Cowan v. Radford Iron Co

• Decision Date: 30 June 1887
• Citation: 83 Va. 547,3 S.E. 120
• Parties: Cowan v. Radford Iron Co.
• Court: Virginia Supreme Court

3 S.E. 120

83 Va. 547

Cowan

v.Radford Iron Co.

Supreme Court of Appeals of Virginia.

June 30, 1887.

Mining Lease—Construction—Abandonment—Termination of Estate.

Where, under a mining lease, the ore and minerals were sold, and the lessee invested with mining rights which were to begin at any time after the date pf the agreement, the compensation to be paid quarterly as the ore was mined, but no time was specified for the work to end, or the rights to expire, but the lessee was given the right and privilege of removing from the leased premises at any time any machinery, buildings, fixtures, or improvements made or erected upon it by the lessee, held, that the lessee, having the right to terminate the lease at any time, and having abandoned the work, failed to mine, and to make the quarterly payments as the lease provided, thereby terminated the estate; and, having refused to execute the contract according to its plain and reasonable interpretation, could not maintain any other rights concerning the same, and equity would decree a rescission and cancellation of the agreement of record.

Appeal from circuit court, Pulaski county.

J. C. Wysor, for appellant. J. E. Moore, for appellee.

Lacy, J. This is an appeal from a decree of the circuit court of Pulaski county, rendered at the March term of the said court, 1885. The bill was filed in January, 1884, to have rescission of an agreement made between the parties in 1880, for the sale of the iron ore on the farm of the appellant, which agreement is as follows:

"Agreement this day made and entered into by and between George W. Cowan, of the first part, and the Radford Iron Company of Virginia, of the second part, witnesseth that, for the consideration hereinafter expressed and contained, the said George W. Cowan has this day sold to the said Radford Iron Company all the ores, minerals, and valuable mineral products and substances upon and under the soil and surface of all that certain tract or parcel of land lying and being in the county of Pulaski and state of Virginia, on the south side of New river, containing seventy-seven and one-half acres, and bounded as follows, to wit: Beginning * * *.

"And it is understood, stipulated, and agreed, by and between the said parties of the first and second part, that the sale of the ores, minerals, and mineral products, upon the said tract or parcel of land, carries with it and vests in the purchaser the usual mining rights and privileges; that is to say, theright to enter at any time, from and after this date, upon the said land, with workmen, horses, wagons, carts, machinery, and mining tools and implements, and to dig for, mine, and explore, and to raise and carry away from or to deposit upon the said land all ores, minerals, and mineral substances which may be found on or under the soil or surface thereof. Also to use and employ sufficient surface room upon the said tract of land to erect and operate machinery and fixtures for mining and raising the ores, and pumping water from the mines, and to construct drains and ditches for carrying off the water so pumped; and also to use and employ sufficient surface room for the deposit of the refuse matter taken from the mines, and for the deposit of the ores and minerals taken from the mines, until the same can be conveniently transported. Also the right and privilege to erect, upon the said tract or parcel of land, dwellings for the hands and workmen employed in and about the mining operations, and stables for the horses used in mining, and transporting the ores and minerals; also to make and construct, and freely to use, all such roads and wagons over and through the said tract or parcel of land as the convenient development and working of the mines, and the transportation of the ores, minerals, and other things connected with the mining operations may require, embracing a road from the mines to connect with the Lead Mine road at the most suitable point; also to use water for washing the ores, and to take from the said tract or parcel of land, without charge, all timber necessary for mining purposes, and the erection of machinery and fixtures employed. But the privilege of taking timber is limited to such as is unfit for making rails. And it is further and expressly agreed by and between the said parties that the party of the second part, their representatives, successors, or assigns, shall have the right and privilege of removing from the said tract of land at any time any machinery, building, fixtures, or improvements made or...