Zink v. Pittsburg & Midway Coal Min. Co., 8210

• Decision Date: 08 January 1964
• Docket Number: No. 8210,8210
• Court: Missouri Court of Appeals
• Parties: Royce ZINK and LeLoie Zink, Plaintiffs-Respondents, v. The PITTSBURG & MIDWAY COAL MINING CO., a corporation, and Spencer Chemical Company, a corporation, Defendants-Appellants.

Page 158

374 S.W.2d 158

Royce ZINK and LeLoie Zink, Plaintiffs-Respondents, v. The PITTSBURG & MIDWAY COAL MINING CO., a corporation, and Spencer Chemical Company, a corporation Defendants-Appellants.

No. 8210.

Springfield Court of Appeals, Missouri.

Jan. 8, 1964.

Michael J. Bogutski, Kansas City, Stinson, Mag, Thomson, McEvers & Fizzel, Kansas City, of counsel, for defendants-appellants.

John M. Belisle, Osceola, for plaintiffs-respondents.

RUARK, Presiding Judge.

This is defendants' appeal from a judgment for plaintiffs based on a jury verdict in the sum of eight thousand dollars. We will refer to the parties as designated below.

The petition combined in one count several possible causes of action in one conglomerate mass. Too lengthy to set forth verbatim, it charged that plaintiffs gave defendants' assignors and privies two separate coal mining leases on two separate and distinct tracts of land, one of 180 acres, another of 240 acres; that in said leases defendants contracted to mine the land in a aood and workmanlike manner; that defendants drilled such land to determine whether it would be practicable and profitable to mine; that parts of said land were underlain with Tebo coal and parts were underlain with Weir-Pittsburg coal; that Weir-Pittsburg vein coal and Tebo vein coal, when mixed in proper proportions, were salable; that, as to the 180-acre tract, defendants 'warranted unto the plaintiffs' that by actual tests the land was 'coal land and would be mined complete, and plaintiffs relied upon said warranties' and tore down improvements of the value of $15,000 to enable defendants to mine said tract; and that defendants constructed, cut, and built unnecessary and unreasonable roads across said 180 and so destroyed its value but mined only 70 acres of the 180 and left 110 acres, 80 acres of which is underlain with coal, unmined; that had the defendants mined the whole 180, plaintiffs would have received therefrom in excess of $48,000 in royalties, whereas in fact they received only $20,975; and that defendants have failed and refused to mine the balance of the 180 tract.

As to the 240-acre tract, plaintiffs charge that, contrary to good workmanlike methods, the defendants cut unnecessary drainage ditches on 70 acres of unmined land so as to destroy the value of such unmined portion of the 240-acre tract. The prayer was for $60,000 actual and $15,000 punitive damages.

On the taking of evidence, the plaintiffs, among other things, introduced evidence as to quantity of unmined coal left on the 180 tract and computations showing the expected royalty which could have been derived based on the royalty fixed in the written lease. According to plaintiffs' witness Crockett, approximately 80 acres, said to have been underlain with Weir-Pittsburg coal, were not mined. On cross-examination, he left the amount of this unmined coal acreage somewhat in doubt. Computing royalty at fifteen cents per ton, he calculated the to-be-expected royalty at $283.80 per acre; for the unmined portion $22,704. As to this 180-acre tract, plaintiffs submitted and the court gave instruction numbered two, which is as follows:

'The Court instructs the Jury, that if you find and believe from the evidence herein, that the officers, and agents of the defendants or the officer, and agents of their predecessors, companies, did contract and agree with the plaintiffs herein, that prior to the laying out of truck road, and drainage ditches, on that portion of the 180 acres tract, underlain with Weir-Pittsburg Coal, given and described in evidence that test pitts would be dug and test made of the Weir-Pittsburg Coal under said tract, and if you further find and believe that the defendants, or their predecessor companies did run said test, and did advise the plaintiffs that they would mine, and take under their lease, the Weir-Pittsburg vein of coal under said land, if you so find, and if you further find and believe from the evidence that thereafter the plaintiffs did authorize the defendants to lay out and construct drainage ditches, and truck roads across that portion of the 180 acre tract so underlayed with Weir-Pittsburg Coal, and did remove and tear down valuable improvements located thereon, in reliance on the defendants' agreement to mine and take said coal, if you so find and if you further find that the defendants did mine only a portion of said 180 acres tract underlayed with, Weir-Pittsburg Coal, and then did abandoned and refused to mine the whole of said tract, if so, then you are instructed that your verdict must be for the plaintiffs, and you will award them such damage therefor as you may find and believe from the evidence, they were damaged, thereby on this count, of their petition.'

