Bluestone Coal Co. v. Petitioner

Decision Date22 November 1898
Citation38 W.Va. 297
CourtWest Virginia Supreme Court
PartiesBluestone Coal Co. v. Bell et al.
1. Lease.

Where a lease is executed to a party of all coal, timber and mineral privileges on a certain tract of land, for the term of ninety nine years thence ensuing, the lessee agreeing to pay ten cents per ton for the coal mined and shipped therefrom, and for all such timber as said lessee may think merchantable, which may be cut, shipped, sawed or moved from said leased premises, fifty cents per one thousand square feel; of lumber of inch thickness, and a proportionate sum for oilier thicknesses, or twenty five cents per tree, at the discretion of said lessees or their assigns, no time being fixed for the commencement of operations, the lessor has a right to presume that said operations will be commenced in a reasonable time.

2. L ease Laches.

If nothing has been done under said contract for the period of seventeen years from the date of the contract, the lessor has a right to presume the contract has been abandoned, and said lessee or 1 lis assigns can not, after having been guilty of such laches, restrain said lessor from cutting and using the timber on said land by enjoining him from cutting and removing the same.

3. Lease Rescission-of Contract.

Where it is mack apparent that said lease was entered into under a mutual mistake as to the existence of a workable vein of coal in said land, and that said timber contract was induced by the belief that such coal did so exist, and to aid the lessee in his mining operations, said contract should be rescinded, not only as to the coal, but as to the timber.

4. LEASe Laches specific Perfobmance.

In order that a party may have specific performance of a con- tract, he must not be in default, but must show himself to have been ready, eager, prompt and desirous of maintaining his rights. The rule of laches is more strictly applied in cases of this character than in ordinary suits for accounts, etc.

A. C. Davidson and Okey Johnson for appellant:

I. Chancery has no jurisdiction of this case. 7 W. Va. 223;

20 W. Va. 175.

II. The claim of the plaintiff is without equity 1 Lev. 111.

III. The lease was procured by false and, fraudulent misrepresentations. 67 Am. Dee. 675; 77 Am. Dec. 687; 19 W. Va. 438; 32 Gratt. 312; 77 Va. 540; 78 Va. 65; 83 Va. 397; 5 Am. St. Rep. 285 n.

Plaintiff can not claim to be an innocent purchaser. 62 Am. Dee. 402; 65 Am. Dec. 314; 15 Or. 385; 32 Am. Dec. 740; 55 Am. Dec. 147; 5i Am. Dec. 675; 8to. Eq. PI. §§ 54, 28, 806, 852, etseq.

IV. If not fraud, there was a mutual mistake. 1 5 A m. & Eng. Ency. L. 628, et saq

V. The lease was abandoned, by plaintiff and those under whom

he claimed. 40 Am. Dec. 464; 88 Va. 409; 83 Va. 547.

VI. The lease was given on condition that it should, be void, if R. R. was not built in fee years. 84 W. Va. 397.

J. S. Clark and A. W. Reynolds for appellee cited 2 Pom. Eg. Juris. § 855; 1 Sto. Eg. Juris. (9th Ed.) § 150; 24 W. Va. 741.

English, President:

On the 28th day of March, 1872, David Bell of Mercer county entered into a written agreement with Eli Bailey, Harrison W. Straley, David E. Johnston and Isaiah Bee, whereby he demised and leased unto them their personal representatives and assigns all coal, timber and mineral rights and privileges whatsoever contained on, in and beneath the surface of all and every part, portion and acre of his, the said David Bell's, farm-lands, ground, property, and possessions, lying and being in the county of Mercer, W. Va., on the waters of the Bluestone, adjoining James Bell, Green Belcher, and Calfies and others, and containing one hundred and fifty acres, be the same more or less, to have and to hold the same from the date of said agreement for the period of ninety nine years thence ensuing; and the said Bailey, Straley, Johnston and l>ee, their personal representatives and assigns, agreed to well and truly pay or cause to be paid to the said David Bell, the lessor thereof, during the said term, period and space mentioned, for and in consideration of said demise, a rent often cents per ton of two thousand two hundred and forty pounds for each and every ton of coal and minerals mined and shipped therefrom; and, for all such timber as the lessees might think merchantable, they agreed to pay or cause to be paid to the said David Bell, his personal representatives or assigns, when the same was shipped, cut. sawed or moved from said leased premises, at the rate of fifty cents per one thousand square feet of lumber of inch thickness, or a proportionate sum for other thicknesses, or twenty tive cents per tree, at the discretion of the lessees, their personal repsentatives, etc.; and the said Bailey, Straley, Johnston and Bee, their personal representatives, successors and assigns, might and should have and enjoy full and free access, ingress and egress into or beneath and over said lands for the purpose of opening, mining and shipping the coal and other minerals thereon and therein, and for the cutting, sawing and removing lumber, and to build and erect the necessary buildings and machinery to operate and work the same, with undisturbed right of way lor all necessary roadways to and from their or his said mines, timbers and works; and the further consideration of one dollar to him in hand paid by the said Bailey, Straley, Johnston and Bee, the receipt whereof was thereby acknowledged by the said David Bell, the same to be binding upon his heirs, administrators, successors and assigns, which agreement was acknowledged by the parties thereto, and was admitted to record in the recorder's office of Mercer county on the 23d day of September, 1872.

