Saulsberry v. Saulsberry

• Decision Date: 02 February 1915
• Citation: Saulsberry v. Saulsberry, 162 Ky. 486, 172 S.W. 932 (Ky. Ct. App. 1915)
• Parties: SAULSBERRY v. SAULSBERRY.
• Court: Kentucky Court of Appeals

172 S.W. 932

162 Ky. 486

SAULSBERRY v. SAULSBERRY.

Court of Appeals of Kentucky.

February 2, 1915

Appeal from Circuit Court, Carter County.

Action by Elizabeth Saulsberry against John M. Saulsberry. From a judgment for plaintiff for insufficient relief, she appeals. Reversed and demanded.

S. S Willis and R. D. Davis, both of Ashland, for appellant.

H. R Dysard, of Ashland, for appellee.

CLAY C.

William Saulsberry was the owner of about 1,000 acres of land surrounding the town of Aden, in Carter county. On December 29, 1896, he conveyed the land to his two sons Raymond H Saulsberry and Harry Saulsberry by a deed which contained the following provision:

"That if Elizabeth Saulsberry, the wife of William Saulsberry, should outlive said William Saulsberry, that she has the right to control her house and household goods, and her garden and yard, and Elizabeth Saulsberry is to receive one-half of all rents from off the place, from all resources whatsoever, so long as she remains the widow of William Saulsberry, and has the right to assist the boys in renting and collecting rents on said land."

William Saulsberry died April 29, 1899. On the land in question were certain coal and clay mines, and 10 or 12 small houses. In 1905 John M. Saulsberry leased the mines and operated them on a royalty basis until the year 1909, when he purchased the interests of his brothers, Raymond and Harry, in the land in question. Since that time he has been operating the mines.

This action was brought by Elizabeth Saulsberry, widow of William Saulsberry, and mother of John M. Saulsberry, against the defendant, John M. Saulsberry, to recover one-half of the rents, royalties, and proceeds of timber sold since John M. Saulsberry acquired title. The case was transferred to equity and tried by the chancellor. The chancellor held that the deed did not cover royalties or timber, and gave judgment in favor of plaintiff for only one-half of the rents from the houses on the land. From that judgment plaintiff appeals.

The principal question to be determined is whether or not the words "rents from off the place, from all resources whatsoever," include royalties from mines. The evidence leaves no doubt that the grantor, William Saulsberry, knew of the existence of the mines, and that these mines were worked prior to his death, though the evidence for defendant tends to show that after he purchased the mines he made new openings on the land. The word "rent" is variously defined as:

"The profit or return, reserved, payable periodically, but not necessarily immediately, if it issues from period to period, during the whole continuance of the grantee's estate, whether from year to year, or from month to month, etc. This will constitute the reservation a rent." 2 Blackstone, 41.

"A certain profit issuing yearly out of lands and tenements corporeal." Black's Law Dictionary, p. 1022.

"The compensation, either in money, provisions, chattels, or labor, received by the owner of the soil from the occupant thereof." Shartenberg & Robinson v. Ellbey, 27 R.I. 414, 62 A. 979; 3 Kent. Com. 460.

"A rent is a right to a certain profit issuing annually, or periodically, out of lands and tenements, corporeal, the use of them, and for furniture, in retribution for the land that passes." 20 Am. & Eng. Ency. of Law (1st Ed.) p. 1035.

"The profit out of lands and tenements." 34 Cyc. 1333.

"A sum stipulated to be paid for the use and enjoyment of land." In re Roth & Appel, 181 F. 667, 104 C.C.A. 649, 31 L.R.A. (N. S.) 270.

"The consideration paid for the use of land." Brooks v. Cook, 141 Ala. 499, 38 So. 641.

"Something given by way of compensation to the lessor for the right to make use of the land demised." National Subway Co. v. City of St. Louis, 169 Mo. 319, 69 S.W. 290.

Royalty is a certain percentage or proportion, specifically stated or on a graduated scale according to the value of the ore, based on either the net proceeds, smelter returns, mill returns, or returns evidenced by the certificate of the United States Assay Office, or otherwise as the parties may agree upon. 27 Cyc. 710; Maloney v. Love, 11 Colo. App. 288, 52 P. 1029.

Counsel for appellee insist that the real difference between rent and royalty is that rent is the price paid for the use of a thing, while royalty is a part of the thing itself. This distinction, however, can hardly be maintained; for it was held at an early date that if--

"a man hath land in which there is a mine of coals, or of the like, and maketh a lease of the land (without mentioning any mines) for life or for years, the lessee for such mines as were open at the time of the lease made may dig and take the profits thereof. But he cannot dig for any new mine that was not open at the time of the lease made, for that would be adjudged waste." Coke, Littleton, 54b; Clegg v. Rowland, L. R. 2 Eq. 160, 35 L. J. Ch. 396, 14 L. T. Rep. N. S. 217; Saunders Case, 5 Coke, 22.

There the rent paid carried with it something more than the mere use. It was also compensation for the profits of the open mine. And in Indiana Natural Gas & Oil Co. v Stewart, 45 Ind.App. 554, 90 N.E. 384, it is said that the word "royalty," as used in a gas lease, generally refers to "a share of the product or profit reserved by the owner for permitting another to use the property." In Kissick v. Bolton, 134 Iowa 650, 112 N.W. 95, it is said that the word "royalty," as employed in a coal mine lease, means a share of the profit reserved by the owner for permitting the removal of the coal, and is in the nature of rent. Though it may be conceded that "royalty"...