with the party of the second part, its successors and assigns, that they are well seised in fee of the land and premises aforesaid, and have good right to sell and convey the same in manner and form aforesaid, and that the same are free from all incumbrances whatsoever, and the above bargained and granted land and premises in the quiet and peaceable possession of said party of the second part, its successors and assigns, against all persons lawfully claiming or to claim the whole or any part thereof, the said parties of the first part will warrant and defend.”

On July 31, 1918, the Beulah Coal & Mining Company conveyed all its interest, right, and title in and to said property to the plaintiff (Beulah Coal Mining Company) by deed of conveyance. At the same time the former company executed and delivered to the latter company a written assignment of all claims, demands, and causes of action which it had against the defendants by reason of a breach of any of the covenants contained in the deed executed and delivered by the defendants to the Beulah Coal & Mining Company. The evidence shows that the Beulah Coal & Mining Company, at the time it purchased the coal interests from the defendants, paid a consideration of ten dollars per acre therefor. The Beulah Coal Mining Company was organized to take over the properties and business of the Beulah Coal & Mining Company; and all the properties of that company were transferred to it for the same consideration which that company paid therefor.

During the course of the trial plaintiff offered to reconvey to the defendants the property involved in this suit upon the repayment to it of the consideration which the defendants received therefor when they conveyed it to the Beulah Coal & Mining Company.

The question is: Do these facts establish a prima facie case in favor of the defendant for substantial damages? For appellant disclaims any desire to have the judgment disturbed if it is entitled to merely nominal damages.

Defendant contends:

(1) That the reservation or exception in the deed is void, and that hence defendants had a good title to the property they conveyed, and there was no breach of the covenants of the deed.

(2) That, even though the reservation was valid, and defendants in fact had no title to the property they conveyed, nevertheless there is no evidence showing that plaintiff or its assignor has sustained any damages. These propositions will be considered in the order stated.

1. Under the first contention it is argued:

(a) That the clause in the deed given by the Northwestern Improvement Company to Karl Heihn, Sr., which purported to except all coal and iron deposits and reserve title thereto in the grantor, was ineffectual, and did not prevent the title to such deposits from vesting in the grantee named in the deed for the reason that the nature, length, width, and thickness of the mineral deposits sought to be reserved were not stated as required by section 5518, C. L. 1913.

(b) That, even though section 5518, supra, be deemed inapplicable to the deed in question, the clause is, under general rules of law applicable to such clauses, void for uncertainty and indefiniteness.

In our opinion both contentions are untenable. The deed in question was executed and delivered August 31, 1910, and recorded in the office of the register of deeds of Mercer county on November 21, 1910. The statute invoked by defendants was not in existence at that time. That statute was approved and became effective March 17, 1911. See ...