Mickle v. Douglass

• Decision Date: 06 September 1888
• Citation: 75 Iowa 78,39 N.W. 198
• Parties: MICKLE ET AL. v. DOUGLASS ET AL.
• Court: Iowa Supreme Court

75 Iowa 78

39 N.W. 198

MICKLE ET AL.

v.DOUGLASS ET AL.

Supreme Court of Iowa.

September 6, 1888.

Appeal from district court, Monroe county; E. L. BURTON, Judge.

Action by the firm of J. Mickle & Co. against Archie Douglass, administrator of Aaron Hicks, deceased, William Hicks, and Martin Hicks, upon a lease granting the right to mine coal. Plaintiffs seek to recover damages for the breach of an implied covenant for quiet enjoyment, and also to recover the value of certain buildings erected on the premises, which the defendants converted to their own use. Trial to the court, and judgment for defendants. Plaintiffs appeal.Lafferty & Morgan, McNett & Tisdale, and Anderson & Anderson, for appellants.

Henry L. Dashiell and H. W. Gleason, for appellee Martin Hicks. T. B. Perry, for appellees Douglass and William Hicks.

SEEVERS, C. J.

1. A sufficient statement of the material facts applicable to the first point determined, we think, is the following: The defendants, or those under whom they claim, owned certain real estate, which was underlaid with coal. Works had been erected, a shaft constructed, and coal mined, when the defendants leased said works and all property on the premises used for mining coal to the plaintiffs, together with the right to mine coal, for which the latter agreed to pay royalty for all coal mined. The plaintiffs, under the lease, had no right to the surface except so far as was necessary for the due prosecution of the mining right. Over the premises so leased a railroad had been constructed, and was being operated at the time the lease was executed. The plaintiffs, upon making the attempt to mine the coal under the railway company's right of way, were enjoined from so doing at the instance of such company. For the purposes of this case it must be conceded such injunction was rightfully issued, and bound all parties to this action. But the plaintiffs claim that under the lease they had the right and were bound to mine all the coal underlying the leased premises, including that under the right of way; and as appellants have been deprived of such right, they have been greatly damaged. The lease provides and grants to the plaintiffs the right to mine “all the coal” under certain described premises. The contention of the appellees is that such right was subject to an implied covenant on the part of the “lessees that they, in mining the coal from under the right of way, shall do so with due regard to the rights of the owner of the surface, and leave all needed subjacent supports.” The railway company, for all practical purposes, owned the surface, and the defendants the coal thereunder. The right to mine this coal was granted to the plaintiffs, and the question is, what is the extent of such right, or what does it include? In the absence of a contract to the contrary, the right to mine coal underlying the surface of land is subject to an implied covenant that only so much of the coal can be removed as can be obtained without injury to the superincumbent soil or surface. In other words, as there are two estates, the right to mine is regarded as the servient estate, and can be enjoyed to such extent as will not cause injury to the dominant estate or surface. It is therefore incumbent on the owner of the mining right to leave coal sufficient, or otherwise support the surface. The authorities cited by counsel for appellees support this view, and none have been cited by counsel for appellants that conflict therewith. The authorities cited are Wood, Landl. & T. § 575; Jones v. Wagner, 66 Pa. St. 429; Horner v. Watson, 79 Pa. St. 242; Coleman v. Chadwick, 80 Pa. St. 81; Marvin v. Mining Co., 55 N. Y. 538. Such being the rule in the absence of a contract, a construction of the provisions of the lease is required. All the coal under the land was granted to the plaintiffs; that is, under the lease the right to mine and remove it was granted to the plaintiffs, subject, however, to an implied covenant that sufficient support must be left so as not to materially injure the surface or dominant estate. There is not, we think, anything in the lease which will deprive the owner of the dominant estate of such covenant, nor did the lessors, in defining the right granted, use language which, expressly or by implication, shows that such covenant could not or did not exist. In addition to what has been said, the lease provides that it shall continue 15 years, unless “all the coal in said land is sooner mined out and exhausted. But it is expressly agreed that said lease shall terminate whenever all coal under said land is mined out and exhausted.” The proper construction of these provisions is that the lease shall continue for the stated time, unless all the coal is mined which can be taken out without injury to the dominant estate. There is no language used which forbids this construction, and, under the authorities above cited, we think language used upon which the claim of appellants is based should be clear, certain, and free from serious doubt. It was adjudged in the case in which the injunction was issued that the coal could not be removed without injury to the surface or...