73 W. Va. 658 | W. Va. | 1914
Plaintiff and defendant, James L>. Lowry, both claim the mineral underlying a tract of 375 acres of land situate in Wyoming county, mediately, under separate deeds from John P. Bailey as a common source of title, the plaintiff claiming under a deed made to Grigsby and Gooch on the 26th of September, 1885, and defendant under a mineral lease made to W. A. French on the 23rd of July, 1881, for a term of 99 years. Claiming that the deed to French was only an option, or at most a mining lease, and that it had been forfeited or abandoned by him, plaintiff brought this suit to have it, and its subsequent assignments, declared null and void, on the ground that recent assertions of title to the mineral, by the claimants under French, constituted a cloud upon (his title. From a decree granting relief to plaintiff, James D. Lowry, one of the defendants, has appealed.
The facts are not disputed. The lease to French was prior to the deed to Grigsby and Gooch, and was duly recorded. The case depends upon two questions, viz.: (1) Was the deed to French only a mining lease, or did it vest him with title to the mineral for a term of 99 years? (2) If only a mining lease, have the lessee’s rights thereunder been forfeited or abandoned ?
Counsel for appellant strenuously insist that tthe lease to French operated to vest in him an estate in the mineral for a term of 99 years, and that it could not be divested by abandonment, or forfeited for failure to begin mining operations within the term. They cite decisions from the court of' appeals of Pennsylvania, and of one or two other states supporting their contention. The briefs, both pro and eon, show an unusual amount of care, research and labor, as well as ability, in their preparation. There are, however, many propositions discussed by counsel for appellant which, need not be considered for the reason that we hold that the lease did not vest in French title to the mineral in place. Much of the brief is devoted to a discussion of the manner of divesting of estates, which does not apply to a mining lease which may be abandoned or surrendered by the lessee at any time. The lease in question reads as follows, viz.:
*660 “This Deed made this 23rd day of July, 1881, between John P. Bailey, of the one part, and W. A. French.
Witnesseth: That the said John P. Bailey doth hereby demise and lease unto the said W. A. French, his personal representatives, successors and assigns, all coal and mineral rights and privileges whatsoever, contained on, in and beneath the surface, of all and every part, portion and acre of his, the said John P. Bailey’s farm, lands, grounds, property and possessions, lying and being in the County of "Wyoming, W. Va., on the waters of Guyandotte River, adjoining the lands of Addison Milam and others, and containing 375 acres, be the same more or less.
To have and to hold the same from the date of the signing and concluding of these presents, for the term, period and space of ninety-nine (99) years, hence ensuing — the said W. A. French, his personal representatives, successors and assigns, shall & will truly pay, or cause to be paid, to the said John P. Bailey, the lessor thereof, during the said term, period and space, mentioned; for and in consideration of said demise and lease, a rent of 3 cents per ton of 2240 lbs. for each and every ton of coal and other minerals mined and shipped therefrom, and the said W. A. French, his personal representatives, successors and assigns, may and shall have and enjoy free and full access, ingress and egress into, on, under, over and beneath said lands, for the purpose of opening, mining and shipping the coal and other minerals thereon and therein, and to build and erect the necessary buildings and machinery, to operate and work the same with undisturbed' right of way for all necessary road ways to and from their, or his said mines and works, and for the further consideration of one dollar to me, the said John P. Bailey, in hand paid by the said W. A. French, the receipt whereof is hereby acknowledged by the said John P. Bailey to be binding upon him, his heirs, administrators, successors, and assigns, the said parties have hereunto signed their names and affixed their seals, the day and date above written.
John P. Bailey. (SEAL).
Wm. A. French. (SEAL).”
No mining operations were ever 'begun by French or those claiming under him, nor did he or they cause the mineral to
The lease did not vest in French an estate in the coal and other minerals in place. It does not in terms purport to convey title to the mineral. Counsel for appellant insist, however, that, properly construed, the writing does vest in the lessee an estate, in the mineral for a term of 99 years. In one sense such a lease is a sale of the mineral substance, because it authorizes the lessee to extract it and then dispose of it as he pleases. But, until he does so, the title thereto remains in the lessor, subject to the right of the lessee to sever it from the other part of the realty. That French was vested with no. present title to the coal in place is borne out by the following authorities: Steelsmith v. Gartlan, 45 W. Va. 84; Smith v. Root, 66 W. Va. 633; and Harris v. Michael, 70 W. Va. 357. There is a clear legal distinction between an absolute conveyance of the mineral in place, and' the grant of a mining right to enter upon the land and convert the mineral into personalty and dispose of it. In one case there is a severance of the title to the realty; in the other there is not, although the mining right entitles the lessee to extract every particle of the mineral. The grant is not of the mineral in place, but of ‘ ‘ all coal and mineral rights and privileges.” The consideration to the lessor is not a definite sum of money, paid, or to be paid at a certain future time, but “a rent of 3 cents per ton of 2240 lbs. for each and every ton of coal and other minerals mined and shipped therefrom,” which was to be paid “during the said term,” that is, continuously throughout the term, or as long as coal is mined. The contract contains no provision for payment of minimum royalties in the event of failure to mine; mining had to be begun before the lessor could demand any of the consideration for the lease. It can not be con-cieved, therefore, that the contract was made merely to enable the lessee to speculate wholly for his own profit, or that the lessor intended to incumber his property for a period of 99
At the date of this lease there was no railroad within many miles of the land, and consequently no shipping facilities. But within a few years thereafter the Norfolk & Western Railroad was built within some ten or twelve miles of it; and, within recent years, the Virginian Railroad has been built much nearer to the property. Counsel for defendant insist that, as the lease contemplated shipment of the mineral to market and there was then no means of shipping it, the parties must have contemplated that fact, and must have intended that mining was not to commence until a railroad was built near to the property, and that delay to mine until such time is reasonable. They insist that it was not feasible, or practicable, to ship the coal to market until the Virginian Railroad Avas built. Evidently the parties knew that the property was then too remote from a railroad to make the mining of coal profitable. But, is it not fair to presume that they contemplated that a railroad AA'ould be shortly thereafter built
Being vested only with a right to mine and dispose of the product, and not with title to the mineral in place, it is well settled that such right may be lost by abandonment, and that failure to begin mining in a reasonable time evinces intention of lessee to abandon his right. By their failure for more than twenty-five years to mine the coal, the intention of French,
In Cowan v. Radford Iron Co., 83 Va. 547, there was involved a mining lease similar to the one in this case in that it fixed no time for the commencement of operations, and dissimilar, in that it had no limit to its duration. No development had been begun within five years, and the lessor sued to cancel the lease on the ground that there had been an abandonment of it for failure to operate, and was granted relief.
In Shenandoah Land &c. Co. v. Hise, 92 Va. 238, the mining lease was also very similar to the one we are now considering. It was for a term of 99 years, and gave the lessee the right to mine all minerals of whatsoever description found in
Bluestone Coal Co. v. Bell, 38 W. Va. 297, is also very like the present case in many respects. It was a case of a coal mining lease for a term of 99 years, given for a consideration of a per ton royalty. The lessee was also given the right to cut, manufacture and dispose of merchantable timber on the land, at the price of fifty cents a thousand feet, or twenty-five cents per tree at his discretion, but no time was stipulated for commencing to mine. Sixteen or seventeen years after the lease, the lessor began cutting and marketing the timber himself, and the lessee sought to enjoin him; and the court held that the lessee’s right to the timber was subordinate to, and ■dependent upon, the mining right, and that, by his failure to begin mining operations for seventeen years, he had abandoned all rights under the lease.
We affirm the decree.
Affirmed.