190 Iowa 18 | Iowa | 1920
We might stop here; but, in view of another trial, and the insistence of both parties that we express our views on the sufficiency of the evidence to carry the issues to the jury, we shall briefly review the record. As plaintiffs conceded that they had received royalties, as agreed, upon 559,993 tons of coal, there could be no . recovery, unless more than this amount had been mined and removed from beneath the surface of their land,— that is, from the Haven mine, — and they are entitled to recover at the rate of 4 cents a ton on such excess, if any. Our inquiry is limited to ascertaining whether more than the tonnage stated was removed. The plaintiffs sought to prove this by (1) resorting to the map exacted by Section 2485 of the Code, providing that “the owner or person in eharge of any mine shall make or cause to be made an accurate map or plan of the same, on a scale of not less than one hundred feet to the inch, showing all the area mined or excavated, and on or before the first day of September of each year cause to be made a statement and plan of the progress of the working of the mine up to date, which progress shall be clearly indicated upon the map hereinbefore required;” (2) ascertaining the thickness of the coal vein shown by the map to have been mined out; (3) showing the area mined; (4) showing the proportion of coal left in the mine as pillars and stubs between the doors to the miners’ rooms, and on the
I. Hall, after qualifying as an expert, testified to having ascertained the weight of a cubic foot of coal by placing a chunk thereof in a bucket of water, weighing the water displaced thereby, as well as the chunk of coal; and, of course, the weight of the chunk of coal would be the same proportion of a cubic foot thereof as the weight of the water displaced would bear to 62% pounds, the weight of a cubic foot of water. In this way, he reached the conclusion that a cubic foot of coal weighed 82.96 pounds. If an average chunk of coal were used, and none of the water clung to the coal, and none were lost by evaporation or in the process of displacing and collecting, this method would seem conclusive. One of the state mine inspectors swore that the weight of a cubic foot of bituminous coal, generally accepted, is 80 pounds. An operator of long mining experience swore to having weighed a cubic foot of such coal, and to having found the actual weight to be 68 pounds and 13 ounces. This evidence, without more, carried the issue as to the weight of a cubic foot of coal, to the jury.
III. Hill swore to having measured the thickness of the vein of coal,, or rather, of the depth of the space from which the coal had been removed, and concluded that the average depth was 30 inches. Lodwick measured at 5 places, at 4 of which the depth was 30 inches, and at the other, 31 inches. The mine inspector, without measuring, estimated such depth at from 26 to 28 inches, and Smith, a pit boss for many years, at 29 inches. Others were heard on the subject, but enough has been said to indicate that the issue was for the. jury.
IV. The proportion of coal or other material left in the mine, included within the average thickness, was more difficult to ascertain. Hill estimated that the pillars and coal between the doors to the rooms would amount to about one third of the area, and that abnormal conditions would include about 11 acres more. Lodwick thought that at least 44 per cent would be left in the mine, and not to exceed 56 per cent of coal taken, and added that, ‘ ‘ on the average room and pillar workings, they do well to get 50 per cent out: that is, finally accepted. ’ ’ This witness added that “the 44 per cent I said was left in, includes the pillars, but doesn’t include soft coal, unmerchantable coal,
“They do not get out much more than 50 per cent; the other 50 per cent would be left in the mine, which would include pillars, unmerchantable coal, places that had to be stopped, on account of faults, and the coal where rooms had squeezed in so that they couldn’t get out the 150 feet in the rooms. As to whether they got out the 150 feet would depend on the roof. Parts of the Raven had a very poor roof; the cap rock cuts out entirely in part of it. When you have a, foot of coal in thickness, there would be 1,742 gross tons of coal per acre. By common consent for years back it has been figured that you get 1,000 tons per acre. In this county, the vein is 2 1/3 feet thick. That is what bituminous coal is estimated at in this county. That would make an acre of coal in this county 2,333 tons; that is what they would be able to recover; that is commonly accepted, figuring on a normal mine.”
Other witnesses testified on like lines; and one, that the screenings would be from 4 to 13 per cent. If some of the estimates are to be relied upon, more coal has been taken out and accounted for by plaintiff than was minable! On the other hand, we are satisfied that Hill underestimated the area of abnormal conditions prevailing in the mine, and overestimated' the size of the rooms, and ignored the loss through screening. Only a part of the evidence has been alluded to; and, as the evidence will probably be more definite and certain on another trial, we are not inclined to discuss this phase of the case further.
Y. The method of accounting by defendant is subject to some criticism. In the first place, the lease required a monthly report and remittance. Defendant has reported merely the total tonnage mined annually, with remittance therefor. No claim but that the coal taken out through the shaft of the Raven mine was correctly reported, is made. In 1904, coal mined in the Raven mine was hauled by mules to the end of a tail rope, and by it pulled to the shaft of the Diamond mine. There was a break between the mines in 1908, and some other method seems to have been pursued. The daily record of the output of. both mines was kept on the same bulletin. As explained by Trotter,