Sherwood v. Greater Mammoth Vein Coal Co.
| Decision Date | 23 November 1921 |
| Docket Number | 33839,33787 |
| Citation | 185 N.W. 279,193 Iowa 365 |
| Parties | JOHN W. SHERWOOD, Appellant, v. GREATER MAMMOTH VEIN COAL COMPANY et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 11, 1922.
Appeal from Marion District Court.--J. H. APPLEGATE, Judge.
ACTION in equity, asking for an injunction restraining defendants and intervener railway company from entering upon the premises of the plaintiff and constructing a railway track for a coal switch or road across plaintiff's premises and from operating the railway by carrying coal over said right of way and road from other lands. The trial court found for defendants and interveners, and dismissed plaintiff's petition, but rendered judgment for the costs against the defendants and interveners. The plaintiff appeals from the finding and decree in favor of defendants. The defendants and interveners appeal from that part of the judgment as to the costs.--Affirmed on plaintiff's appeal; reversed on defendants' appeal.
Instant case affirmed on the plaintiff's appeal, and reversed on the appeal of defendants and interveners.
Vander Ploeg & Johnson, for appellant.
Stipp Perry, Bannister & Starzinger, W. H. Lyon, and J. C. Cook, for appellees.
The case turns largely upon the interpretation of certain provisions in a deed, under which plaintiff, defendants, and interveners claim. Under the deed, plaintiff claims that defendants and interveners do not have the right to construct and operate the road across his land, for the purpose of hauling coal from other lands, while defendants and interveners claim that they do have such right. The allegations of plaintiff's petition, as to the ownership and that defendants and interveners were constructing and proposed to operate the road across his land, being admitted, the defendants and interveners assumed the burden. There is substantially no dispute in the evidence. The coal field which is about to be developed consists, as defendants allege, of some 3,000 acres of coal land. Near the center of this field is the Virgil Roberts land, and some lands of others. This Roberts land is between a large body of land to the east, about 1,600 acres, the coal under which and the surface rights to which were acquired some years ago by the Excelsior Coal Company, and a somewhat smaller body, of 400 acres, to the west, also acquired by the Excelsior Coal Company. That company also acquired two smaller tracks of about 200 acres, south of the intervening strip: that is, the company bought the coal and acquired surface rights in the land to the west and south. The defendant Greater Mammoth Vein Coal Company has acquired a tract west of and adjoining the intervening strip before mentioned, and adjoining on the east the west tract of the Excelsior Coal Company; also the coal, mining, and surface rights in the Roberts and other lands. The evidence shows that this last named company was organized for the express purpose of developing and mining this entire coal field, including the Excelsior Coal Company's coal and the Roberts coal. It was organized in 1918. The first suggestion to the organizers of the company as to the development of this coal field came from the Excelsior Coal Company. Pursuant to this suggestion, a lease of the Roberts land was obtained by some of the organizers, and then the company was organized. After purchasing the Roberts coal, the company purchased the Rodgers farm, of 186 acres, lying west of the Roberts land, and 67 acres of the surface and coal belonging to the Excelsior Coal Company, immediately west of the Roberts land. Thereafter, the drilling done in the coal field showed that the practical place to sink a shaft was on the Roberts land. The town of Tracy is some four or five miles east of the Excelsior lands. Defendants and interveners propose to run a coal road from the town of Tracy west through the east tract before mentioned, to the Roberts land and other lands of the Excelsior Coal Company, and others in the field to the west and south. Plaintiff's land is in the east tract of the Excelsior Coal Company property, and is situated a mile or so from the Roberts land. Defendants and interveners claim the right to cross plaintiff's land and haul coal from the west to the town of Tracy, and from there to the coal market. This much by way of preface, and to show, in a general way only, the situation.
