Consol. Coal Co. of St. Louis v. Peers

• Citation: 37 N.E. 937,150 Ill. 344
• Parties: CONSOLIDATED COAL CO. OF ST. LOUIS v. PEERS et ux.
• Decision Date: 19 June 1894
• Court: Supreme Court of Illinois

150 Ill. 344

37 N.E. 937

CONSOLIDATED COAL CO. OF ST. LOUIS

v.PEERS et ux.¹

Supreme Court of Illinois.

June 19, 1894.

Appeal from appellate court, fourth district.

Assumpsit by Joshua S. Peers and Adeline C. Peers, his wife, against the Consolidated Coal Company of St. Louis. Plaintiffs obtained judgment, which was affirmed by the appellate court. 39 Ill. App. 453. Defendant appeals. Affirmed.

Charles W. Thomas, for apppellant.

J. G. Irwin and Wm. M. Krome, for appellees.

BAKER, C. J.

Joshua S. Peers and Adeline C. Peers, lessors in a mining lease made to the Abbey Coal & Mining Company, brought assumpsit, on the 26th day of September, 1888, against the Consolidated Coal Company of St. Louis, as assignee of the lease by deed poll from said Abbey Coal & Mining Company. No demurrer was interposed to the declaration; and the issue joined upon a plea of nonassumpsit was submitted to the court, without a jury. The finding of the court was for the plaintiffs, and the damages were assessed at $1,200. A motion for a new trial was made, which was overruled, and an exception taken; and thereupon the defendant moved in arrest of judgment, on the ground that the declaration set out no cause of action, but this motion also was denied, and exception taken. The court then rendered final judgment on its findings for the damages assessed, and for costs. The case was then taken by appeal to the appellate court of the fourth district by the defendant, and the judgment affirmed; and thence appellant brought the record here by this appeal.

It is expedient to so transpose matters as that the last procedure had in the trial court (outside of the mere entry of judgment and the orders consequent thereon) shall be considered first; for, if the contention of appellant, in its motion in arrest, that the declaration of appellees sets out no cause of action. is sustained, then that is an end of the matter, at least so far as the present appeal is concerned. Four reasons are urged why the declaration is bad, and insufficient to sustain the judgment. We will take them up consecutively.

1. The first ground urged is that the suit was brought September 26, 1888, to recover the supposed guarantied royalty for 12 months elapsing between September 20, 1887, and September 20, 1888; that the year established by the supposed lease commenced on the 17th day of each December; that said royalty was payable annually in December; that the year ending December 17, 1888, had not elapsed when the suit was begun, and that the absolute guaranty in the supposed lease set up in the declaration is a ‘yearly royalty of not less than $1,200;’ that there the covenant ceases, and all that follows of the words ‘and if’ is a privilege reserved, instead of a covenant. That part of the declaration upon which this objection is predicated is, as we find it stated in appellant's abstract of the record, as follows: ‘That the plaintiffs, on the 17th day of December, 1870, made a certain coal lease to the Abbey Coal and Mining Company, for the term of twenty-five years from its date, whereby they granted to the said company the sole right to mine the coal from under the land described in said lease; that the said Abbey Coal and Mining Company agreed to begin mining coal from the said land within twelve months of the date of said lease, and to guaranty the plaintiffs a yearly royalty of not less than twelve hundred dollars, after the expiration of twelve months from the date last aforesaid; that if, after the expiration of one year, no coal should be mined from the said tract of land, and the lessee should pay the monthly installments of one hundred dollars in their guaranty of twelve hundred dollars a year, said payments should be considered as advanced royalty, and said lessee was to have the right to mine coal sufficient to make the amount of coal mined equal the amount of royalty paid, provided the royalty paid should not be less than one hundred dollars per month; that the said lessee should carry on the work in a good and workmanlike manner, and take as much coal from said land as a proper regard for the safety of the mine would admit, and to pay the plaintiffs a royalty of three-eighths of a cent per bushel of eighty-five pounds for all coal mined, except such as was taken from shafts, entries, and courses, and such as was used at the mines for stationary engines; and that such royalty should be paid monthly, on the 20th day of the month, for coal mined the preceding month.’ It was said by Chief Justice Gibson in Walker v. Physick, 5 Pa. St. 193, that the great rule for the interpretation of covenants is to so expound them as to give effect to the actual intent of the parties, collected, not from a single clause, but from the entire context; and in Reniger v. Fogossa, 1 Plow. 18, it was said: ‘The scope and end of every matter is principally to be considered; and, if the scope and end of the matter be satisfied, then is the matter itself, and the intent thereof, also accomplished.’ The doctrine of these cases has been frequently affirmed by this court, and announced in decisions too numerous to specify. Applying this doctrine to the lease declared on in the narr., we find that the term ‘royalty’ is applied by the parties, not only to the three-eighths of a cent per bushel to accrue from coal actually mined, but to the monthly payments of $100, to accrue upon the guarantied ‘yearly royalty of not less than twelve hundred dollars.’ Indeed, it is expressly charged in the declaration that it was agreed that ‘said payments should [in the lease itself the word used in ‘shall’] be considered as advanced royalty.' The royalty was not to be less than $100 ‘paid in any one month;’ and it is averred in the declaration ‘that such royalty should be paid monthly, on the 20th day of the month, for coal mined the preceding month.’ In view of the context, and in view of the fact that, if no date of payment had been fixed by the clause last quoted, the monthly payments of ‘advanced royalty’ or guarantied royalty would have been due on the 17th day of each month, instead of upon the 20th day of each month, it seems clear that it was not intended by the parties that said clause above quoted should be limited to royalty upon coal actually mined. In other words, we think that the meaning of the lease, as deducible from the averments of the declaration, when taken as a whole, is that the guarantied royalty, although fixed on a yearly basis of $1,200, was to be paid in monthly installments of $100 each, and the days when such respective payments should be made duly designated. We may add that any number of installments due upon an instrument in suit may be declared for and recovered upon in one and the same count. Godfrey v. Buckmaster, 1 Scam. 450. In our opinion, the first objection made to the declaration should not be sustained.

