Miller v. Bowen Coal & Mining Co.

• Decision Date: 25 May 1931
• Docket Number: No. 17184.,17184.
• Citation: 40 S.W.2d 485
• Parties: MILLER v. BOWEN COAL & MINING CO.
• Court: Missouri Court of Appeals

40 S.W.2d 485

MILLER v. BOWEN COAL & MINING CO.

No. 17184.

Kansas City Court of Appeals. Missouri.

May 25, 1931.

Rehearing Denied June 15, 1931.

Appeal from Circuit Court, Johnson County; Leslie A. Bruce, Judge.

"Not to be officially published."

Action by Charles W. Miller against the Bowen Coal & Mining Company. Judgment for plaintiff, and defendant appeals.

Reversed.

Charles A. Calvird, Jr., of Clinton, and Ross E. Feaster, of Windsor, for appellant.

Glen Mohler, of St. Louis, and Nick M. Bradley, of Warrensburg, for respondent.

BOYER, C.

Action to recover under the terms of a coal mining lease. The petition was filed to the October, 1929, term and contained two counts, each of which was based upon separate provisions of the contract. During the progress of the trial, plaintiff dismissed the second count. The first count alleges that plaintiff and defendant on May 25, 1914, entered into a written contract of lease by the terms of which plaintiff leased to defendant for a term of 20 years the exclusive right of mining, boring, operating, and otherwise prospecting for coal on lands described in the petition, "and by said lease it was provided that the defendant might place a switch across said lands or any part thereof, to take coal from adjacent lands, and in the event such switch was desired by defendant and was so placed for the purpose aforesaid, the defendant agreed to pay plaintiff rental for said switch the sum of fifty dollars ($50.00) per month for each month the switch was kept on said lands"; that defendant company about May 1, 1919, placed a railroad switch upon said lands or a part thereof and thereafter placed an additional switch on said land for the purpose of taking coal from the lands adjoining plaintiff, and at said time began to use said switch for said purpose and continued so to do to the time of suit, by reason of which defendant became indebted to plaintiff in the sum of $50 per month for 158 months, or the total sum of $7,900.

The answer to the first count of the petition was a general denial, and further "defendant avers that the plaintiff did not own the fee simple title to the lands described in the petition, nor any part thereof but only a life estate therein, and had no authority to make the alleged contract sued on and that the same is invalid and unenforceable." The answer also tenders the defense of limitation under the sections of the statute providing for the five and ten year periods of limitation. And avers that from the date of the lease to the time of filing of suit plaintiff made no demand upon defendant for the payment of switch rental nor gave any notice that he intended to demand such payment, and that defendant had no knowledge that plaintiff intended to make any such claim until served with summons.

The reply denies generally the allegations of the answer, and further states that at the time of the execution of the lease plaintiff was in lawful possession of the land as defendant knew, and thereafter defendant was put in possession of said land by plaintiff under the terms of the lease; that defendant continuously remained in peaceful and undisturbed possession and continued to use said land for the purposes of said lease and received the benefits of said land under said lease, and is now estopped to say that plaintiff's title is insufficient or to question the nature of his interest in said land.

The facts: The lease was made a part of the petition by reference. It was introduced in evidence by plaintiff. It bears the date given. By its terms plaintiff for himself, his heirs, executors, administrators, or assigns, in consideration of the sum of one dollar "and for other valuable considerations hereinafter specified," leased, set over, and assigned to defendant and its successors, for a term of twenty years, the exclusive right of mining, boring, operating, and otherwise prospecting for coal on certain tracts or parcels of land described. While the land is described in the lease as consisting of separate tracts, it is all contiguous and contains more than 160 acres. This body of land is about one-quarter of a mile from the highway. There was a lane or private roadway twenty feet wide leading from the public highway to this land. This lane or strip of ground was included in the description of lands contained in the lease. The lease granted the right of opening the mines and taking out coal "together with the exclusive right of way and surface use of such land as may, by said party of the second part, be deemed necessary for the economical and efficient working of the same, and upon which to erect such buildings and enclosures as may be needed and desired by said party of the second part in working said lands." Then follows this provision: "Provided that in the event no coal is found on the above lands and a switch is desired across all or a part of said lands to take coal from adjoining lands the said second party shall pay a rental of fifty dollars per month, for each month the said switch is kept on said lands." Plaintiff was party of the first part and defendant was party of the second part. The second party was required to pay a royalty of ten cents per 2,000 pounds. Another paragraph is the following: "It is also agreed and understood that if the parties of the second part fail to operate, work or prospect said described lands by May 25th, 1916, then they shall pay the said first party a penalty of fifty dollars per month from May 25th, 1916, until royalties amount to that much, and failure to pay same, this lease shall be forfeited and become null and void." Another paragraph of the lease, and the one upon which the second count of the petition was based, is in these words: "In the event the coal on said lands becomes so nearly exhausted that the royalty on the same shall not amount to as much as fifty dollars per month, the said second parties agree to pay fifty dollars per month to said first party as long as they use the shaft."

Shortly after the execution of the lease, defendant entered upon the large tract of land and made extensive exploration in prospecting for coal, but found none in a sufficient quantity to justify operation and no shaft was ever placed on the land.

Defendant also held leases upon two other tracts of land in the same vicinity, one known as the Jackson tract and the other as the Kendrick tract. The Jackson tract belonged to a sister of plaintiff and joined the Miller tract on the east side and was between it and the public highway. The Kendrick tract was south of and adjoining the Jackson tract. The roadway leading to the Miller tract was located between the Kendrick and Jackson lands. Defendant opened a mine on the Jackson tract and constructed a railroad switch which extended northwardly across the Kendrick tract, the private roadway, and the Jackson land to the mine. The switch did not touch any land included in the lease except to cross the right of way or lane leading to the Miller land. According to defendant's evidence this switch was constructed late in the fall of 1916, and according to plaintiff's evidence it was constructed about May, 1916.

Plaintiff testified that on May 25, 1916, he made demand upon defendant for switch rental, but never made any demand thereafter until the institution of his suit. Defendant's evidence on the question of demand is to the effect that a demand was made about the date last named, but that it was for the minimum royalty provided for in a quoted portion of the lease, and that the railway switch had not at that time been constructed, and that no demand was ever made at any time by plaintiff for switch rental. Defendant used the switch track so constructed to haul coal from the Jackson mine, and some years later, and in the year 1926, opened another mine on the Kendrick tract south of the roadway and constructed an additional switch track which also crossed the lane. Defendant's testimony is to the effect that at the time the second switch track was built permission so to do was obtained from Miller and he said it was all right. This evidence was not denied by plaintiff.

In the development of the Kendrick mine coal was removed under the surface of the ground covered by the roadway, and from September, 1926, to August, 1927, defendant sent plaintiff monthly statements of the tonnage of coal so mined accompanied by checks to cover the amount of royalty called for in the lease. The coal was moved out over the switch. None of the checks for any one month amounted to as much as $50. The smallest check was for the sum of $4.28, and the largest was for $35.63. Plaintiff received and held these checks, but did not cash them. In the second count of his petition, which was based upon the provision of the lease calling for the payment of $50 per month in event that royalties on coal did not amount to that much, the checks were tendered into court. This count of the petition was dismissed and the checks remained in possession of plaintiff.

The deed to plaintiff, under which he held possession and claimed an interest in the land in question, was offered in evidence, first, by defendant for the purpose of showing that plaintiff owned only a life estate in the land. On the objection of plaintiff it was for the time...