Argued
October 15, 1902
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal, No. 176, Oct. T., 1902, by defendant, from decree of
C.P. Mercer Co., April T., 1902, No. 3, on bill in equity in
case of Samuel Hosack, Executor of John Hosack, Deceased, v.
John T. Crill. Affirmed.
Bill in
equity to determine right to royalties from coal.
MILLER,
P.J., filed the following opinion:
The
Mercer Mining Company, under and by virtue of a certain
agreement entered into on August 26, 1863, between John
Hosack, the decedent, of the one part, and Hugh B. Wick of
the other, mined coal from under the premises described in
said agreement, and the royalty on the coal so mined being
claimed by Samuel Hosack, the executor of John Hosack,
deceased, and John T. Crill, on the request of all the
parties in interest, an issue was framed by the court on
April 11, 1902, for the purpose of determining the rights of
the respective parties to the money admitted by the Mercer
Mining Company to be in their hands; in said issue Samuel
Hosack, executor of John Hosack, deceased, was to be the
plaintiff, and John T. Crill the defendant.
On June
23, 1902, the said parties, plaintiff and defendant, waived a
trial by jury, and consented and agreed that the same should
be tried without the intervention of a jury. Upon
consideration of the whole of the evidence the court finds
the following facts:
FINDINGS
OF FACTS.
1. John
Hosack, the decedent, and Hugh B. Wick entered into a written
agreement on August 26, 1863, which agreement was recorded in
the recorder's office of Mercer county, February 18,
1864, in article book C, page 123.
The
agreement is as follows:
"Article
of agreement made and concluded this 26th day of August,
1863, between John Hosack, of the township of Findley, county
of Mercer, state of Pennsylvania, party of the first part,
and Hugh B. Wick, town of Youngstown, county of Mahoning and
state of Ohio, party of the second part, as follows: the
party of the first part for and in consideration of one
dollar to him in hand paid as well as the agreements
hereinafter mentioned does hereby bargain, sell and convey
unto the party of the second part, his heirs or assigns, all
the mineral, coal and iron ore in, upon and under the tract
of land in the township of Findley, in the county of Mercer
in the said state, bounded and described as follows: The
first tract is bounded northerly by lands of James Alexander
and others, easterly by lands of William Pardoe and Hugh
Evans, southerly by lands of B. Sidley, westerly by lands of
Jacob Vannatta, containing about 240 acres. Second tract is
bounded northerly by lands of James Connelly's heirs,
easterly by lands of Lawrence Boyer, southerly by lands of
James Johnson, westerly by lands of David Bastress,
containing about 131 acres of land; containing in the whole
381 acres of land; granting to the party of the second part
or his heirs or assigns as well as his and their laborers and
workmen the right to enter upon said lands at any time
hereafter and search for coal and ore, and when found to
remove the same from said lands, together with all the rights
and privileges incident to mining and securing said coal and
ore, including the right of egress and ingress and to dig,
mine and explore and occupy with such buildings and
constructions as may be necessary and useful for the full
enjoyment of the advantages of said coal and ore, and with
the refuse from said mines, and also the right to mine and
remove the coal and ore of adjoining lands through, over or
under said lands during the continuance of this agreement.
"And
the party of the second part agrees by himself, his assigns
and workmen to enter upon and make search for coal and ore
upon the lands above described, and should he find coal and
ore in said lands and adjoining lands of sufficient
thickness, quantity and quality to justify him, the party of
the second part, to open and work said mines, then he or his
representatives or assigns shall pay to the party of the
first part, his heirs or assigns, within five years after the
completion of a railroad on or near the above described
premises, made in connection with any other leading railroad,
by which said minerals can be taken to any large market, the
sum of $10.00 a year during the continuance of this
agreement; and the failure to make these advance payments
yearly upon request or within one year after demand upon the
party of the second part shall be deemed an abandonment of
this agreement or lease, but not to the injury of the second
party or his assigns, and the party of the second part shall
have the right to abandon the said lands and mining at any
time and remove all his buildings and fixtures from said
land.
"It
is further understood and agreed by the parties that if the
party of the second part shall fail to construct or cause to
be constructed the above contemplated railroad within fifteen
years from the date of this contract, the party of the second
part shall pay to the party of the first part the above named
sum of $10.00 a year until the railroad is constructed and
mining is commenced on said premises, and the said party of
the second part by himself and his assigns and workmen agrees
to pay to the party of the first part, his legal
representatives or assigns, the sum of five cents for each
ton of 2,240 pounds of screened coal mined and removed from
said lands herein described, and the price or rent of the ore
mined or removed from said lands for such gross ton of 2,240
pounds shall be five cents for screened and cleaned; but it
is understood and agreed that any advance payments of $10.00
as above mentioned to be paid yearly that shall be made to
the party or the (second) party of the first part are to
apply on the payment of rent of coal first mined thereafter.
The payment of rent on coal mined and removed shall be made
yearly, and all payments required by this agreement shall be
made and accepted in bankable funds of the state of
Pennsylvania.
"It
is mutually understood by the parties that the coal under any
dwelling houses or other permanent buildings shall not be
mined out and as little injury to the surface of said lands
shall be done as possible in mining, removing and
transportation of said coal and ore as herein contemplated.
"It
is further understood and agreed by and between the parties
to this contract that the party of the first part agrees to
grant and give to the party of the second part all the land
necessary for the location, construction and occupancy of a
public railroad as above contemplated.
"It
is further agreed that the party of the first part may mine
for his own use coal from said premises until the railroad is
completed.
"It
is also mutually understood that the stipulations herein
contained shall apply to and bind the heirs, executors,
administrators and assigns of the parties respectively.
"In
witness whereof the parties hereunto set their hands and
seals the day and year first above mentioned.
"All
interlineations and erasures made before signing.
"JOHN
HOSACK. [Seal.]
"HUGH
B. WICK." [Seal.]
2. John
Hosack, the lessor, was on August 26, 1863, and prior
thereto, the owner of the premises mentioned in said
agreement.
3. John
Hosack died on February 5, 1868.
4. The
search for coal and ore mentioned in said agreement was not
made until sometime in the year 1868, and subsequent to the
death of John Hosack.
5. No
drilling was done nor any entry made under said instrument by
Hugh B. Wick, or anyone under him, until sometime after the
death of John Hosack in 1868.
6. Hugh
B. Wick, the lessee in said agreement, and the persons
associated with him in the same enterprise made and executed
similar agreements to the one in question, and about the same
time, with persons owning several thousand acres of land in
Mercer and Butler counties, and extending for a distance of
about forty miles.
7. The
said several agreements, including the one in question, were
shortly after they were taken, assigned and transferred by
the said Hugh B. Wick to...