2. The second point made is that the supposed lease set up in the declaration is a mere personal license, and was not assignable. The declaration avers that ‘the plaintiffs, by their certain instrument in writing and under seal, commonly called a ‘lease,’ * * * leased, set over, and assigned unto the said Abbey Coal and Mining Company, for the full term of twenty-five years from the date thereof, the sole and exclusive right of mining and operating in coal on the tracts of land above described,' etc.; and it further avers that ‘when, * * * by its deed of that date, * * * it, the said Abbey Coal and Mining Company, granted, bargained, sold, assigned, transferred, and set over to the defendant the coal underlying said tracts of land, together with all the rights, privileges, and appurtenances thereunto appertaining or belonging, as the same were conveyed or assured by said lease, * * * thereby covenanted and agreed to and with the defendant that it was seised of a perfect title to the property thereby conveyed,’ etc. It seems to us that appellant, by accepting said deed, and taking the holding possession under it of the property conveyed, and using, controlling, and enjoying such property, all which further facts are also alleged in the declaration, should be estopped from making the claim now under consideration. But, be that as it may, the law is against the validity of the claim. The lease declared on by appellees is not a mere personal license. A license is an authority to do a particular act or acts upon another man's land, without possessing any estate therein. 1 Washb. Real Prop. p. *398, c. 12, § 2. The lease here involved invests the lessee with the ‘sole and exclusive right’ to mine and operate in coal on certain described lands. The right granted is not limited to any particular vein or stratum, but extends to all coal under said lands, and it is exclusive of the whole world, including the lessors themselves, and is for the full term of 25 years from the date thereof. The law, as we understand it, is that a lease of the right and privilege to mine or take away stone or coal from the lessor's land is the grant of an interest in the land, and not a mere license to take stone or coal. Caldwell v. Fulton, 31 Pa. St. 475, and authorities cited therein; Harlan v. Coal Co., 35 Pa. St. 287. This second point made by appellant is not tenable.

3. The third ground of objection is that the supposed guaranty of $1,200 a year, as royalty, merely fixes a penalty, and the appellees could only recover for its breach such damages as the proof shows that they actually suffered, so that an action for the $1,200, as for liquidated damages, does not lie. As authority for its contention in support of this position, appellant places its principal reliance upon the decision of this court in Scofield v. Tompkins, 95 Ill. 190. In that case the question was whether the $22,770 named in the agreement as the price of the land, and also as liquidated damages in case that sum was not paid by a fixed day, and time of payment being made of the essence of the...