25 Colo. 540 | Colo. | 1898
delivered the opinion of the court.
The two. principal questions for review, as presented by counsel for appellant, are:
First. Should the demurrer to the first and second separate defenses have been sustained ?
Second. Did the court err in finding the issues, and rendering judgment; in favor of appellee ?
1. In support of the proposition that the demurrer to the first separate defense should not have been sustained, it is argued that the conditions of the lease which granted appellee special privileges in the way of trading with the employees of appellant, were illegal, because they conferred upon him a monopoly of the sale of merchandise to such employees, and
2. The second question presented for determination necessitates a consideration and examination of the evidence. The testimony is voluminous, and to notice it in detail would be impracticable, and its review will, therefore, be limited to a mention of the particular facts to which it was directed, and what, in effect, the testimony of the respective parties was as bearing on these facts. The main questions of fact involved
On this subject the evidence is conflicting. Witnesses on behalf of appellant stated that, in their opinion, the coal from the slope was not marketable; that the degree of impurities it contained and their distribution was such that the expense of separating them from the coal rendered its extraction impracticable as a mining enterprise; that the coal was of that character, even if properly cleaned, it was undesirable, and practically unmarketable, as it was neither a true coking, nor true domestic coal, it being located at that poirit in the southern coal fields where the one class was in a state of transition to the other. On behalf of appellee witnesses stated that the coal in the slope was of the same general character as in the Walsen opening; that it was a good coal for steam and domestic purposes; did not contain impurities to the extent Stated by witnesses for appellant, and improved in quality as the slope was extended. From the record it is understood that the vein in the Walsen opening and the slope is the same. It appears that the Santa Clara mines were operated for several years, and from the openings known as the Walsen and Cameron a great many thousand tons were mined and marketed ; that coal from the slope and cross entries was mingled with those from the others, and sold; that after work on the slope ceased, the water was kept pumped out for over two years; that no offer to return or cancel the lease was ever made by appellant, until after the commencement of this suit; or that it ever notified appellee or claimed in conversation with him, that the coal was of an inferior or unmerchantable
The work of extending the slope was commenced in 1888, and continued for about two years, at which time it was suspended, and no further work of that character prosecuted. The period between the date this work ceased and the time this suit was commenced was nearly two years; the evidence was that by the prosecution of work with reasonable diligence, the leased lands could have been reached through the slope within eighteen months or two years from the date work on the slope was commenced, so that the finding of the trial court, that reasonable diligence had not been exercised by appellant in the prosecution of work for the purpose of reaching the coal on the demised premises, is supported by the evidence.
The trial court, in determining the damages awarded, appears to have adopted the rule that for violation of the covenants in the lease, no coal having been mined from the demised premises, the measure of damages would be the stipulated royalty on the number of tons which the lessee could have mined, by the exercise of reasonable diligence during the
It was incumbent upon the lessor to establish every faet necessary to entitle him to a judgment for substantial damages, for the lessee would not be required to introduce any evidence to defeat a recovery for such damages, unless the lessor, at the close of his evidence, had established all the facts entitling him to such a judgment. Counsel for appellee appear to have fully recognized what was necessary to plead in order to state a cause of action, for in the- complaint it was alleged that the lands demised contained deposits of merchantable coal which can be worked and extracted at a profit by the reasonable expenditure of money for that purpose ; and there being no evidence to sustain the issue tendered by appellee on the question of profit, or the finding of the court in his favor on this subject, he was not entitled to a judgment for substantial damages.
The judgment of the district court is reversed, and the cause remanded for a new trial.
Reversed and remanded.