State Ex Rel. Boswell v. Haymond

• Decision Date: 07 October 1919
• Docket Number: (No. 3940.)
• Citation: 100 S.E. 493
• Parties: STATE ex rel. BOSWELL. v. HAYMOND, Circuit Judge.
• Court: West Virginia Supreme Court

100 S.E. 493

STATE ex rel. BOSWELL.
v.
HAYMOND, Circuit Judge.

(No. 3940.)

Supreme Court of Appeals of West Virginia.

Oct. 7, 1919.

(Syllabus by the Court.)

Mandamus by the State, on the relation of Thomas T. Boswell, against Hon. Wm. S. Haymond, Judge, etc. Peremptory writ awarded.

Martin & Seibert, of Martinsburg, and Sperry & Sperry, of Clarksburg, for relator.

John J. Coniff, of Wheeling, H. S. Lively, of Fairmont, and Austin V. Wood, of Wheeling, for respondent.

LYNCH, J. In the chancery cause of Howard A. Oberman, trustee, against Red Rock Fuel Company and others, brought to this court by Thomas T. Boswell, a defendant therein, upon appeal from a decree of the circuit court of Marion county, decided here March 4, 1919 (99 S. E. 66), there was involved the inquiry whether Boswell was entitled to demand and have executed to him by Red Rock Fuel Company a coal-mining lease upon certain parcels of its coal properties, possession of which he took with the acquiescence, knowledge, and consent of the company, but which subsequently was taken from him by an interlocutory order entered in the cause and delivered to George De Bolt, receiver, about January 22, 1916, where such possession remained at the date of the

[100 S.E. 494]

decision rendered by this court upon the appeal.

This right to demand the execution of a coal-mining lease Boswell introduced into the cause for the first time by his answer to the bill filed by Oberman, trustee, in the nature of a cross-bill, setting up new matter and predicating his right to a lease thereon. The right so asserted by him grew out of negotiations conducted between himself and the officers and agents of the Red Rock Fuel Company in the city of Baltimore on or about the 1st day of October, 1915, and as a result of which negotiations, as he contends, a provisional agreement was arrived at by the parties then so assembled, whereby the company granted him the right to enter upon the land at once and begin operations thereon, and bound itself to execute to him upon certain terms and conditions a coal-mining lease upon that portion of the company's properties which was the subject-matter of the agreement, one of the terms of which was that the contract was to be effective as of the date last mentioned, and he was to pay for the coal mined and removed therefrom at the rate of 11.2 cents per ton during the life of the contract, with the usual provision concerning payment of an annual minimum royalty.

Upon the hearing of the cause...