Cherokee Const. Co. v. Bishop

• Decision Date: 25 May 1908
• Parties: CHEROKEE CONST. CO. v. BISHOP et al.
• Court: Arkansas Supreme Court

112 S.W. 189

CHEROKEE CONST. CO. v. BISHOP et al.

Supreme Court of Arkansas.

May 25, 1908.

Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor.

Action by Araminta D. Bishop and others against the Cherokee Construction Company and another. Judgment for complainants, and the construction company appeals. Affirmed in part, and reversed in part.

Ira D. Oglesby, for appellant. Miles & Miles, R. A. Rowe, T. B. Pryor, and J. N. Rachels, for appellees.

BATTLE, J.

On the 26th day of February, 1901, Araminta D. Bishop and others leased certain lands to Jerry M. Cravens for the period of thirty years.

The lease is as follows:

"This contract and agreement made and entered into this 26th day of February, A. D. 1901, by and between Araminta D. Bishop, widow of R. A. Bishop, deceased, Tilula W. Hocott and Thomas Hocott, her husband, Lee S. Bishop and wife, May Bishop, Almira T. Shelton and her husband, John H. Shelton, Ben Bishop and wife, Minnie Bishop, of Sebastian county, Arkansas, parties of the first part, and Jerry M. Cravens, of Sebastian county, Arkansas, party of the second part,

"Witnesseth: That the parties of the first part for themselves, their heirs, executors, administrators and assigns, in consideration of the sum of one dollar to them in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, and for the further consideration and covenants hereinafter mentioned, have leased and do hereby lease and let to the party of the second part, his heirs, executors and assigns, the following described lands for the purpose hereinafter named, situated in the Greenwood district of Sebastian county, state of Arkansas, to wit:

"The northeast quarter section thirteen and north half of northwest quarter and north half of the southeast quarter of northwest quarter, section thirteen, township five, range thirty-two, northeast quarter, section thirteen and north half of northwest quarter and north half of southeast quarter of northwest quarter of section thirteen, township five north, range thirty-two west, except one acre of said land in square form upon which the said parties of the first part's dwelling and adjoining buildings are now situated which is strictly understood is reserved from the operation of this lease, and no coal is to be mined or taken therefrom.

"With the sole and exclusive privilege of mining for coal and operating coal mines thereon and taking and selling coal therefrom for the term and period of thirty years from this date, hereby given to the party of the second part the exclusive right to mine coal on said premises and to remove and sell the same for the term aforesaid, hereby giving the party of the second part, for the consideration aforesaid, the privilege of taking sufficient coal out of said premises for stationary machinery necessary for conducting said mining operations free of charge, and said party of the second part shall have the right free of charge to take from premises all such timber and stone as may be necessary to be used to conduct said mining business; that is to say, all such material as may be necessary to be used in constructing and maintaining said mine or mines, but not to include such timber as is used in building houses, tipples, railroad bridges, and railroad ties, and all timber so used for said purpose shall be paid for at the price of two dollars per thousand feet, standard measure.

"And the said party of the second part shall also, for the consideration aforesaid have the right to erect on said premises all necessary buildings for the purpose of carrying on said coal mining business, including dwellings for miners and other employés of said second party, and said second party of the second part, his successors or assigns shall have the right to build and maintain roads and railways to and from all shafts, slopes, or strip pits now on said premises, or that may hereafter be put thereon for the use of said mine or mines, and said party of the second part, his agents, successors or assigns, shall fence all the aforesaid railroad tracks and build and maintain suitable stock gaps thereon, and it is further understood and agreed that said party of the second part, or his legal representative, shall build and maintain gates on all dirt roads made by them as aforesaid when said roads enter upon any of the inclosure of said party of the first part.

"It is further agreed and understood that the party of the second part is to pay all taxes on improvements placed on said premises by the party of the second part and the taxes on the realty are to be paid by the party of the first part.

