47 So. 298 | Ala. | 1908
— The bill in this case was filed by the appellant against appellees — the Carbon Hill & Lost Creek Coal Company, P. M. Long, as executor of B. M. Long, deceased and Peyton Norvell — seeking to cancel a lease, to require said coal company to deliver up the leased premises, also to recover amounts due by said company for royalties, and to enjoin said company from operating the coal mines on the leased premises. A preliminary injunction was issued, and was dissolved, on the coming in of the answer, and on affidavits filed by both parties. The appeal is from the decree dissolving the injunction.
The parties to the lease were B. M. Long and John W. King, who leased to Evan Bynum and J. W. Shepard. Complainant has* become the owner of the interest of said J. W. King, and said coal company is the successor of said Bynum and Shepard, the second parties. The lease grants to said second parties all the coal in a certain tract of land, with the exclusive right to mine and carry away the same, also the right to use-timber, etc., to have and to hold for 20 years, “for a rent or royalty upon all salable coal and all coal utilized for cooking and other purposes,” for which they were to pay “on all salable coal up to 50 tons per day a royalty of 7 cents per ton, and on all of said coal in excess of 50 tons per
The bill alleges that said coal company is insolvent, that it has not operated said property since March 2, 1894, and, excepting a few small payments, has paid no royalty since that time, but a few months ago said coal company re-entered on said property and commenced to mine, and complainant has refused his consent to such operation. The bill also states, on information and belief (without any allegation that a receiver had been appointed), that said coal company had practically abandoned said lease “upon the appointment of said receiver” ; that in March, 1904, complainant notified said coal company that he elected to declare said lease forfeited, in accordance with the contract, and demanded possession of his undivided half interest; that the amount due complainant exceeds the value of the property of the said coal company; that neither said company nor said P. H. Norvell has the ability to pay the amount due. It also alleges that respondents are not operating the mines in a proper and tenantlike manner, but are exposing it to waste, so that if they are allowed to remain they will eventually consume all of the coal on the land. The bill also alleges that P. M. Long, as the administrator of the estate of B. M. Long, deceased, does not join in this bill, but has made a new contract with said coal company, by which additional rights have accrued to said estate; that Peyton Norvell is the president of said
The answer admits the lease, but states that there is a dispute between the heirs of John W. King, as to the ownership of the half-interest in said lands — the heirs of said John W. King denying that the complainant, Belton Gilreath, as trustee, is the owner of the same— and that there is now pending in the circuit court a suit between said heirs and said Gilreath to determine the ownership of said interest, and that said heirs have notified respondent not to pay a royalty or rent to said Gilreath. It denies that said coal company is insolvent, but states that the only debt against it is $1,692.03, due for royalties or rent, to the owner of the half interest formerly belonging to John W. King, and that it is able and willing to pay the same, when it is made known who owns said interest; that said coal company was placed in the hands of a receiver March 2,1894, but that said receiver was discharged October 12, 1903, and the property and assets of said company returned to it, all debts against it having been paid; that during the time of said receivership a smaller amount of coal was mined, and said debts accumulated, but that since that time respondent has been working said mine, and has paid all rents or royalties due, except said $1,692.03. It denies that it is not working said mines in a proper and skilled manner, or in disregard of the life of the property. It admits making the new lease contract with P. M. Long, as executor of B. M. Long, but denies that said Long-will derive any additional rights or benefits from it, and alleges that, as the original lease was made by said King and said B. M. Long (now deceased), said Gilreath, even
The appellant filed the affidavit of one Turner, a civil and mining engineer, to the effect that he had examined the mines in question; that they are not being operated with a due regard to the life of the property and according to approved mining- methods, in that the coal is taken too closely, “not enough of pillar being left to properly support the roof and prevent breaks,” and that, in his opinion, the result of such methods will be that “water will collect in said mine, through breaks in the surface, making it difficult to keep the same pumped out, and other falls are liable and likely to occur, which will cause flooding of the mine and make further operation of the mine difficult (if not impossible), and involve great expense; also that there may result loss of coal, and loss to the owners, in that said opening may have to be entirely abandoned and another opening made at great expense;” also that said water might be communicated to adjacent openine-s: also that the “entries therein were not driven on sights,” and the opening, as
It will be noticed that the lease contract conveys to the lessee all of the coal in said lands, and there are no provisions of the contract directing how the mining operations are to be conducted; also that after the first two months the lessee is to “pay a royalty on at least 100 tons per working day on all marketable coal, and all coal utilized for cooking or other purposes, whether this amount is mined or not,” so that, if the said coal company avails itself of its privileges under the contract, there will probably be no coal left, at the expiration of the lease, for the lessor to mine; whereas, if said lessee
The general rule is that, on the coming in of the answer denying the material allegations of the bill, the preliminary injunction will be dissolved, though it is true that the chancery court is vested with a large discretion in this matter, and such injunction will not be dissolved if it appears that irreparable injury is likely to result to the complainant, if he sustains his bill, and that the defendant will not be seriously injured by the continuance of the injunction. —Satterfield v. John, 53 Ala. 127, 132; Chambers et al. v. Alabama Iron Co., 67 Ala. 353, 359; Davis v. Sowell & Co., 77 Ala. 262, 275; New England Mortgage, etc., Co. v. Powell, 97 Ala. 483, 12 South. 55; Turner v. Stephens, 106 Ala. 546, 17 South. 706; Simonson et al. v. Cain et al., 138 Ala. 221, 225, 34 South. 1019; Harrison et al. v. Maury, 140 Ala. 523, 527, 37 South. 361; East & West R. R. Co. et al. v. E. T., V. & G. R. R. Co., 75 Ala. 275, 283, 284. The affidavits do not show clearly that irreparable injury will result to the complainant by the dissolving of the injunction, and they indicate that if the injunction is continued at least as great injury may result to the respondent, not only on account of the injury to its machinery, etc., but because of the shortening of its time to get out its coal under the lease.
As we think that the chancellor was justified, on general principles, in dissolving the injunction, we have not
The decree of the court is affirmed.