184 Ky. 381 | Ky. Ct. App. | 1919
Affirming.
The question presented by this appeal is whether appellee, Tobias Wagoner, life tenant by curtesy of 22% acres of land, is entitled as adjudged to one-third of the royalties due on the coal mined therefrom, by appellant, Mossy Bottom Mining Company.
The land was leased by appellee and his wife, Caroline M. Wagoner, who owned the land, to the Wagoner Coal Company, and the mines were opened and worked for a time during her lifetime by that company under its lease. After the death of Caroline M. Wagoner, and while the mines upon the land were being operated by the Wagoner Coal Company under its lease, a controversy arose between the life tenant, Tobias Wagoner, and his children, who inherited the remainder interest in the land from their mother, as to whom the royalties were flue under the lease, and in a suit which grew out of that controversy, an agreed judgment was entered adjudging to the .life tenant one-third of the royalties and to the remaindermen the remaining two-thirds thereof.
Thereafter the Wagoner Coal Company, having encountered financial trouble, ceased its mining operations, and in the settlement of its affairs_ its lease was sold to the appellant, Mossy Bottom Mining Company, which, however, seems to have abandoned its lease, when it subsequently purchased an undivided four-fifths interest in the land from the remaindermen, and thereafter resumed operation of the mines theretofore opened upon the land, and it now denies that the life tenant is entitled to any royalties from the operation of the mines, and complains of a judgment in his favor for one-third thereof, but admits liability to an infant remainderman whose undivided one-fifth interest it has not acquired, for a proportional part of a reasonable royalty upon coal mined, conceded to be ten cents per ton, and a judgment was entered in favor of this remainderman upon that basis, of which no complaint is made.
Since the very same mines that are now being operated were opened and operated during the lifetime and under lease from Caroline M. Wagoner, there is no doubt under the authorities, that the life tenant by curtesy was by law entitled to the whole of the royalties due from such operation. (See 9 R. C. L. 579; James H.
Wherefore the judgment is affirmed.