"It is further understood and agreed that the party of the second part shall enter upon said land within ninety days from date hereof, and begin sinking slope or shaft, and, in event it is not commenced in the time specified, then the party of the second part forfeits this lease and all privileges thereunder, and all improvements made thereon to the parties of the first part.

"The party of the second part agrees and binds himself, his successors or assigns, that, should he elect to sink shaft or slope upon the line running east and west between the southeast quarter and the northeast quarter of said section thirteen, township five north, range thirty-two west, he will have on or before the first day of July, 1902, in place upon said premises, for the operation of said slope or shaft, not less than two boilers of 60 horse power each and hoisting engine of not less than 100 horse power, and all other necessary appliances for the successful operation of said mine or mines.

"It is further understood and agreed that said party of the second part his successors or assigns shall pay to the party of the first part the following royalty, to wit: For mine run coal the sum of five cents per ton, 2,000 pounds to constitute a ton (bulletin weights to govern settlement), the minimum royalty to be $500.00 per year during the period of this lease, or until the coal shall be worked out, and, should all of the said coal be mined from said land before the expiration of this lease, then said minimum shall cease, and, in case the royalty on coal mined shall exceed in any one year the said sum of $500.00, then the excess of royalty of previous years shall be applied to the deficiency. The royalty as aforesaid to be paid on the 20th day of each month for the coal mined the previous month; i. e., coal mined in March, 1901. The royalty on same would be due and payable April 20 of same year, and, in the event that said royalty is not paid as aforesaid within ninety days from the date it becomes due, then said party of the second part, his successors or assigns, shall forfeit this lease and all privileges thereunder, and in no case shall any machinery or other improvements be removed from the premises or disposed of by the party of the second part, his successors or assigns, until said royalty is fully paid. And it is expressly understood and agreed that said parties of the first part, or their legal representatives, shall have a first lien upon all of said improvements and machinery that are now upon said leased premises, or may hereafter be put thereon by the party of the second part, his successors or assigns, until royalties herein provided for are fully paid.

"Said party of the second part, his successors or assigns, shall furnish the parties of the first part, or their legal representatives, a statement on the 15th day of each month for all coal mined the previous month, said statement to be made from bulletin weights, and the parties of the first part or their legal representative shall at all reasonable hours have access to the weigh books, bulletin sheets, and other records of the coal mined and kept in his office.

"It is further understood and agreed by the parties hereto that said mines or mine shall be operated by the party of the second part, his successors and assigns, with due diligence, and at no time during the period of this lease shall said mine or mines be idle for more than thirty consecutive days in any one year, unless same is caused by strikes, labor troubles, shortage in cars, floods, explosions, fires, shortage in orders, or other unavoidable circumstances not within the power of the party of the second part to prevent.

"It is further understood and agreed by the parties hereto that the party of the second part, his successors or assigns, may, at such times as he or they may deem best, move or cause to be moved any buildings, machinery, railroad tracks, or materials which he or they have put upon said premises without force or process of law; provided, however, that the royalty has been paid as aforesaid and work commenced within ninety days as aforesaid.

"It is understood and agreed by the parties hereto that the party of the second part, his successors or assigns, shall have the right to sublet said premises for the purposes of mining coal as aforesaid, subject to all the conditions of this lease.

"It is hereby agreed by the parties of the first part, or their legal representatives, that said party of the second part, his successors or assigns, shall have the sole and exclusive right to locate, own, or conduct a mercantile business on said premises for the period of this lease.

"It is further understood and agreed that said parties of the first part, or their legal representatives, shall at all times during reasonable hours have the right to enter said mine or mines for the purpose of investigation.

"In witness whereof, we have hereunto set our hands and seals, in duplicate, on this the day and date first above written.

                         "Araminta D. Bishop.       [Seal.]
                         "Tahilah W. Hocott.        [Seal.]
                         "May Bishop.               [Seal.]
                         "John H. Shelton.          [Seal.]
                         "Minnie Bishop.            [Seal.]
                         "Thomas Hocott.            [Seal.]
                         "Lee S. Bishop.            [Seal.]

...