Massachusetts Nat. Bank v. Shinn

• Decision Date: 12 June 1900
• Citation: 57 N.E. 611,163 N.Y. 360
• Parties: MASSACHUSETTS NAT. BANK et al. v. SHINN et al.
• Court: New York Court of Appeals Court of Appeals

163 N.Y. 360

57 N.E. 611

MASSACHUSETTS NAT. BANK et al.

v.SHINN et al.

Court of Appeals of New York.

June 12, 1900.

Appeal from supreme court, appellate division, Second department.

Action by the Massachusetts National Bank and another against William H. Shinn, as administrator of William P. Shinn, deceased, and another. From a judgment of the appellate division of the supreme court in the Second department (46 N. Y. Supp. 329) affirming a judgment for defendant George B. Butler, entered on a referee's report, plaintiffs and the defendant Shinn appeal. Affirmed.

Henry W. Hayden, for appellants Massachusetts Nat. Bank et al.

Barclay E. V. McCarty, for appellant Shinn.

Prescott Hall Butler, for respondent Butler.

VANN, J.

This action was brought to foreclose a chattel mortgage given by William P. Shinn to the Sturtevant Mill Company, and by it assigned to the Massachusetts National Bank. The mortgage covered certain engines, boilers, dynamos, and other machinery belonging to a mining plant, erected pursuant to the provisions of a lease of part of a farm for mining purposes, which required the lessee to mine and ship at least 10,000 tons of iron ore each year, and to erect such buildings and provide such machinery as would enable him to do so. After the lessee and his assignee had been removed from possession of the premises by summary proceedings under the statute for nonpayment of rent, the landlord refused to surrender possession of the machinery in question, and claimed to own the same. The substantial issue, which related to the ownership of such machinery, was decided by the referee before whom the action was tried in favor of the landlord, and the judgment entered accordingly was affirmed by the appellate division, one of the justices dissenting.

We think that all of the questions argued in the appellate division were properly disposed of by the prevailing opinion in that court, which we should adopt without writing one of our own were it not for the fact that a new question was discussed before us, to which the attention of the courts below was not called. Bank v. Shinn, 18 App. Div. 276,46 N. Y. Supp. 329. It is now claimed for the first time that said lease, being for the term of 20 years, was a violation of that provision of the constitution which prohibits a ‘lease or grant of agricultural land for a longer period than twelve years, * * * in which shall be reserved any rent or service of any kind.’ Const. 1846, art. 1, § 14; Rev. Const. art. 1, § 13. As this question was not presented by the pleadings, or at the trial, or on the intermediate appeal, the respondent insists that it is not properly before us for consideration. Inasmuch, however, as it is covered by the exception to the report of the referee, though not specifically mentioned, and touches the settled policy of the state with reference to a subject of such importance as to be embedded in the constitution, we think it our duty to decide it. Where an appeal involves a question of grave public policy, the people are indirectly parties to it, and their interests should be looked after by the courts, even when the party who might have objected is silent.

In October, 1890, the defendant Butler owned a farm of more than 300 acres in the county of Westchester, in one part of which an iron mine had been discovered, and it was supposed that the ore extended for some distance under the adjoining lands. On the 21st of Cotober, 1890, he executed the lease in question, which recites as the object thereof that ‘the lessee is desirous of acquiring the exclusive right and privilege, upon the payment of certain royalties hereinafter reserved, to mine and ship iron ore from the said property.’ The granting clause followed, whereby the lessor conveyed to the lessee for the term of 20 years ‘all the iron ore (together with the exclusive right to mine the same) contained in, on, or under all that certain piece or parcel of land,’ which was thereupon described by metes and bounds. The land thus described consisted of 144 acres of said farm, excepting a piece of uncertain dimensions, and of no apparent importance. After the granting clause was the following statement: ‘The said ore is supposed to be contained in the hill known and designated as the ‘Clover Hill,’ but, in any event, is to be taken to include all the iron ore that can be economically mined or taken out of the above-described premises, together with all the necessary rights and privileges of entering into and upon said lands and searching for, exploring, excavating, digging, and carrying away said ore, and of removing said ore through or out of any shafts, slopes, or tunnels which the lessee may dig, erect, or construct upon said premises, at his discretion, in the conduct of said operations of mining.' The lessor further granted, during the term of the lease, the right of way for all necessary railroads, wagon roads, tunnels, etc.; the right of washing ore on said premises, of sinking wells, and using the surface waters for that purpose. There was also demised to the lessee ‘all land within the above-described premises that he may require for the purpose of erecting such buildings and machinery as he may deem necessary for the prosecution of his business of mining, together with land for piling ore or waste, * * * and for the erection of workmen's dwellings, and * * * the right to take without charge, by quarrying or otherwise, from said land, all the stone, earth, or other...