89 Tenn. 381 | Tenn. | 1890
Early in 1865 Thomas H. Calloway and John R. Branner and their associates obtained mineral leases upon a lai’ge number of tracts of
This suit is for the purpose of recovering the mines and mineral interests in and under the surface of several tracts adjacent to and surrounding the parcel upon which the shafts hnd pits and tunnels of defendant are situated.
Complainant insists that the suit is one of ejectment, and as such is a legal action, and subject only, to such legal defenses as are admissible at law under the plea of not guilty. The jurisdiction of the Chancery Court rests upon the Act of 1877, whereby jurisdiction was conferred upon that Court in certain causes of action theretofore cognizable alone in a Court of Law. It is therefore
■First, no coal mines or mines of any other sort have been opened upon the lands covered by the' leases involved. There has been no separation of the mineral interest by deed from the fee. The contracts under which complainant sues are leases and not deeds. An action of ejectment to recover a mine will undoubtedly lie where the mine has been opened, because, in that case, the defendant, by the writ of ejectment, can -be removed, and the plaintiff put in possession of the mine by putting him in possession of the shaft, pit, or opening. Says Mr. Adams, in his work upon Ejectment :
“ Though a' man may have a right to the mine without any title to the soil, yet, the mine being fixed in a certain place, the Sheriff has a thing certain before him of which he can deliver possession. When a grant of mines is so worded as not to operate as an actual demise, but only a license to dig, search for, and take metals and minerals within a certain district during the term granted, it seems that a party claiming under such a grant, and who shall open and work and be in*385 actual possession of any mines, may, if ousted, maintain ejectment in respect of them; but he cannot maintain ejectment, either in respect of mines within the district which he has not opened or which, being opened, he- has abandoned.” Adams on Ejectment, side page 20.
The second reason operating to defeat an action of ejectment at law upon these leases, so called, is that complainants have never been in possession. Before entry such an agreement as here sued upon does not operate to convey an estate, but merely confers a right thereto. The essential parts of these leases are as follows: “ Witnesseth, that' the said - has this day leased unto the said Callo-way and others, or their assigns, for the term of 99 years, all of his mineral and petroleum interests, for the purpose of exploring for coal, petroleum, lead, iron, copper, and other ores, metals, and minerals, and use of timber, etc., for mining, working, smelting, and rending the same, and, for such purpose, erect all necessary buildings and other apparatus and fixtures for carrying on their operations in and upon the following described parcel of land,” etc. “ The said Calloway, Branner & Co., for and in consideration of the above lease, obligate and bind themselves to pay to the said - the one-tenth part of the net profits of whatever may be discovered and worked in and upon said lands deemed advisable to be tested and worked by the said Calloway, Branner & C.o., or assigns. . They, the said Calloway, Branner & Co.,
Such an agreement can only be perfected by entry, and until possession has been taken the right is an executory one (called by the old law writers an interesse termini). Such an interest is not one which' qualifies the owner to maintain ejectment. "Washburn on Heal Estate, side pages 295, 296; Taylor’s Landlord and Tenant, Sec. 15.
Such a lessee, before entry, could not maintain trespass or conversion. Idem; Austin v. Huntsville Coal Company, 72 Mo., 535.
But complainant has not limited its prayer for relief to a common law writ of ejectment, for it has most providently added the most equitable of all prayers — one for general relief. Upon looking to the intent of these agreements as ascertained by looking to all parts of the instrument, and to the facts contained in the transcript, we are of opinion that neither in law or equity is complainant entitled to any relief. The well-defined distinction between a condition in such instruments and a covenant has been much insisted upon by the learned solicitors engaged in the cause. The contention of complainant is that the provision concerning “ testing,” heretofore set out, has been, in fact, substantially complied with; and that, if not, then the provision is a mere covenant, not going to the root of the contract, and not a condition upon which the lease was dependent. So it insists that while the law would imply an agree
The provision on this subject is, that in consideration for the lease the lessees bind themselves to pay the lessors “one-tenth part of the profits of whatever may be discovered and worked in and upon said lands, deemed advisable to be tested and worked” by the lessees. Then follows the agreement that the lessees shall commence testing within three years. A fair construction of this lease would leave it optional as to whether the lessees should make any effort whatever to discover the mineral value of any particular lease, and, if “tested” and minerals developed, it seems to depend upon their judgment as to whether such mines shall be worked.
If they deem it advisable to “test” a particular tract, they hind themselves to do so within three years. No other consideration for these leases is pretended than a share in the net profits resulting from such mines as they shall deem it “advisable” to test and work. No penalty is agreed upon if
But if the contract be construed as binding the lessee to “test” the leased lands within three years, and as requiring the working of such “tested” tracts within a reasonable time, then it must be very evident that under leases of this character both of these provisions are conditions upon which the lease depends. If the contracts had fixed a money , rent in case of failure to “test” or “work,” and the payment of such rent or penalty is not made a cause of forfeiture, the rule would be different. But here the lessee is to “ test ” and “ work ” not only for his own benefit,
Where there is no other consideration for a lease than the discovery and working of minerals supposed to exist, the exploration for the pui-pose of ascertaining the presence of minerals should be substantially and thoroughly made. The “testing” should be so thoroughly done as to determine not only the presence of such minerals, but their commercial value, considering their abundance and ac-cessability. The information resulting should be such as a prudent and experienced investor would desire to know before expending his capital in the digging of shafts or the erection of machinery proper for the profitable working of such a mine. No such testing was made, or pretended to be made, under these leases. A non-expert is shown to have been sent to look over the immense body of leased lands, and, from surface exposure, ascertain what he could. Whether he ever went upon the lands now involved is more than doubtful, and certainly is not a proven fact. What he may have done upon other lands is wholly immaterial unless he thoroughly “tested” the lands now concerned. Erom some of the leased lands this inexperienced man obtained some specimens of coal, and made some inexact measurements of exposed
In the case , of Conrad v. Morehead the facts were that a lease for mining purposes was executed for ninety-nine years. The consideration to the lessor was a share in the profits of mining. The right to surrender the lease at any time was reserved by the lessee. There was no covenant or condition requiring the working of the mines. It was held by the Supreme Court of North Carolina that there was an implied agreement that the mines should be worked in a reasonable time and manner, and that a failure, for more than twenty
, IJpon the whole case, we are content to affirm the decree of the learned Chancellor dismissing the bill.