By defendants' instruction numbered eight, the court told the jury they could not award damages for roads or ditches on the 180-acre tract, and by defendants' instruction numbered twelve, the jury were instructed that defendants were not required to mine unmerchantable coal.

As to the 240-acre tract, plaintiffs submitted on failure to mine in a workmanlike manner by cutting and constructing unnecessary roads and ditches. We will return to this 240-acre tract later herein.

Plaintiffs' measure of damages instruction was as follows:

'The court instructs the jury that if you find the issues in favor of the plaintiffs then you will award them such sums in damages as you find and believe from the evidence they have suffered all to be stated in one lump sum.'

The two leases involved are too lengthy to set forth here but are substantially as follows: Plaintiffs leased to defendants' predecessors and alleged privies with 'the right to prospect said premises for coal and to mine and remove by strip, surface or open face mining, quarry, shaft, slope, drift, or any other method of mining the coal on, in and underlying said premises, and to store, prepare for selling and sell said coal.' Right of ingress and egress was granted. The leases extended for fifteen years and so long thereafter as coal 'is' being produced in paying quantities ¹ from said premises. Lessee was granted the right to use so much of the surface of said premises as may be required, necessary, or convenient for any and all purposes incidental to or connected with the prospecting, mining, removal, preparation, and selling of said coal, with right in the lessee to transport said coal to or from adjoining, nearby lands. Also granted was the right to make excavations, to divert water courses in any manner lessee might deem necessary or convenient, together with the right to drain and transport water from any pit working place over or through the premises. It was further provided that such leases might be worked in conjunction with other lands, in connection with which lessee was granted all necessary or convenient rights-of-way for ditches, water courses and ways, and rail and vehicle transportation over the leased land, even though mining on the leased premises might have ceased. The lessors expressly waived all lateral, subadjacent, adjoining, and other support as to any and all of said premises. The only specific penalty or restriction imposed was that lessee would pay for damage done to fences or crops in prospecting for coal.

Lessee was required to pay a royalty of fifteen cents per ton on all coal mined, removed, and sold but was not required to pay any royalty on rotten, dead, or unmerchantable coal. 'Pyrites' and 'sulphurs' and refuse materials removed in mining operations might be disposed of without payment of royalty. Lessee was required to conduct its operations in a good and workmanlike manner.

The tracts involved were partially underlain with a vein of what is called 'Tebo' coal. The Tebo, in general, lay fairly shallow and so was mineable by use of shovel. There had been discovered in the area a deeper vein of coal known as Weir-Pittsburg. ² Some exploration had been going on with respect to Weir. It is in respect to the failure to mine this Weir on the 180 tract which brings the claim of violation of contract. At the time of the occurrences which plaintiffs contend created a verbal contract to mine all of the Weir on the 180 tract, defendants were already mining Tebo on the (apparently adjoining or cornering) 240 tract. Weir (and also Tebo) had been discovered on the 180. Plaintiffs had a frame house, silo, and some shed buildings on the south side of the road along the north side of the 180. Plaintiff Royce Zink says that defendants had staked off five acres around these improvements with the idea that such area would not be mined. In the explorations in regard to the new and deeper vein of Weir (necessary to mine with drag line) it was found that it contained a high degree of sulphur and as such was unmarketable, but defendants decided that it might be mined and marketed by mixing it with Tebo on an approximate basis of twenty-five per cent Weir to seventy-five per cent Tebo. The defendants employed plaintiff Zink, who was engaged in construction business, had some machinery, and had been engaged in strip coal mining operations on his own, to dig a test pit at some place not clear, but probably in the northeast portion of the 180. The defendants also opened a test pit on an 80-acre tract which they had under lease immediately west of plaintiffs' 180. Samples were taken, and then, according to Zink, 'They came back and advised me that this coal would be mined, and asked me if I, then, if I wouldn't move these buildings, that they would take all this coal clear out to the highway, clear out to the public road, and that was my agreement with them, if this coal tested to where they could use it, and they did test it and advised me that it was marketable coal and that they would take the full amount from this line here clear down to here. We did not agree to take the Pittsburg-Weir vein out from under the Tebo vein.' And again, '* * * he came to me and told...