Denniston v. Haddock
| Decision Date | 11 October 1901 |
| Docket Number | 345 |
| Citation | 50 A. 197,200 Pa. 426 |
| Parties | Denniston v. Haddock, Appellant |
| Court | Pennsylvania Supreme Court |
Argued April 15, 1901
Appeal, No. 345, Jan. T., 1900, by defendant, from order of C.P. Luzerne Co., Oct. T., 1894, No. 1311, dismissing exceptions to report of referee in case of Margaret Denniston et al. v. John C. Haddock. Affirmed.
Assumpsit to recover coal royalties.
Exceptions to report of J.A. Opp, Esq., referee.
From the record it appeared that on September 27, 1870, Margaret Denniston, and others executed a lease of coal to Charles Hutchison, whose interest became vested in John C. Haddock. This lease was for twenty years and provided for the payment of a minimum royalty. It appeared that Hutchison and his successors in title paid royalties during the whole term of this lease, but on account of strikes and other circumstances were prevented from mining coal to the full extent of the minimum paid. On September 22, 1891, the lessors executed a new lease which was to take effect October 1, 1891. Haddock the lessee was continuously in possession of the property during the term of both the old and new lease, and the period between them. He claimed to defalk the overpayments under the old lease amounting to $15,000, from the royalties due under the new lease.
The referee refused to allow such defalcation and exceptions to his report were overruled by the court.
Errors assigned were in overruling exceptions to referee's report.
Judgment affirmed.
H. W Palmer and S. J. Strauss, with them F. W. Wheaton, for appellants. -- That the title to the coal for which the appellant actually paid during the term of the first lease actually passed from the lessor to the lessee has been decided ten times in this court and is no longer a mooted question: Sanderson v. Scranton, 105 Pa. 469; Lazarus's Estate, 145 Pa. 1; Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613.
The doctrine of fixtures applies. A tenant who has remained in possession after the expiration of the term, has the right to take away his fixtures: Penton v. Robart, 2 East, 88; Mackintosh v. Trotter, 3 M. & W. 184; Lewis v. Ocean Nav. & Pier Co., 125 N.Y. 341; Wick v. Bredin, 189 Pa. 83.
Time was not of the essence of the contract: Decamp v. Feay, 5 S. & R. 323; Tiernan v. Roland, 15 Pa. 429; Summerson v. Hicks, 134 Pa. 566; D'Arras v. Keyser, 26 Pa. 249; Haverstick v. Erie Gas Co., 29 Pa. 254; Townsend v. Lewis, 35 Pa. 125; Remington v. Irwin, 14 Pa. 143; Kitchen v. Stokes, 9 W.N.C. 48.
The rule is that in equity time is prima facie, not essential: Parkin v. Thorold, 16 Beav. 59; Remington v. Irwin, 14 Pa. 143; Day v. Hunt, 112 N.Y. 191; Butler v. Archer, 76 Iowa 551.
William S. McLean, with him D. O. Coughlin, for appellees. -- The doctrine applicable to the removal of trade fixtures is not analogous to the question raised in the assignments of error: Davis v. Moss, 38 Pa. 346.
The doctrine, that time is or is not, of the essence of the contract does not affect limitation upon estates.
Before McCOLLUM, C.J., MITCHELL, BROWN, MESTREZAT and POTTER, JJ.
It has been said in a number of cases that a conveyance of the right to mine and remove all the coal in a given tract of land, is a sale of the coal in place although the conveyance may be called a lease. The expression is unfortunate, for while it may have produced no erroneous result in the cases where it is used, it tends to substitute the general rules appertaining to sales, for the rules properly applicable to the particular contract that may be under consideration by the court. Thus for example, in Hope's Appeal, 29 W.N.C. 365, which is practically the starting place of the error, the agreement though called a lease was a purchase of the coal at a fixed price per acre, making a liquidated gross sum, which was payable absolutely in installments ending within thirteen years, though the lessee had a nominal term of ninety-nine in which to remove the coal. It was justly said by the learned court below whose decision was affirmed here that it was "manifest that the parties contemplated an actual sale of the coal, and not a lease in the ordinary use of that word." In Sanderson v. Scranton, 105 Pa. 469, the lease was expressly made "perpetual until all the coal under the tract is mined," and it was held that this was such a complete severance that the taxes of the city of Scranton on the coal in place were chargeable to the lessee and not the lessor. So in Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613, it was again held that there was such a severance that occupation of the surface was not an adverse possession even against a lessee who had not opened up or entered on actual possession of the coal.
With the decisions in these cases no fault can be found, but the expression...
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