Ireland v. Francisco Mining Company

• Decision Date: 11 May 1926
• Docket Number: 12,396
• Citation: 151 N.E. 700,85 Ind.App. 428
• Parties: IRELAND v. FRANCISCO MINING COMPANY
• Court: Indiana Appellate Court

151 N.E. 700

85 Ind.App. 428

IRELAND v. FRANCISCO MINING COMPANY

No. 12,396

Court of Appeals of Indiana

May 11, 1926

Rehearing denied December 10, 1926, Reported at: 85 Ind.App 428 at 433.

From Gibson Circuit Court; Walton M. Wheeler, Special Judge.

Suit by William R. Ireland against the Francisco Mining Company. From a judgment for defendant, the plaintiff appeals.

Affirmed.

Lucius C. Embree and Morton C. Embree, for appellant.

Charles O. Baltzell and Ernest R. Baltzell, for appellee.

OPINION

MCMAHAN, J.

In August, 1910, John M. Ireland, being the owner of a sixteen-acre tract of land in Gibson county, his wife Elizabeth, joining, by warranty deed conveyed the same to his son, William R. Ireland, appellant herein. The grantors reserved and retained a life estate in each of them in the land so conveyed. The following is a copy of the deed:

"This Indenture Witnesseth, That John M. Ireland and his wife, Elizabeth, of Gibson County, State of Indiana, convey and warrant to their son, William R. Ireland, of Gibson County, in the State of Indiana, as an advancement in the sum of one thousand dollars, the following described real estate in said Gibson County, in the State of Indiana, to wit: (Description of the land.)

"To have and to hold unto the said William R. Ireland in fee-simple remainder and dependent only on the expiration of the life estates hereinafter mentioned, viz.:

"(1) An estate in all said lands for and during the term of the natural life of the grantor John M. Ireland, which is hereby expressly reserved to the said John M. Ireland.

"(2) An estate for and during the term of the natural life of the grantor Elizabeth Ireland, in the event she shall survive the grantor John M. Ireland, and which estate for and during the term of her natural life, in the event she shall so survive the said John M. Ireland, is hereby expressly granted and conveyed to the said Elizabeth Ireland.

"It is further expressly provided and this deed is accepted subject to such provisions that, during the life estates hereinabove mentioned, the respective life tenants shall in turn have the right to mine and remove from said lands, in the ordinary and usual course of mining, any coal, petroleum, oil, natural gas and minerals found therein, and to appropriate and use as their own the proceeds of such mining without becoming in any manner accountable to the remaindermen for waste." The deed was signed and acknowledged by the grantors and was recorded in December, 1913.

John M. Ireland died prior to January 4, 1921, on which day, his widow, Elizabeth, entered into a written agreement with the Ayrshire District Collieries Company whereby she sold all the coal of what is known as vein No. 5, in and under said land, with the right to mine and remove the same, said collieries company agreeing to pay Mrs. Ireland four cents per ton for each ton of coal removed. The minimum amount to be paid to Mrs. Ireland each year was to be $ 500.

The name of the collieries company was later changed to Francisco Mining Company and appellant, by his complaint, seeks to enjoin the mining company from mining and removing the coal from the land so conveyed to him. To this complaint, appellee filed an answer setting up the deed to appellant and the agreement with Elizabeth Ireland and alleged that under such deed and agreement, it had the right to mine and remove the coal.

Appellant demurred to this answer for want of facts. The demurrer was overruled, and appellant excepted, and, refusing to plead further, judgment was rendered against him. From this judgment, he appeals and contends that his deed gave him the unqualified title in fee in remainder to the land therein described, including the coal under the surface thereof and that Elizabeth Ireland had no capacity by any form of conveyance to transmit to appellee title to the coal in place. This contention is stated by appellant in his brief as follows:

"After the death of John M. Ireland, the legal effect of the reservation, in the deed of conveyance to Elizabeth Ireland of the 'right to mine and remove from said lands in the ordinary and usual course of mining any coal * * * found therein and to appropriate and use as their own the proceeds of such mining, without being in any manner accountable to the remainderman for waste,' did not vest in her any greater right than she would have had as life tenant, other than the right to dig through...