Petroleum Co. v. Coal, Coke & Mfg. Co.

• Citation: 18 S.W. 65,89 Tenn. 381
• Parties: Petroleum Co. v. Coal, Coke & Manuf'g Co.
• Decision Date: 07 November 1890
• Court: Tennessee Supreme Court

18 S.W. 65

89 Tenn. 381

Petroleum Co. v. Coal, Coke & Manuf'g Co.

Supreme Court of Tennessee.

November 7, 1890

Appeal from chancery court, Campbell county; H. R. Gibson Chancellor.

Action by the Petroleum Company against the Coal, Coke & Manufacturing Company to recover the possession of land. Bill dismissed. Complainant appeals. Affirmed.

Lurton J.

Early in 1865 Thomas H. Calloway and John R. Branner and their associates obtained mineral leases upon a large number of tracts of land, aggregating 100,000 acres. These lands were owned by many different owners. The leases were to run for 99 years, and in all essential respects were identical in terms. The complainant is a corporation, and by assignment is now the owner of these leases. The defendant is likewise a corporation, and by purchase has become the owner in fee of several of the tracts of land on which mineral leases are held by the complainant. More than seven years before the bringing of this bill the defendant, upon one of its separate but adjacent tracts, opened up the very valuable coal mines widely known as the "Jellico Coal Mines." The coal-pits and workings of defendant are exclusively upon one of its tracts; and this tract complainants do not sue for doubtless deeming the defense of the statute of limitations a bar to any suit for a mine so adversely holden. This suit is for the purpose of recovering the mines and mineral interests in and under the surface of several tracts adjacent to and surrounding the parcel upon which the shafts and pits and tunnels of defendant are situated.

Complainant insists that the suit is one of ejectment, and, as such, is a legal action, and subject only to such legal defenses as are admissible at law under the plea of not guilty. The jurisdiction of the chancery court rests upon the act of 1877, whereby jurisdiction was conferred upon that court in certain causes of action theretofore cognizable alone in a court of law. It is therefore argued that in suits to which jurisdiction was thus extended legal defenses are alone applicable, unless set up by an independent pleading, such as an original bill or cross-bill. We are not prepared to yield to this assumption, though not now decided. It is more than doubtful whether this suit could be maintained as a straight action of ejectment at law, and this for two reasons First. No coal mines or mines of any other sort have been opened upon the lands covered by the leases involved. There has been no separation of the mineral interest by deed from the fee. The contracts under which complainant sues are leases, and not deeds. An action of ejectment to recover a mine will undoubtedly lie where the mine has been opened because, in that case, the defendant, by the writ of ejectment, can be removed, and the plaintiff put in possession of the mine by putting him in possession of the shaft, pit, or opening. Says Mr. Adams, in his work upon Ejectment: "Though a man may have a right to the mine without any title to the soil, yet, the mine being fixed in a certain place, the sheriff has a thing certain before him of which he can deliver possession. When a grant of mines is so worded as not to operate as an actual demise, but only a license to dig, search for, and take metals and minerals within a certain district during the term granted, it seems that a party claiming under such a grant, and who shall open and work and be in actual possession of any mines, may, if ousted, maintain ejectment in respect of them; but he cannot maintain ejectment either in respect of mines within the district, which he has not opened, or which, being opened, he has abandoned." Adams, Ej. side p. 20. The second reason operating to defeat an action of ejectment at law upon these "leases," so called, is that complainants have never been in possession. Before entry, such an agreement as here sued upon does not operate to convey an estate, but merely confers a right thereto. The essential parts of these leases are as follows: "Witnesseth, that the said *** has this day leased unto the said Colloway and others, or their assigns, for the term of 99 years, all of his mineral and petroleum interests, for the purpose of exploring for coal, petroleum, lead, iron, copper, and other ores, metals, and minerals, and use of timber, etc., for mining, working, smelting, and rendering the same, and for such purpose, erect all necessary buildings and other apparatus and fixtures for carrying on their operations in and upon the following described parcel of land," etc. "The said Calloway, Branner & Co., for and in consideration of the above lease, obligate and bind themselves to pay to the said *** the one-tenth part of the net profits of whatever may be discovered and worked in and upon said lands deemed advisable to be tested and worked by the said Calloway, Branner & Co. or assigns. They, the said Calloway, Branner & Co., further agree to commence testing said property within three years' time." Such an agreement can only be perfected by entry, and, until possession has been taken, the right is an executory one, (called by the old law-writers an interesse termini.) Such an interest is not one which qualifies the owner to maintain ejectment. Washb. Real Estate, side pp. 295, 296; Tayl. Landl. & Ten. § 15. Such a lessee, before entry, could not maintain trespass or conversion. Id.; Austin v. Coal, etc., Co, 72 Mo. 535.

But complainant has not limited its prayer for relief to a common-law writ of ejectment, for it has most providently added the most equitable of all prayers,-one for general relief. Upon looking to the intent of...