Pollak v. Stouts Mountain Coal & Coke Co.

• Decision Date: 20 November 1913
• Citation: 184 Ala. 331,63 So. 531
• Parties: POLLAK v. STOUTS MOUNTAIN COAL & COKE CO. et al.
• Court: Alabama Supreme Court

63 So. 531

184 Ala. 331

POLLAK v. STOUTS MOUNTAIN COAL & COKE CO. et al.

Supreme Court of Alabama

November 20, 1913

Appeal from Chancery Court, Cullman County; W.H. Simpson Chancellor.

Suit by Ignatius Pollak against the Stouts Mountain Coal & Coke Company and others. From an order sustaining a demurrer to a portion of the bill, complainant appeals. Reversed and remanded.

J.B Brown, of Cullman, for appellant.

A Latady, of Birmingham, for appellees.

MAYFIELD J.

Appellant, as lessor of a coal mine, filed this bill against appellee as lessee. The coal was to be mined by appellee, under a written lease made an exhibit to the bill, and the lessor was to receive a royalty of 6.5 cents per ton for the coal mined thereunder. The lessee was to keep an accurate account of the coal mined, and was to settle monthly for all coal mined during the preceding month. The lessee was also to have made, at least once a year, accurate surveys and plats of the land so mined, showing the territory mined, and these books and maps and surveys were to be kept open for the inspection of the lessor. The lessee also agreed that it would, with all convenient speed, proceed to develop the coal on the premises leased, and to prosecute the removal of the same from the mine as rapidly as its business would justify; and that it would conduct its mining operations in a good, businesslike manner, with a view to extracting the largest tonnage from the premises and to the preservation and protection of the underground ways in the event it should not exhaust the coal deposit during the term of the lease. The bill alleges that the lessee entered upon the performance of the lease, and mined large quantities of coal from the land leased, but that it had wholly failed to perform the covenants above mentioned, as paying for the coal mined, keeping books showing the quantity mined, making surveys, etc. The bill seeks an accounting as for the amount due the lessor under the lease, and incidentally the damages suffered in consequence of the lessee's breach of the covenants contained in the lease; and, to the end or in aid of the accounting, it seeks a discovery of the facts necessary to the proper prosecution of the suit. The respondent demurred to the original bill, and also filed thereto a special plea setting up a release by the complainant of all its claims for royalties, damages, or other relief prayed in the bill. The complainant thereupon amended his bill by adding the averment that the release set up in the plea related to other and different lands and leases, and not to the lands and the lease involved in this suit. To the amended bill the respondent demurred, interposing the same grounds of demurrer which were interposed to the original bill, and adding thereto other grounds. A hearing was had, by agreement, on the amended bill. The chancellor sustained the demurrer to certain parts or paragraphs of the bill, but overruled it as to other parts and to the bill as a whole. The opinion and decree of the chancellor, on that hearing, so far as material to the issues involved on this appeal, was as follows: "The court is of the opinion, and so adjudges and decrees, that the demurrer to paragraph 4 of the original bill, making objections thereto upon the ground that the obligation resting on the respondent, the Stouts Mountain Coal & Coke Co., to keep open the entries referred to was only in the event the said coal company exercise an option to it given to terminate the said lease by notice in writing, and it appears that no such termination of said lease took place, is well taken. And also the demurrer to so much and such parts of the bill as seeks to hold the respondent coal company responsible for the tram track and irons laid in said mine on complainant's property is likewise well taken. And also that the demurrer to the bill, or such portions thereof as seek to hold the respondent coal company liable and responsible for the alleged failure to mine all the coal in the lands the bill describes is likewise well taken. All other demurrers to the original and amended bill are not well taken. It is therefore ordered, adjudged, and decreed that said demurrers of respondent be and the same is hereby sustained and the complainant allowed 30 days from the adjournment of this term of the court to amend the bill as he may be advised, and the cause is hereby continued." From this decree complainant prosecutes this appeal, assigning all appropriate errors.

It is axiomatic that on submission on demurrer the averments of the bill which are well pleaded must be taken as true; and no doubt the chancellor so treated the averments of the bill in this case. But we are inclined to the opinion that the chancellor erred in sustaining the demurrer to the paragraphs and parts of the bill shown by his decree and opinion. If the demurrer had been...