By successive transfers at different dates, the said lease came into the hands of the Bluestone Coal Company, the appellee, on the 30th day of June, 1884, and some time in the year 1889 said Bluestone Coal Company filed its bill in the Circuit Court of Mercer county against said David Bell and Ralph Strader, setting forth therein the terms of said agreement, and the various transfers thereof, and alleging that under said lease it had the exclusive privilege of cutting, manufacturing, and using the timber on the said land during the said term of ninety nine years, and that said David Bell and those claiming under him had nothing whatever to do with the timber growing upon said leased premises, and had no more right to interfere with the same in any manner whatever, than they would have, if the plaintiff was the absolute owner of the said leased premises in fee simple, until after the said period of ninety nine years.

Said plaintiff further alleged that the said David Bell had entered into some sort of an arrangement with the defendant Shrader, under which they were cutting, manufacturing and destroying the timber upon the said leased premises, and that the said timber was not being cut, manufactured and destroyed as aforesaid for farming and building purposes on the said leased premises; that it was the owner of a large area of coal lands in the immediate vicinity of the said leased tract of land and premises, and was then extensively engaged in mining coal from the said lands; that, in order to enable it to carry on its said mining operations, it was necessary to use in the said mines a large amount of timber; that the timber in the vicinity of its said mines rapidly being used up, and that, in order to be able to continue its business of mining, it will be obliged to continue the use of large quantities of timber, and that, in order to meet the said necessity for timber, it was of great importance to it that the timber on said leased premises should be preserved to meet the future demands aforesaid for timber; that, if the said Bell was permitted to cut, manufacture and destroy the timber from said leased premises, and plaintiff was forced to resort to its action for damages against said Bell, the present market value of the timber would be nothing to compare with the special value of the said timber to the plaintiff for the purposes aforesaid; that the value of said timber to the plaintiff was many times its present market value; and that, if the defendants Were permitted to cut, manufacture and destroy the said timber, it would be compelled in the future to supply the place of the said timber by buying and shipping timber from a great distance at ruinous freight rates, and that it would be irreparably damaged thereby.

And plaintiff charged upon information and belief that, unless the defendants were restrained by a court of equity from so doing, they would cut, manufacture, and destroy all the timber upon the said leased premises, and it would suffer irreparable damage thereby; and plaintiff prayed that said David Bell and Ralph Shrader, and all other persons, their employes, servants, agents etc., be restrained by injunction from cutting, manufacturing or in any manner interfering with or destroying the timber on the said leased premises during the said term of ninety nine years, and for general relief.

This bill was sworn to on the 27th day of June, 1889, and an injunction was awarded on the 1st day of July, 1889, by the judge of the said Circuit Court in vacation, restraining said Ralph Shrader and David Bell their agents and servants from cutting sawing or removing from the one hundred and fifty acres of laud, in the bill and exhibit A described, the timber growing thereon except for farming and building purposes needed by said David Bell personally on said land, until the further order of said Circuit Court, or a judge in vacation.

On the 18th day of November, 1889, the defendant David Bell demurred to the plaintiff's bill and also filed his answer, which answer was replied to generally. In his answer the said David Bell admitted the execution of the paper exhibited with plaintiff's bill, which he avers was miscalled a lease, and alleges that in fact said paper, though such in form, was not in...

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