Cypress Creek Coal Co. v. Boonville Mining Co.
| Decision Date | 05 February 1924 |
| Docket Number | No. 24073.,24073. |
| Court | Indiana Supreme Court |
| Parties | CYPRESS CREEK COAL CO. et al. v. BOONVILLE MINING CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Gibson County; Chase Harding, Judge.
Action by the Boonville Mining Company against the Cypress Creek Coal Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.W. C. Mason, of Rockport, and Duncan & Duncan, of Princeton, for appellants.
Funkhouser, Funkhouser, Vandeveer & Markel, of Evansville, and Union W. Youngblood, of Boonville, for appellee.
This was an action by the appellee against appellants and others to recover damages for coal alleged to have been removed from land upon which the appellee claimed an exclusive right to mine coal, and also for an injunction to prevent appellants from removing any more coal therefrom. The court rendered judgment against appellants in favor of the appellee for damages in the sum of $20,958.38 and costs, and enjoined them from removing any coal from said land during the existence of the lease under which the appellee claims.
The land containing the coal in dispute is owned by Edmund H. Hart. The appellee claims its right by virtue of a lease dated November 4, 1916, executed to its assignor, Clem E. Doane, by said Hart and wife, which lease also purported to have been executed by Daniel De Forest, through his guardian, Sylvester T. De Forest, and which included land owned by said Hart and also other land in which said Daniel De Forest held a life estate. The appellants claim their rights by virtue of a deed to such coal, executed by said Hart and wife on June 6, 1917.
There are assignments of error based upon rulings of the court holding the complaint sufficient and certain paragraphs of answer bad and in overruling the appellants' motion for a new trial; but, as the questions raised by these several assignments are related, we shall discuss the propositions contended for without a separate discussion of each assignment.
A statement of the facts disclosed by the record is necessary before considering the questions raised:
On and prior to July 24, 1913, said Daniel A. De Forest owned 200 acres of land in Warrick county, which was at that time and for many years prior thereto had been leased by him to other persons for coal mining, and that during such time the same was used for mining purposes, and a coal mine was in operation thereon at such time, and from which said De Forest received a rental in the form of a royalty. That on said day he executed a deed to his children conveying the fee in such real estate, but reserving to himself a life estate, which deed was recorded July 24, 1916. That on March 16, 1914, Sylvester T. De Forest was appointed guardian for said Daniel A. De Forest. That in July, 1916, the person who had been operating the mine on said De Forest land surrendered his lease and ceased the operation thereof and removed a part of his property therefrom, and on November 4, 1916, when the lease in dispute was executed, the mine was not in operation. That said Edmund H. Hart owned 80 acres of land lying north of and adjacent to said De Forest land. That no mine had ever been opened on said Hart land. That on November 4, 1916, said Hart and wife and said Daniel A. De Forest, by his guardian, Sylvester T. De Forest, executed to one Clem E. Doane the lease in dispute, which covered the N. W. 1/4 of section 32 and the N. W. 1/4 of the N. E. 1/4 of section 32, as belonging to said De Forest, and also 80 acres described as belonging to said Hart.
Said lease purported to give to said lessee the absolute and exclusive right to mine and remove the coal from under said land during the term of 25 years. Said lease also contained the following provisions, which are necessary to be considered in determining the questions raised:
“(3) The said lessee may terminate this lease at any time the mine ceases to be profitable to operate, of which the lessee shall be the judge, by giving the said lessors thirty (30) days' notice of his intention so to do and upon the expiration of said thirty (30) days shall have the right and privilege to remove all the buildings, machinery and improvements now situated or hereafter erected upon the real estate hereinabove described provided all royalties due and owing to the said lessor shall have been paid.