The petition alleged that the defendant Mammoth Vein Company and defendant Shugart, having the contract for constructing the grade, had entered upon plaintiff's premises, and were engaged in the construction of a grade for the railroad. Later, plaintiff amended the petition, stating that, at the time of the trial, in October, 1919, said defendants had continued the work of grading, and that they intended to place ties and steel upon the grade, and to fence the right of way. Said defendants admitted that they were constructing a coal switch over plaintiff's land, but alleged that it was being constructed for and in behalf of the Wabash Railway Company, under authority from the Excelsior Coal Company; that this authority was originally granted by a deed from plaintiff to the Excelsior Coal Company, by which said coal company purchased the coal underlying all of plaintiff's land, and certain rights in the surface, for the sum of $ 4,440; that the deed was made in 1903, and recorded a short time thereafter. The purchase price was paid to plaintiff at the time of the execution of the deed. The coal under plaintiff's land and in the coal field was undeveloped and untouched until 1917. None of the rights under the deed had been exercised for several years, and plaintiff's land had not rendered anything for the money received. The rights conveyed in the surface, under which defendants claim they appropriated the right of way in question, are contained in Paragraph 6 of the deed, and are as follows:
"The right to appropriate and use and to authorize and cause any railroad company to appropriate and use, for railroad right of way to and from any mine or mines, the surface of said land over the coal above described and granted upon paying for such use to the owner at the time of any such appropriation of any land so appropriated over the said one hundred and six (106) acres of coal, at the rate of seventy-five ($ 75) per acre, and upon paying to the owner at the time of any such appropriation of our aforesaid interest in any land so appropriated of the aforesaid fifty-two (52) acres, at the rate of twenty-five dollars per entire acre; but the right last above mentioned is nevertheless granted upon these two express conditions: First, that any such railroad company shall properly fence its railroad upon said land and there put in all necessary cattle guards and crossings and properly maintain all thereof so long as it shall there operate its railroad; and second, that whenever any of said land appropriated as last aforesaid shall cease to be used for such railroad purposes the right lastly above mentioned shall in respect thereto wholly cease and determine."
Other rights and privileges were granted in Paragraph 2 of said deed, which reads:
"The right to drill, sink, construct and operate in and upon said land all such prospect holes, prospect shafts, air, water and hoisting shafts, and all such slopes as said coal company, its successors or assigns shall at any time deem expedient; and to have and use sufficient right of way to and from the same; but the right lastly described is nevertheless granted upon these two express conditions: First, that no hoisting shaft shall be located within forty (40) rods from said dwelling house or from said barn; and second, that the said coal company, its successors or assigns, shall properly fence and keep fenced, all parts of the premises affected by the exercise of the right last aforesaid."
Paragraph 3 grants the right to appropriate and use the surface of said land at and about any hoisting shaft; Paragraph 4, the right to use the surface of said land to the extent of one fourth of an acre at and above each air shaft and water shaft without other or further compensation; Paragraph 5, the right to dig and dump out of shafts, coal from any neighboring land, and for such purpose to use such entries under the land hereinbefore described. The Excelsior Coal Company intervened, and alleged that, during the latter part of 1902 and the early part of 1903, it purchased from the different owners (about twenty) the coal underlying their several parcels of land in a large coal field or territory, with intent to open and develop a mine or mines and market the coal; that said coal field was located in three townships in Marion County, and comprised 2,200 acres of coal lands, among which was that of plaintiff; that in each of the several deeds made by the different owners, there was included an agreement in words and figures identical with that set out in plaintiff's deed; that the coal in said field purchased by intervener consisted principally of two parts or blocks, said field being divided by coal lands in Sections 25 and 36, known as the Roberts coal field; that the coal under the Roberts land could not then be purchased by intervener, and was subsequently acquired and leased by the defendant Greater Mammoth Vein Coal Company; that it is wholly impracticable and would be entirely unprofitable to attempt to mine the coal belonging to the intervener, without having railroad facilities to transport the coal to a suitable market; that Des Moines is the nearest suitable market; and that the only railroad or railroads that pass in the vicinity of this coal field and reach Des Moines are the Wabash and...
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