267 Pa. 15 | Pa. | 1920
Opinion by
On July 20, 1914, plaintiff, a corporation engaged in quarrying, milling and marketing green stone for commercial purposes, entered into an agreement with two of the defendants, the Eagle Metallic Copper Company and the United Milling & Smelting Copper Company (which latter was the owner of all the capital stock of the former), by which plaintiff was given rights in certain lands of the first mentioned company. These lands are not specifically described in the agreement, but, from evidence produced by defendants themselves, the court below found as a fact: “It seems clear that these two tracts [of 52 acres and 125 acres respectively, not necessary to be here more fully described] are the lands which were the subject-matter of the lease.” This finding was not excepted to, and it must now be deemed conclusive of the fact.
By virtue of the agreement plaintiff entered into possession, erected a plant and other buildings, later erected two other plants, opened up several quarries, and obtained and milled green stone from both of said tracts. Still later, on September 7, 1917, the United Milling & Smelting Copper Company, with the approval of the Eagle Metallic Copper Company, entered into a written agreement with one E. Howell Mutchler, giving to him an exclusive right, for fifty years, to quarry and remove green stone from the tract of one hundred and twenty-five acres; and he, with the approval of the defendant companies, assigned all his rights thereunder to the
The assignments of error are numerous; but since in the court below, and in their paper-book here, appellants state that “the construction of the agreement [of July 20, 1914, first above referred to] is the one question involved in this litigation”; and since it was also found as a fact, not objected to, that nothing was inserted in or omitted therefrom by fraud, accident or mistake, we will from this agreement alone determine the rights of the parties.
After reciting the ownership of the property by the Eagle Metallic Copper Company, one of the parties of the first part, and the desire of plaintiff, the party of the second part, “to purchase stone located on the property ......and to have the right to mine, quarry, and crush said stone and [its willingness] to lease the property ......for the above purpose,” the agreement declares that the “party of the first part does hereby lease unto the party of the second part......so much of the land ......located......below Gladhill’s Station on the Western Maryland Railroad as may be necessary for the erection and proper maintenance of a crushing and milling plant, said land not to exceed ten acres in area, and the said party of the first part does further give unto the said party of the second part the right to quarry what is known as the ‘green rock,’ located at the head of the old tunnel, known as the ‘tapeworm railroad tunnel,’ and to obtain the said green rock from any other part of the property of the party of the first part, to be used in the plant erected on the property hereby leased, or in any other plant which said party of the second part may have now or cause to be erected during the existence of
It cannot be said the true construction of this agreement is entirely free from doubt, but since it was drawn by counsel for the defendant companies, and is their deed, all real doubts as to the extent of the grant must be resolved against them: Funk v. Haldeman, 53 Pa. 229; Grubb v. Grubb, 101 Pa. 11; Algonquin Coal Co.
If the agreement is to be construed a lease, which it repeatedly says it is, there is a presumption of a right of exclusive possession in the lessee (24 Cyc. 924, 1055; 16 Ruling Case Law 620) for it is the grant of an interest in the land and is not a mere license (Harlan v. Lehigh Coal & Navigation Company, 35 Pa. 287); and, there being nothing to rebut this presumption, the decree below would be right. If it is to be treated, in accordance with the recital, as an agreement of purchase of the green stone, this also would require an affirmance of the decree. The presence of the minimum royalty clause, with a right to take as much more as desired, coupled with the requirement of a continuous operation, bears out the contention that the agreement constituted a sale of the stone (Timlin v. Brown, 158 Pa. 606; Plummer v. Hillside Coal & Iron Co., 160 Pa. 483); and the fact that the right to take is limited to a term of years, does not make it any the less a sale: Funk v. Haldeman, 53 Pa. 229; Kingsley v. Hillside Coal & Iron Co., 144 Pa. 614; Hosack v. Crill, 204 Pa. 97.
It is not necessary, however, to rest the case upon either of these grounds, for the same result will be reached from the balance of the agreement, if we still keep in mind the above-stated principles. It gives to plaintiff “the right......to obtain the said green rock from any other part of the property” without restriction as to location or quantity of stone to be taken; and this bill only seeks to enforce that right. It is true the prior language giving the right to quarry “green rock located at the head of the old tunnel” contrasted with the expression previously quoted, would seem to suggest a possibility that the latter contemplated some other method of obtaining the green stone than by quarrying it;
The fact that other plants were to be erected and no location was provided therefor, in itself enforces the thought that the exclusive grant was not limited to the green stone near the head of the tunnel; and this conclusion is also rendered probable by the further fact that the lease reserved to the lessor all other “mineral bearing rock of commercial value,” and the unshipped “material or refuse” from the mills, which, under the maxim expressio unius est exclusio alterius, “is significant of an intention to exclude” the reservation of any of the green stone on the property: Lehigh & Wilkes-Barre Coal Co. v. Wright, 177 Pa. 387, 395.
It was also urged that the parties had themselves construed the agreement in the way claimed by appellants, and hence this construction should be followed by the (courts: Gillespie v. Iseman, 210 Pa. 1; McMillan v. Titus, 222 Pa. 500; Bubb v. Parker & Edwards Oil Co., 252 Pa. 26. There was, however, no such construction. The fact that plaintiff did not at once quarry all over the tract, does not operate as an interpretation of the writing, especially as the clause relating to payment contemplates that quarrying shall at first be done at but one place. With at least as much force it may be said the construction of the parties was antagonistic to appellants, because they made no attempt to take green stone until after plaintiff located quarries and plants elsewhere than at or near the specified ten acres. By neither of these delays, however, was there any interpretation of the agreement.
Neither in the paper-book nor in the oral arguments made for appellants, was the form or scope of the final decree objected to, but it is assigned as error, and an inspection thereof shows it is not limited as to time. It should not extend beyond the period fixed by the lease, and hence it is modified so as to read as follows: “And now, January 17,1919, this cause having come on to be heard, upon consideration thereof, it is adjudged, ordered and decreed that the defendants, and each and every of them, except the Blue Mountain Stone Company, and the lessees and assigns of each and every of them and the employees and agents of any and all of them, be and they hereby are enjoined until July 20, 1924, — if the agreement of July 20, 1914, between plaintiff and the
The decree of the court below as thus modified is affirmed and the appeal is dismissed at the costs of appellants.