(4) In consideration of the rights, privileges and franchises herein granted by the said lessors to the said lessee the said lessee agrees to pay to the said lessors as royalty for all coal mined under the land hereinabove decribed the sum of 2 1/2 cents per ton of 2,000 pounds of mine run coal; and for all coal taken from other lands and hauled through the entries under the lands of the said lessors hereinabove described, and the said lessee agrees to pay to the said lessors for each ton of two thousand pounds of mine run coal so hauled the sum of one-half of one cent per ton. Said royalties to be due and payable to the said lessors monthly on the 10th day of each and every month of each year for the preceding month. Each party of the first part to receive for his share of the royalty a sum proportionate, as to the number of acres of actual coal lands included in this lease; the lessors to select one of their number as treasurer to receive the whole sum of said royalty from the lessee, and receipt therefor, who shall make the distribution among the other lessors according to the term of this lease. It is expressly understood by and between the parties that in the event the said lessee shall make default in the payment of the royalties hereinabove provided and the same shall remain unpaid for a period of three months from the time they are due this lease becomes null and void and terminated and the said lessors shall have and hold a lien on any mining equipment and building located on the real estate of the lessors hereinabove described until such royalty or royalties are paid. ***
(6) It is understood and agreed that the lessees will begin operation under this lease within six (6) months from the date herein; otherwise this lease is null and void and the same may be forfeited at the option of the lessors. ***
(7) It is understood and agreed by the parties hereto that the minimum rental or royalty reserved under this lease for the period of each year from the time the said lessees begin operation under this lease shall be not less than the sum of one thousand ($1,000.00) dollars.
And if, at any time, the royalty paid the lessors under this lease, should not amount to the sum of one thousand ($1,000.00) dollars, royalty shall be a credit on the future royalties of any year thereafter in which the royalties shall have amounted to more than one thousand ($1,000.00) dollars on the coal actually mined that year.
It is understood and agreed by the parties hereto that the royalty for all coal mined on the south half of the northwest quarter of section thirty-two (32), township five (5) south, range eight (8) west, is to be kept separately and paid to the Daniel A. De Forest, but the royalty for all coal mined on any of the other above-described real estate is to be paid to the party above selected by the lessors and to be divided among the lessors on the proportion of 40 acres of coal lands for the said Daniel A. De Forest et al. and 80 acres of coal lands for the said Edward Hart.”
That said guardian's action in executing said lease was not ordered or approved by the court until July 19, 1917. That said Sylvester T. De Forest was a notary public and as such notary took the acknowledgment of said Hart and wife to said lease. That Doane caused said lease to be recorded by the recorder of Warrick county on April 30, 1917. That thereafter Doane procured the children of Daniel A. De Forest, and who were the owners of the remainder interest in the De Forest real estate, to sign said lease, and their names were inserted in the body of the same. That thereafter, on July 19, 1917, this lease, bearing the signatures of the remaindermen as well as the original parties, was reported to and approved by the court, and then was again recorded. That on June 1, 1917, said Daniel A. De Forest, by his guardian, and the remaindermen, together with Henry A. Roetzel and Henry G. Roetzel, executed a lease to said Clem E. Doane, giving said Doane the right to mine coal for 25 years, on the south 80 acres of the De Forest land, being the south half of the northwest quarter of section 32, and also on approximately 80 acres owned by said Roetzels adjoining the De Forest land on the west. This south 80 acres of the De Forest land was included in the first lease given to Doane, but it was provided in that lease that all royalties for coal mined on that part was to be paid exclusively to De Forest and no part of the same to Hart.
This lease from the De Forests and Roetzels contained the following provisions, among others:
“(1) That the south half of the northwest quarter of section thirty-two (32), township five (5) south, range eight (8) be and the same is hereby released from a certain lease executed by the lessors Daniel A. De Forest et al. and Edward H. Hart and wife to the within lessee and said lease is hereby canceled as to the last above-described real estate, executed November 4, 1916, and recorded in Miscellaneous Record 11 at pages 63, 64, of the records of said county and state. ***
(12) It is further agreed by the parties hereto that the rents and royalties herein agreed to be paid shall be deemed and treated as rents received upon contract by the lessors and the same shall be a first lien against all said leasehold property, subject to the lien of the lessors Ed. H. Hart et al., in a lease dated November 4, 1916.”
That the lessee Doane did not begin the actual production and hoisting of coal within six months after the execution of the Hart-De Forest lease, but within that time he bought some of the property at the mine belonging to the former lessee,...
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Collins v. Held
...may convey his interest in the land but cannot create a greater interest than that which he owns. Cypress Creek Coal Co. v. Boonville Mining Co. (1924), 194 Ind. 187, 142 N.E. 645. A life estate terminates on the death of the person on whose life the estate is limited. 31 C.J.S. Estates § 6......
- Cypress Creek Coal Co. v. Boonville Mining Co.