| Ala. | Nov 15, 1902
The lease upon which the plaintiffs predicate their right of recovery is simply a grant to the defendants of the right and privilege to mine all iron ore in and under the land designated therein as belonging to the plaintiff, for a period of ten years. For this right, the plaintiffs were to be compensated by a royalty of fifteen cents, to be paid to them by defendants upon every standard ton of ore mined ; the defendants obligating themselves to mine not less than one hundred tons per month. This action is to recover five months’ royalty of fifteen dollars each.
It is conceded in argument by both sides, that the important question presented is whether the defendants should be allowed to show in defense of the action that the land contained no -ore. It is insisted by plaintiffs that this cannot be done because there is no implied covenant or warranty that the land contained minerals. Doubtless it was upon this theory that the trial court sustained demurrers to the several pleas of defendants invoking this defense and excluded the testimony offered to show that fact.
We have but to call attention to the recitals of the lease to see that the payment of royalty was based upon the assumption of the parties that ore existed under the land. The grant was of the ore in place; and if the subject matter of the contract failed, the price is not payable. Indeed, it is expressly stated in the lease that the lands, designated therein as belonging to plaintiffs and which the defendants are granted the right to mine, are “supposed to contain ironore.” When this recital is taken in connection with the fact that the plaintiffs were to be compensated for the right and privilege of mining this ore, by a royalty, we do not see how it can
It will be observed that no other compensation for the right to mine the lands was stipulated for' except royalty. The plaintiffs thus hazarded their right to compensation upon the existence of ore, as did the defendants hazard the expense of making diligent search for it, as was their duty under the lease. If, however, it is established by actual and exhaustive search that at the time the com 3-act was made, there was in fact no ore in Ihe land, upon no fair and reasonable construction of the contract can the defendant be held liable for royally, flow is it possible for them to be in default in mining one hundred tons of ore monthly, if there was no ore to mine? We are not to construe the contract to require the lessees to do an impossible thing. And to require them to pay royady on ore which never had any existence and which it was not possible for them to mine, would Ik to require the impossible — to compensate the plaintiffs for a thing which they undertook to sell, but which they never owned — indeed which never had any existence. For after all, the lease was nothing more nor less, than a sale by them of iron ore, which they supposed they owned, hidden, it is time, under (lie ear ill — -a supposition also indulged by the lessees But if both uere mistaken in their supposition as to the existence of the ore, then the obligation of the lessees to mine, upon a discovery of this'mistake, was at an end as was likewise their obligation to pay royalty upon the ore to be mined. Similar leases have beeii construed by other courts and the principles we announce nave been applied and the point under consideration expressly decided.—Muhlenberg v. Henning, 116 Pa. St. 138; Kemble Iron Co. v. Scott, 15 Weekly Notes of Cases, 220; Blake v. Labb’s Estate, 110 Mich. 608" court="Mich." date_filed="1896-10-06" href="https://app.midpage.ai/document/blake-v-lobbs-estate-7938535?utm_source=webapp" opinion_id="7938535">110 Mich. 608; Gribben v. Atkinson, 64 Ib. 651; Brick Co. v. Pond, 38 Ohio, St. 65; Cook v. Andrews, 36 Ib. 174; Clifford v. Watts, L. R. 5 C. C. P. 576.
Reversed and remanded.