Bluestone Coal Co v. Bell

• Decision Date: 22 November 1893
• Citation: 18 S.E. 493,38 W.Va. 297
• Court: West Virginia Supreme Court
• Parties: BLUESTONE COAL CO. v. BELL et al.

18 S.E. 493

38 W.Va. 297

BLUESTONE COAL CO.

v.BELL et al.

Supreme Court of Appeals of West Virginia.

Nov. 22, 1893.

Mixing Lease—Abandonment—Collateral Contract—Specific Performance—Laches.

1. 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 99 years thence ensuing, the lessee agreeing to pay 10 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, 50 cents per 1, 000 square feet of lumber of inch thickness, and a proportionate sum for other thicknesses, or 25 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. If nothing has been done under said contract for the period of 17 years from the date of the contract, the lessor has a right to presume the contract has been abandoned, and said lessee or his assigns cannot, 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. Where it is made 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by the belief that such coal did so exist, and to aid the lessee in his mining operations, said contract should be rescinded, not only as to the coal, but as to the timber.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. In order that a party may have specific performance of a contract, he must not be in default, but must show himself to have been ready, eager, prompt, and desirous of maintain ing his rights. The rule of laches is more strictly applied in cases of this character than in ordinary suits for accounts, etc. (Syllabus by the Court.)

Appeal from circuit court, Mercer county; R. C. McClaugherty, Judge.

Action by the Bluestone Coal Company against David Bell and Ralph Shrader to restrain defendants from cutting and removing timber from certain land. There was a decree for plaintiff, and defendant Bell appeals. Reversed.

A. C. Davidson and Okey Johnson, for appellant.

J. S. Clark and A. W. Reynolds, for appellee.

ENGLISH, P. 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 Blue-stone, adjoining James Bell, Green Belcher, and Calfies, and others, and containing 150 acres, be the same more or less, to have and to hold the same from the date of said agree ment, for the period of 99 years thence ensuing; and the said Bailey, Straley, Johnston, and Bee, 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 of 10 cents per ton of 2, 240 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 50 cents per 1, 000 square feet of lumber of inch thickness, or a proportionate sum for other thicknesses, or 25 cents per tree, at the discretion of the lessees, their personal representatives, 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 for 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 99 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 99 years. Said plaintiff further alleged that the said David Bell had entered into some sort of an arrangement with the defendant Shrader, under whichthey 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 was 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 of 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 99 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 said circuit court in vacation, restraining said Ralph Shrader and David Bell, their agents and servants, from cutting, sawing, or removing from the 150 acres of land 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 plaintff'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 legal effect a lease, but that it was a mere optional contract, speculative in its character, entered into on the part of said Bailey and others for purely speculative purposes, and for a long number of years it had been abandoned, and was only sought to be revived by David E. Johnston and H. W. Straley and their associates after new events and developments, not contemplated when the paper was executed, made it desirable on their part to do so. That said paper was executed in 1872, when it was expected to secure the construction of a railroad from Hinton, up New river, to Bluestone; thence up Bluestone; the parties, at the time said paper was executed, asserting, and the defendant believing, that he had coal on his land, and that said...