Crоss appeals from an order of the Supreme Court (Viscardi, J.), entered November 5, 1996 in Essex County, which denied defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs’ cross motion for summary judgment.
The present dispute requires the interpretation of several agreements executed during the 1950s between the parties’ predecessors in interest concerning mining properties and mining projects in Essex Cоunty. At issue is whether defendant is obligated to continue to pay plaintiffs an annual overriding royalty. Both sides appeal from the denial of their respective motions for summary judgment, each contending that the written documents unambiguously warrant judgment in their favor.
Pursuant to an April 10, 1952 agreement between plaintiffs’ predecessor (Willsboro Mining Company) and defendant’s predecessor (Cabot Carbon Company), Willsborо transferred to Cabot all of its assets, including a 1951 mineral lease and a processing plant and equipment, in exchange for a cаsh payment and an “overriding royalty” of minerals “produced and sold” by Cabot. By this 1951 lease, Willsboro had been granted the exclusive right to mine wоllastonite, diopside and garnet from specific lands in Essex County.
As contemplated by the April 10, 1952 agreement, the 1951 mineral lease was сanceled and replaced with a new mineral lease on April 19, 1952. Pursuant to the 1952 lease, Cabot, as lessee, was granted the exсlusive right to mine wollastonite from the lands described in the 1951 lease as well as additional lands in which the lessors had title or mining rights. These lands collectively became known as the Willsboro Mine.
The April 10, 1952 agreement was amended on September 24, 1957 to change the formula by which the overriding royalty would be calculated. The amendment provided for “a total overriding royalty of [$0.60] per ton of wollastonite and dioрside produced and shipped * * * and [$0.10] per ton of garnet produced and shipped”, subject to a $36,000 annual cap. In referring to the April 10, 1952 agreement, the amendment recites that “Cabot agreed to pay to Willsboro an overriding royalty * * * on minerals removed from lands in Essex County * * * covered by Mineral Leases to Cabot” (emphasis supplied), spеcifically identifying the 1951 and 1952 mineral leases.
In 1982, defendant closed the Willsboro Mine and opened the
For their part, plaintiffs contend that the royalty created by the April 10, 1952 agreement, as amended, was not tied to any specific property; rather, the agreement simply provided that Cabot, as long as it was engaged in the mining, production and processing of wollastonite, diopside and garnet, would pay Willsboro an overriding royalty on all such minerals produced and shipped from whatever source. Defendant claims that a reading of the April 10, 1952 agreement, as amended, plainly establishes thаt it is only obligated to make overriding royalty payments for minerals extracted from those lands identified in the 1951 and 1952 mineral leases (i.e., from thе Willsboro Mine) and because no minerals are now being produced from the Willsboro Mine, plaintiffs are not entitled to any royalty.
The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance (see, W. W. W. Assocs. v Giancontieri,
In this case, “the agreement” between the parties consists
Inclusion of the phrase “overriding royalty” throughout the documents is dispositive of the parties’ intent as this phrase has an unambiguous meaning. An overriding royalty, by definition, is a retained interest in minerals located on specific property that the royalty holder (i.e., the lessee) does not actually own (see, e.g., Annotation, Right to Partition of Overriding Royalty Interest in Oil & Gas Leasehold, 58 ALR3d 1052 § 2; 38 Am Jur 2d, Gas and Oil, §§ 177, 195, 197; see also, N.L. Indus. v GHR Energy Corp., 940 F2d 957, 968, cert denied
An overriding royalty, therefore, cannot apply to minerals mined from lands in which a lessee does not have an interest. Hеre, plaintiffs’ retained interest applies to minerals mined from the Willsboro Mine only. Thus, their position that they are entitled to a royalty from minerals produced and shipped by Cabot on lands not covered in the 1951 and 1952 mineral leases (i.e., the Lewis Mine) is inconsistent with the plain meaning of an overriding royalty (see generally, Mazzola v County of Suffolk,
As a final matter, we note that only where an ambiguity is present in a contract may the subsequent conduct of the parties be used to indicate their intent (see, Town of Pelham v City of Mount Vernon,
All other contentions have been reviewed and rejected as meritless.
Cardona, P. J., White, Casey and Spain, JJ., concur. Ordered that the order is modified, on the law, with costs to defendant, by reversing so much thereof as denied defendant’s motion for summary judgment; motion granted, summary judgment awarded to defendant and complaint dismissed; and, as so modified, affirmed.
Notes
The counterclaim is not at issue on this appeal.