179 Iowa 987 | Iowa | 1917
It is quite apparent that, whichever way the hardship falls, or whatever the general law of the subject may be, we must limit ourselves to what this particular agreement requires. Neither party is repudiating it, and appellant insists that it is to remain effective if he shall be compelled to pay' the minimum royalty. This fact alone will distinguish some cases hereafter to be noted.
Before the lease was executed, the defendant had prospected upon the leased land, drilled holes upon it and upon land surrounding and adjoining it; it was in possession of blue prints of this prospecting and drilling, and entered into the lease without demanding further opportunity for investigation. It is conceded that it never did any actual mining. On the other hand, it is undisputed that it began entries on land adjoining tl\e leased land and drove same towards that land, and, after a short drive, slate and rock were struck, which made, the further driving of that entry impossible. Defendant argues that it has done all that can reasonably be expected, and that there is no assurance that it Avould not forever strike stone and the like, just as it has heretofore, and that, having no surface rights, it may not make a direct test upon the leased land itself. In effect, this is a contention that, if reasonable effort on the
In this connection, it may well be added that no one other than defendant can sink air and water shafts, without which coal mining under the leased land conld not well be carried on; that the contract itself gives it the privilege to sink such air and water shafts as shall be necessary for the operation of the mine; and defendant agrees to drain off by underground tiling all. water pumped from the mine to the surface — and none but defendant has the right to do this draining.
As it seems to us, all of it makes clear that here was
We find nothing in confiicL with the conclusion we reach in the two cases upon which appellant relies. Carl v. Granger Coal Co, 69 Iowa 519, is an action on lease and to recover damages for failure to perform its condition. The contract contained a provision:
“It is further understood that the defendant agrees to commence work as soon as practicable, and will mine coal from the plaintiff’s land by June 1, 1885, providing there is found a workable vein of good, merchantable coal.”
The most decided is that, where the contract is made to depend upon the finding of merchantable coal, one who seeks damages for breach of the lease must make proof that such coal was found, and that, for the mere failure to prospect for coal where its' existence is unknown, nothing more than nominal damages may be recovered.
Ellis v. Cricket Coal Co., 166 Iowa 656, was an action on contract for minimum royalty on coal not mined, and defendant had judgment. The contract was that defendant was to commence mining or paying royalty “on said coal” on the 1st day of April, 1906, and to prosecute the same with reasonable dispatch, and to “continue the mining of such coal until all the .merchantable and minable coal is taken from said land.” It was further provided that all money paid as royalty in excess of the sum produced from actual mining should be considered as advanced royalty, “and shall, apply on the next or succeeding month’s royal
We are of opinion that the trial court is right, and its judgment is, accordingly, — Affirmed.