Young v. Ellis.1

• Decision Date: 04 April 1895
• Citation: 21 S.E. 480,91 Va. 297
• Parties: YOUNG et al. v. ELLIS.1
• Court: Virginia Supreme Court

21 S.E. 480

91 Va. 297

YOUNG et al.

v.ELLIS.¹

Supreme Court of Appeals of Virginia.

April 4, 1895.

Mining Lease—What Constitutes—Nonpayment of Rent—Effect—Bad Faith of Lessor.

1. The owners of land granted to another the right to enter thereon to test and search for minerals and oil, and to mine and quarry thereon, the second party to have the right to erect buildings and machinery for work in mines, and to pay $25 per year if minerals were not mined, and to pay a royalty on all ores shipped. The instrument was termed therein a "lease, " and was to continue for 99 years. Held, that it was a lease, and not a revocable license.

2. It is proper to give the lessee of a mine an extension of time in which to pay the rent, when it appears that he has frequently attempted to pay it, and the lessor has intentionally eluded him.

Appeal from circuit court, Franklin county Proceeding by Armstead Young, Jr., and wife against J. D. Ellis to cancel a mining lease. From a decree for defendant, plaintiffs appeal. Affirmed.

Anderson & Hairston and Dillard & Lee, for appellants. Dennis & Saunders, for appellee.

CARDWELL, J. By an indenture dated March 11, 1889, but executed July 8, 1889, and recorded in the clerk's office of Franklin county court, July 30, 1889, Armstead Young, Jr., and Abagail, his wife, appellants, in consideration of one dollar in hand paid, and the covenants and agreements of J. D. Ellis, of Philadelphia, Pa., appellee, contained in the indenture, granted to Ellis "the right and privilege of entering upon" a tract of land belonging to Young's wife, situated in Franklin county, Va., containing seventy acres, and fully described, "for the purpose of examining, testing, and searching for min-erals and fossil substances of every nature and kind whatsoever, and petroleum oil, and of excavating, examining, mining, and quarrying for paving stones or any of the above-named and described substances or minerals, " and "to such an extent as Ellis might desire, either in prosecuting and searching for minerals and stones, or in opening, boring, or working such mines as he may discover upon the land or any part thereof"; Ellis to have the right "to erect and maintain such buildings and machinery and fixtures as may be necessary to sufficiently work said mines, including any and all kinds of improved machinery and methods, " etc.; "and also the use of timber lands and water necessary and requisite in working the same; and also the right of ingress and egress to any mine or mines discovered on the lands"; Ellis agreeing on his part to pay Young and wife "$25 per year, and, in the event the said minerals are not actually mined, said rental of $25 to be credited on the royalty herein specified whenever actual mining commences"; and, further, to pay Young and wife "ten cents per gross ton for all the ores mined and shipped from said lands quarter yearly, and at the end of each quarter during the existence of this lease, or the time under which the mines shall be worked, and for the use and rent of said lands"; and he further covenants and agrees that he will not commit or permit any unnecessary damage to the land, etc. The indenture contains these further provisions: "And it is further agreed that this lease is to extend and continue for the period of ninety-nine years from the date, provided the party of the second part pays the amount hereinbefore agreed to be paid, and at the time or times agreed to be paid, and in default of which this lease and agreement shall be void; and the party of the first part may re-enter into the possession of said lands and premises, and the whole thereof, and remove and eject the party of the second part, and all persons claiming under and through him, therefrom; and, if not worked for—— years, this lease is void;" and in consideration of the premises, and of one dollar to Young and wife paid, they further covenanted and agreed to and with Ellis, his heirs and assigns, that they would at any time within five years from the date of the indenture sell and convey to Ellis or his assigns the lands, together with the buildings and improvements thereon, at the price of $1,000. This paper is signed, sealed, and acknowledged by Young and wife, but not by Ellis.

At the rules held in the clerk's office of Franklin county circuit court on the third Monday in April, 1802, Young and wife filed their bill of complaint against Ellis, setting out the making and execution of the indenture above referred to, which they call a "lease, " and charged that Ellis had not as yet commenced mining upon the land, nor paid complainants 10 cents per gross ton for any ore, and had not paid them the $25 as he promised to do until actual mining commenced, and had not released to complainants the said deed of lease, but that it still remained as a cloud upon their title to said tract of land; and further charged that Ellis had never taken possession of the land by virtue of the lease, —the prayer of the bill being that Ellis might be required to show cause why the lease should not be set aside and declared null and void, and that the same be set aside and declared null and void, etc.

A number of witnesses were examined on behalf of both complainants and defendant, and on October 27, 1892, the cause came on regularly to be heard by the circuit court of Franklin county upon the bill, the answer of Ellis then filed by leave, with replication thereto, and the depositions...