Rees v. Emmons Coal Mining Co. of West Virginia
| Decision Date | 22 February 1921 |
| Docket Number | 4171. |
| Citation | 106 S.E. 247,88 W.Va. 4 |
| Parties | REES ET AL. v. EMMONS COAL MINING CO. OF WEST VIRGINIA. |
| Court | West Virginia Supreme Court |
Submitted February 9, 1921.
Rehearing Denied March 29, 1921.
Syllabus by the Court.
The rule of equity pleading, inhibiting departure from the subject of an original bill in an amended bill, does not forbid the introduction by amendment of what are technically known as cases or causes of action different from that set up in the original bill, but it does preclude introduction of causes of action foreign to the subject-matter of the original bill, or the act, agreement or transaction out of which it arose. Causes of action clearly germane to the subject-matter of the original bill may be introduced or added by way of amendment.
Right to an accounting for coal or other minerals, taken from land to which a plaintiff has good title by a trespasser, is germane to the subject-matter of a bill seeking an injunction to restrain such trespass, and may be united with the cause of action stated in the original bill, by an amendment thereof.
Even though an action of assumpsit is pending in a court of law for recovery of the value of the mineral so removed, an amendment to such bill, praying an accounting therefor in such suit, is permissible, and an admission in the amended bill of the pendency of such action is not tenable ground of demurrer.
Pendency of an action at law for a cause of action asserted in a court of equity cannot be set up by plea or otherwise, either in bar or in abatement of the equity suit. It merely affords ground of requirement of an election in such suit, as to which proceeding the plaintiff will dismiss.
If a bill in equity is sufficient for any relief sought thereby it is proper to overrule a general demurrer to it.
If a demurrer to a bill states several grounds or reasons for insufficiency of the bill, specifying some of its parts as being objectionable, and has been disposed of by the trial court, as a general demurrer going to the bill as a whole without objection, it will be regarded as such a demurrer in the appellate court on an appeal.
A controversy involving a claim of equitable title to real estate cannot be excluded from a court of equity merely because it involves a question of title.
Right to mine and remove coal from a tract of land, on payment therefor at an agreed price per ton, without limit restriction, or obligation as to quantities or duration, is not title to the coal in place, legal or equitable.
If, under such an arrangement effected by a verbal agreement between the owner of a tract of land and the party upon whom such right is conferred, mining operations are conducted on the land and royalties paid at the stipulated rate for several years, the possessor of such right and occupant of the mine is a tenant thereof from year to year, and cannot be prevented from proper mining in the land, by injunction or otherwise, at the instance of the landlord, until after termination of the tenancy, in some way.
A tenancy from year to year, not terminated in any of the ways authorized by law, is assignable, and an assignee thereof has the same estate and right therein as his assignor had.
In the absence of an agreement dispensing with the requirement of notice, provided by section 5 of chapter 93 of the Code (sec. 4131), a landlord cannot terminate such a tenancy against the will of the tenant otherwise than by the giving of such notice, which must be in writing and antedate expiration of the tenancy year, by at least three months, and express intention to terminate it at the end of such year.
To establish termination of such a tenancy by surrender in fact, the proof must be clear and unequivocal. An agreement to surrender, not executed, does not effect a surrender by operation of law.
A bill and an amended bill seeking an injunction restraining the mining of coal and an accounting for coal mined, on the theory of total lack of right in the defendant to mine the coal, and prosecuted to a decree in favor of the plaintiff, settling the principles of the cause, will be dismissed, on reversal of the decree, upon a finding that the defendant had right, as tenant of the plaintiff, to mine the coal and still has it, with a saving of right in the plaintiff to prosecute any proper suit at law or in equity, to obtain compensation for coal mined and not paid for, at the agreed price per ton.
Appeal from Circuit Court, Mineral County.
Suit by George S. Rees and others against the Emmons Coal Mining Company of West Virginia for an injunction and an accounting. Decree for plaintiffs, and defendant appeals. Reversed, injunction dissolved, and bill dismissed.
L. J. Forman, of Petersburg, Wm. MacDonald, of Keyser, and Conlen, Brinton & Acker and J. T. Manning, Jr., all of Philadelphia, Pa., for appellant.
Chas. N. Finnell and Taylor Morrison, both of Keyser, for appellees.
The decree brought up for review by this appeal, as one settling the principles of the cause, is predicated, for the most part, on an amended bill to which a demurrer was interposed on the ground that the matter set up in it constituted a departure from the original bill and the further ground that such matter constituted a cause of action set up in an action of assumpsit previously instituted against the defendant and pending at the date of the amendment. Other incidental or collateral allegations thereof were relied upon as grounds of demurrer. There was also a demurrer to the original bill. Overruling the demurrers, at the hearing on answers, replications, and evidence, the court entered a decree affirming the right of the plaintiff to the relief sought, and referred the cause to a commissioner for the taking of an account.
The litigation involves claims and contentions respecting title to the coal in a tract of land and mining rights therein. On the original bill, a temporary injunction was sought and obtained, inhibiting, restraining, and enjoining the defendant from mining the coal. At or about the date of the filing of that bill and the award of the injunction thereon, the plaintiff instituted an action of assumpsit for the recovery of the value of coal mined, removed, and sold. About seven months later, the defendant moved the court for a modification of the injunction order, permitting it to enter the mines and remove therefrom the rails, spikes, ties, electric wires, and other property it had placed and installed therein for mining purposes. At the same time, the plaintiffs tendered and were permitted to file the amended bill, and the defendant filed its demurrer thereto. The motion was overruled and the cause continued, but the plaintiffs were required to execute an injunction bond in the penalty of $2,000, in addition to the bond previously given in the penalty of $1,000. Answers to both the original and amended bills were filed, depositions taken, the cause submitted upon the bills, answers, replications, motions to modify the injunction and to dissolve it, and depositions taken, filed by both parties, and a decree entered as above stated.
Sufficiency of the original bill is apparent, and it may be conceded in the argument submitted, which is general and does not seem to be limited in any instance to that bill standing alone. The bill alleges perfect and complete title in the plaintiffs and a mere verbal license in the defendant to mine coal from the property, and revocation of such license, in conformity with the agreement under which it was granted. It then alleges that, notwithstanding the revocation, the defendant had continued its mining operations in the land. All of these facts, the demurrer concedes for its purposes, and no authority need be cited for the elementary and universally recognized proposition that equity will enjoin acts of trespass, working injury to the inheritance, and destruction thereof. In such cases, the legal remedy is wholly inadequate.
In so far as the demurrer to the amended bill is based upon the theory of a departure from the original bill or the making of a new case, it was properly overruled. The purposes of the two bills are closely allied. They pertain to the same general subject-matter. Each seeks vindication of the right of the plaintiffs to the coal in the particular tract of land in question. The original bill invokes a measure of protection against the severance and removal thereof. Its purpose is conservation and preservation of the remaining rights of the plaintiffs. The amended bill pursues the same general purpose. It seeks compensation for the coal already taken out. Both pleadings have the same basis or foundation, the right of the plaintiffs to the coal in question. The rule against departure in equity pleading does not preclude the introduction of a new cause of action in the technical sense of the term. Stated with fair and reasonable accuracy, it forbids only the introduction of foreign causes of action. A cause of action different from that originally set up, but allied with it and closely related to it, in subject-matter, may be added or introduced by way of amendment. Belton v. Apperson, 26 Grat. (Va.) 207, a leading case on the subject, clearly propounds this doctrine. In the opinion delivered in that case, Judge Staples, after having reviewed a number of English and American decisions, tersely stated his conclusion in the following terms:
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