Gilreath v. Carbon Hill & Lost Creek Coal Co.

• Decision Date: 30 June 1908
• Citation: 47 So. 298,157 Ala. 153
• Parties: GILREATH v. CARBON HILL & LOST CREEK COAL CO.
• Court: Alabama Supreme Court

47 So. 298

157 Ala. 153

GILREATH v. CARBON HILL & LOST CREEK COAL CO.

Supreme Court of Alabama

June 30, 1908

Appeal from Chancery Court, Walker County; Alfred H. Benners Chancellor.

Bill by Belton Gilreath, as trustee, etc., against the Carbon Hill &amp Lost Creek Coal Company. From a decree dissolving a preliminary injunction, complainant appeals. Affirmed.

Bankhead & Bankhead and W. C. Davis, for appellant.

Ernest Lacey, for appellee.

SIMPSON J.

The bill in this case was filed by the appellant against the appellees--the Carbon Hill & Lost Creek Coal Company, P. M Long, as executor of B. M. Long, deceased and Peyton Norvell--seeking to cancel a lease, to require said coal company to deliver up the leased premises, also to recover amounts due by said company for royalties, and to enjoin said company from operating the coal mines on the leased premises. A preliminary injunction was issued, and was dissolved, on the coming in of the answer, and on affidavits filed by both parties. The appeal is from the decree dissolving the injunction.

The parties to the lease were B. M. Long and John W. King, who leased to Evan Bynum and J. W. Shepard. Complainant has become the owner of the interest of said J. W. King, and said coal company is the successor of said Bynum and Shepard, the second parties. The lease grants to said second parties all the coal in a certain tract of land, with the exclusive right to mine and carry away the same, also the right to use timber, etc., to have and to hold for 20 years, "for a rent or royalty upon all salable coal and all coal utilized for cooking and other purposes," for which they were to pay "on all salable coal up to 500 tons per day a royalty of 7 cents per ton, and on all of said coal in excess of 500 tons per day a royalty of 5 cents per ton." After the expiration of 12 months they were to pay at least on 50 tons per working day for 2 months, and afterwards on 100 tons per working day. It is provided in the lease that "if default be made in payment of any portion of said rent or royalty when due, for more than 60 days thereafter, the said parties of the first part, their agent or attorney, may re-enter and take possession, and, at their option, terminate this lease." There are no stipulations as to how the mining business is to be conducted.

The bill alleges that said coal company is insolvent, that it has not operated said property since March 2, 1894, and excepting a few small payments, has paid no royalty since that time, but a few months ago said coal company re-entered on said property and commenced to mine, and complainant has refused his consent to such operation. The bill also states, on information and belief (without any allegation that a receiver had been appointed), that said coal company had practically abandoned said lease "upon the appointment of said receiver"; that in March, 1904, complainant notified said coal company that he elected to declare said lease forfeited, in accordance with the contract, and demanded possession of his undivided half interest; that the amount due complainant exceeds the value of the property of the said coal company; that neither said company nor said P. H. Norvell has the ability to pay the amount due. It also alleges that respondents are not operating the mines in a proper and tenantlike manner, but are exposing it to waste, so that if they are allowed to remain they will eventually consume all of the coal on the land. The bill also alleges that P. M. Long, as the administrator of the estate of B. M. Long, deceased, does not join in this bill, but has made a new contract with said coal company, by which additional rights have accrued to said estate; that Peyton Norvell is the president of said coal company and has control thereof; that complainant has commenced an action of unlawful detainer against said coal company for the recovery of said property, but, if the injunction is not granted, irreparable injury will result to complainant before the termination of said suit.

The answer admits the lease, but states that there is a dispute between the heirs of John W. King as to the ownership of the half-interest in said lands--the heirs of said John W. King denying that the complainant, Belton Gilreath, as trustee, is the owner of the same--and that there is now pending in the circuit court a suit between said heirs and said Gilreath to determine the ownership of said interest, and that said heirs have notified respondent not to pay a royalty or rent to said Gilreath. It denies that said coal company is insolvent, but states that the only debt against it is $1,692.03, due for royalties or rent, to the owner of the half interest formerly belonging to John W. King, and that it is able and willing to pay the same, when...