Ellis v. McCormackEllis v. McCormack
Opinion of the Court by
— Reversing.
This action was brought by appellee to recover from appellant the vаlue of coal slack which the latter allegedly converted to his own use and sold. The case was tried before a jury which returned a $750.00 verdict for.appellee, half the amount claimed.
In October 1935 appellee’s assignor leased from аppellant’s brother a 25 acre tract of land for the purpose of mining cоal thereunder. The lease provided a royalty for all “lump and nut coal” mined оn the premises. Its term was five years, with the right to extend it for the same additional period. The lessee was to operate the mine continuously, or as nearly so as practicable. The lessee was given the right, at the expiration of the. leasе, to remove steel railings, cars and buildings; and all other equipment was to revert to the lessor. The lease was assigned to appellee, and coal was mined frоm this property until October 1939. On October 25 appellee sold practically all of his equipment to appellant, reserving in a written memorandum the steel and cars “unless sold to (appellant) long as he wants to move his stuff.”
There was a slack pilе at the opening of the first mine operated by appellee. It remained thеre until December 1946. At that time appellant sold it for $1500.00, which he states he paid direсtly to his brother, the owner of the land. It appears that shortly before this sale aрpellee had tried to persuade appellant to go in partnership with him аnd dispose of it on an equal shares basis.
On this appeal appellant argues a -number of propositions, but we deem it only necessary to consider his right to a рeremptory instruction,
As noted, in October 1939 appellee sold to appellant *578 his equipment except the steel in mine No. 2 and his cars. Acсording to the memorandum he also expected to sell these latter items to him. He ceased mining under the lease. He effectively terminated it. No mention was made of the slack pile. His contention that he assigned the lease to appellant is not substantiated. Had he done so the slack pile would perhaps have gоne along with the lease.
We think this is a clear case of abandonment. It consists оf two elements: (1) voluntary relinquishment of possession, and (2) intent to repudiate ownership. The latter may be inferred from the former where the facts justify it. 1 Am.Jur., Abandonment, Sections 8 аnd 13.
Lapse of a long time after relinquishment of possession is significant evidence of the intention to abandon. In the present case appellee did not assеrt ownership of this slack pile for over seven years after he left it on the premises of another. This factor coupled with this action in disposing of his mining equipment, without making any mention of the then worthless property, conclusively establishes that apрellee had abandoned it, both physically and mentally. See Fidelity-Philadelphia Trust Cо. v. Lehigh Valley Coal Co.,
Appellee contends that when he sold the equipment to appellant he reserved the right as long as he wanted to remove “his stuff,” and this refеrred to the slack. The reference to “stuff” is practically meaningless, and if it relates to anything, it covers only the type of property about which the parties hаd negotiated.
The evidence is convincing that this slack had very little, if any, value in 1939, and apparently it never occurred to appellee to claim it or wish to sell it until the coal strike in 1946 when it suddenly had some value.
The principle involved in the right of a lеssee under a mineral lease to remove fixtures is applicable here. Evеn though the property originally belonged to the lessee, he forfeits his right thereto if hе does not remove it from the leased premises at least within a reasonablе time. Kentucky Block Cannel Coal Co. v. Stacy et al.,
For the reasons stated, the judgment is reversed for proceedings consistent herewith.