Pendill v. Union Min. Co.

• Decision Date: 13 January 1887
• Citation: 64 Mich. 172,31 N.W. 100
• Court: Michigan Supreme Court
• Parties: PENDILL and others v. UNION MIN. CO. and others.

31 N.W. 100

64 Mich. 172

PENDILL and others v. UNION MIN. CO. and others.

Supreme Court of Michigan

January 13, 1887

Appeal from circuit court, Marquette county.

Bill to remove cloud from title and for injunction.

F.O. Clark, for respondents, Pendill and others.

Ball &amp Hanscome, for appellants, Union Min. Co. and others.

SHERWOOD J.

The bill in this case is filed by the complainants, who are the heirs of James P. Pendill, deceased, against the defendants to remove a cloud from the title of some mining property described in the bill, situated in the county of Marquette and to restrain by injunction the removal by the defendant of machinery from the mine, which had been previously leased to John Burt, with the land containing the same. The mine had been opened and worked when the lease was given by Mr Pendill and wife to Mr. Burt. The lease evidently contemplated the discovery of ore at other places on the leased land, and that it should be opened and mined. The lease was made on the first day of May, 1880, and was to continue 19 years and 8 months, and was to be in force that length of time, provided John Burt, his representatives or assigns, should pay to James P. Pendill, or his representatives or assigns, 50 cents per gross ton as a royalty for each and every ton of 2,240 pounds of iron ore mined and shipped or carried away from the land in question. It is further provided in the lease that John Burt, his representatives or assigns, should pay to James P. Pendill, his representatives or assigns, at least $2,000 per annum in each and every year, as a royalty or rental, irrespective of the amount of ore that should be mined, and whether the ore actually mined, at the rate of 50 cents per ton royalty, would equal that amount or not. It was also agreed that John Burt, his representatives or assigns, should, on the fifth of each month, report to Pendill, his representatives or assigns, the full amount of ore mined and carried away from the land during the previous month, and that he should at the same time pay for the iron ore so mined at the rate mentioned. It also appears from the lease that it was agreed that said Burt, and his representatives or assigns, should pay all taxes, general and special, that should be levied upon said property during the continuance of the lease. And the lease also provides that if Burt should fail to pay the said royalty as specified, or any part thereof, or should be behind in his payments, according to the terms specified, "for the space of ten days thereafter, or in case of the non-performance of any of the covenants made by the said Burt, then, and from thenceforth, it shall and may be lawful for the said Pendill, his heirs and assigns, into the said demised premises, or any part, in the name of the whole, without any previous notice whatever, to re-enter, and the same to have again, repossess, and enjoy."

Mining operations were carried on under this lease for a time by individuals. After the Union Mining Company was organized, and on the sixteenth day of December, 1880, the lease was assigned to it, and the defendant carried on the mining business on the leased property until February, 1883. The mining business was then suspended by the mining company. At the time of the suspension, the mining company gave a chattel mortgage on the mining tools, engine, etc., to Richard Bryant, in trust, to pay employes of the company to the amount of $5,192.47. Hiram A. Burt was the president and manager of the company at that time. On the twenty-first day of June, 1883, the property covered by the Bryant mortgage was sold, at public sale, to Sarah B. Burt, wife of Hiram A. Burt, for the sum of $2,000. On the ninth day of February, 1883, the company gave a mortgage on their leasehold interest to one Henry Merry, as trustee, to secure the sum of $5,000; and upon the first day of September, 1883, the company executed to Matthew H. Maynard, as trustee, notes amounting to $50,000, secured by mortgage upon this same leasehold interest. Both Maynard and Merry, as trustees, are made defendants in this case. The property was all kept on the leasehold premises.

Sarah B. Burt claims the right, through Hiram A. Burt, to remove the property purchased at the chattel-mortgage sale, and also the right to remove the engine and hoisting drums placed by Mr. Pendill at the mine upon the property, before the lease of the property was made; and Mrs. Burt was made a defendant, that she might be enjoined from making such removal.

During the time the company carried on the business of mining it expended about $10,000 in equipments, and about the same amount in explorations, both in the mine and on other parts of the property, and the lessor received about $13,000 in royalties. No rent, taxes, or royalty was paid by the company after the year ending May 1, 1883, and they failed to make any monthly reports, as required by the lease, thereafter. The defendant company having ceased all mining business upon the premises, and removed the pumps and pipes out of the mine, the property presenting the appearance of having been abandoned, the lessor, James P. Pendill, went to the property, and, not finding it in the custody of any one, or any one claiming control thereof, without giving any notice to any one, took possession of the property, locked up the boiler house and engine-room, and other buildings, with all the machinery and tools therein; and, from that time to the present, he or his heirs have continued such possession. Mr. Pendill died in March, 1885, and the complainants, his widow and heirs, bring this suit.

The foregoing contains the material facts in the case. Considerable testimony was taken in open court, before Judge GRANT, who heard the cause, and rendered a decree therein declaring the leased property free and clear of all liens and incumbrances, and the lease canceled, and null and void. The decree further dismissed the bill against Sarah B. Burt, without prejudice to complainants to have their rights as against her adjudicated at law. Costs were given to the complainants against the defendant company, and against them in favor of Mrs. Burt. The Union Mining Company alone appeals.

The provisions of the lease under which Mr. Pendill proceeded to recover possession of his property, and to relieve it from the incumbrance of the lease, is found in the following clause. After stating the terms and various provisions, it says: "Provided always, and these presents are upon the express condition, that if it shall so happen that the rent above reserved, or any part thereof, or the taxes or assessments to be paid by the said party of the second part be behind and unpaid at the times or on the days above mentioned for the payment thereof, and for the space of ten days thereafter, or in case of the non-performance of any of the covenants made by the said party of the second part, at any of the times mentioned for the performance thereof, thence and from thenceforth it shall and may be lawful for the said parties of the first part, their heirs and assigns, into said demised premises, or any other part, in the name of the whole, without any previous notice whatever, to re-enter, and the same to have again, retain, repossess, and enjoy, and the said parties of the second part, its successors, and all...