105 Va. 785 | Va. | 1906
delivered the opinion of the court.
By successive transfers of the original demise the appellant and the appellee stand in the relation of lessor and lessee with respect to a certain coal mine, located on the waters of Fuller's branch, in AVise county, Virginia.
The appellant, by virtue of the provisions of a compromise agreement, amendatory of the original lease, was proceeding to drive certain cross-entries from its adjoining coal lands, on the north and west, over the dividing line between the properties, for the purpose of forming connections with the haul-ways extending through the leased mine, when it was injoined by the lessee from prosecuting the work on the ground that cutting entries constituted a trespass, the consummation of which would interfere with its mining operations and rights under the lease, and inflict irreparable injury upon it.
There was a demurrer to the bill, which was overruled; and from a final decree perpetuating the injunction this appeal was allowed.
The correctness of the ruling of the trial court on the demurrer depends upon the construction of clause 4 of the compromise agreement, which is as follows: The “lessor reserves, during the continuance of this lease . . . the right of way over any and every part and portion of the . . . demised premises, for roads, railways, waterways, and sidetracks, also such -use -as it . . . may desire, of all tracks, roads, rail-ways, waterways and sidetracks, constructed by the said lessee
The meaning ascribed hy the trial court to the foregoing* clause denies to the appellant the right to the joint use with the appellee of the haulways, tracks, roads, railways, waterways and sidetracks referred to therein, thus adopting the pretension of the appellee that, according to the true interpretation of the. contract, the appellant’s right to use the three haulways which it is specially authorized to designate, and other subsidiary easements agreed on, was not to commence until after their use had been discontinued hy the lessee; or that, in any event, their use hy the appellant is coupled with the condition that it shall not injuriously interfere with the mining operations of the appellee.
It is also insisted that driving these entries across the dividing line between the properties violates the stipulation of the compromise agreement that the lessee “shall not at any time drive any drift, tunnel, room or entry within sixty feet of any boundary lines mentioned in this lease . . . unless hy written consent of the mining engineer of the lessor”; and section 2570, Va. Code, 1904, which forbids excavations in any mine or shaft within five feet of the dividing line of other property without the consent in writing of the owner of the adjoining lands.
We are of opinion that none of these contentions are well taken. It is quite clear that it was the general scope and purpose of the compromise agreement to invest the lessor with the right, by means of cross-entries, to connect its adjoining coal
There is nothing in the language of the compromise agreement to indicate that the appellant’s right to use the haulways in the manner indicated was not to commence until after the lessee had ceased to use them; but the contrary plainly appears. Thus it' confers on the lessor the right, at any time or times, to designate not exceeding three haulways for its use, and imposes on the lessee the duty, at all times, of maintaining and supplying these haulways with proper ventilation and air courses. These privileges are to continue during the term, and in return therefor proper compensation is to be made by the lessor. The original lease clothed the lessor with the right to require all entries to be kept open for future use, and the amended agreement unmistakably contemplates present use of the three haul-ways to be designated.
Having reached the conclusion that an immediate joint user of the three haulways to be designated by the lessor was intended, it necessarily follows that unavoidable inconveniences ‘incident to the fair exercise of the rights granted were within the contemplation of the parties, and assumed by the lessee; and it cannot now escape the consequences of the contract on account of resultant annoyances which naturally flow therefrom. The limitation that the use of the haulways shall not injuriously interfere with the operations of the lessee was intended to protect it against the abuse, but not against the fair enjoyment by the lessor of its contractual rights.
It is'the province of the court to construe a contract so as to give it effect if practicable, rather than to defeat it; and to do that in this instance we must hold that the right of the lessor to bring coal from the adjoining land to the haulways on the demised premises is an essential incident to the right to transport it along such connecting haulways. Southern Ry. Co. v. Franklin, &c., Ry. Co., 96 Va. 693, 32 S. E. 485, 44 L. R. A. 297; Gumbert v. McCracken (Pa.), 18 Atl. 1068.
This construction of the compromise agreement disposes of the case on demurrer and renders further consideration of it unnecessary. The written contract being unequivocal, we are not at liberty to search for its meaning beyond the instrument itself. Towner v. Lucas, 13 Gratt. 705; Woodward, Baldwin & Co. v. Foster, 18 Gratt. 200; Martin v. Lewis, 30 Gratt. 672, 32 Am. Rep. 682; Bank v. Walton, 96 Va. 435, 31 S. E. 890; Slaughter v. Smithers, 97 Va. 202, 33 S. E. 544.
It follows from what we have said that the demurrer ought to have been sustained and the hill dismissed; but the dismissal must he without prejudice to the rights of the appellee to compensation for any coal to which it is entitled- and of which it may he deprived by the appellant.
Reversed.