193 Iowa 365 | Iowa | 1921
The petition alleged that the defendant Mammoth Vein Company and defendant Shugart, having the contract for constructing the grade, had entered upon plaintiff’s premises, and were engaged in the construction of a grade for the railroad. Later, plaintiff amended the- petition, stating that, at the time of the trial, in October, 1919, said defendants had continued the work of grading, and that they intended to place ties and steel upon the grade, and to fence the right of way. Said defendants admitted that they were constructing a coal switch over plaintiff’s land, but alleged that it was being constructed for and in behalf of the Wabash Railway Company, under authority from the Excelsior Coal Companythat this authority was originally granted by a deed from plaintiff to the Excelsior Coal Company, by which said coal company purchased the coal underlying all of plaintiff’s land, and certain rights in the surface, for the sum of $4,440; that the deed was made in 1903, and recorded a short time thereafter. The purchase price was paid to plaintiff at the time of the execution of the deed. The coal under plaintiff’s land and in the coal field was undeveloped and untouched until 1917. None of the rights under the deed had been exercised for several years, and plaintiff’s land had'not rendered anything for the money received. The rights conveyed in the surface, under which defendants claim they appropriated the right of way in question, are contained in Paragraph 6 of the deed, and are as follows:
. “The right to appropriate and use and to authorize and cause any railroad company to appropriate and use, for railroad right of way to and from any mine or mines, the surface of said land over the coal above described and granted upon paying for such use to the owner at the time of any such appropriation of any land so appropriated over the said one; hun*369 dred and six (106) acres of coal, at the rate of seventy-five ($75) per acre, and upon paying to the owner at the time of any such appropriation of our aforesaid interest in any land so appropriated of the aforesaid fifty-two (52) acres, at the rate of twenty-five dollars per entire.acre; but the right last above mentioned is nevertheless granted upon these two express conditions: First, that any such railroad company shall properly fence its railroad upon said land and there put in all necessary cattle guards and crossings and properly maintain all thereof so long as it shall there operate its railroad; and second, that whenever any of said land appropriated as last aforesaid shall cease to be used for such railroad purposes the right lastly above mentioned shall in respect thereto wholly cease and determine. ’ ’
Other rights and privileges were granted in Paragraph 2 of said deed, which reads:
‘ ‘ The right to drill, sink, construct and operate in and upon said land all such prospect holes, prospect shafts, air, water and hoisting shafts, and all such slopes as said coal company, its successors or assigns shall at any time deem expedient; and to have and use sufficient right of 'way to and from the same; but the right lastly described is nevertheless granted upon these two express conditions: First, that no hoisting shaft shall be located within forty (40) rods from said dwelling house or from said barn; and second, that the said coal company, its successors or assigns, shall properly fence and keep fenced, all parts of the premises affected by the exercise of the right last aforesaid.”
Paragraph 3 grants the right to appropriate and use the surface .of said land at and about any hoisting shaft; Paragraph 4, the right to use the surface of said land to the extent of one fourth of an acre at and above each air shaft and water shaft, without other or further compensation; Paragraph 5, the right to dig and dump out of shafts, coal from any neighboring' land, and for such purpose to use such entries under the land herein-before described. The Excelsior Coal Company intervened, and alleged that, during the latter part of 1902 and the early part of 1903, it purchased from the different owners (about twenty) the coal underlying their several parcels of land in a
The Wabash Railway Company intervened, and alleged that it had made a survey and located the line of railroad, and that it was engaged, through defendant Shugart, in constructing the road; that, when the railroad is completed, it is to be
Before defendants went on plaintiff’s land, the Excelsior Coal' Company, by appropriate resolution, made a formal appropriation of the necessary right of way across plaintiff’s land, for the construction of a railroad track. The plaintiff
The president of the Excelsior Coal Company testified that since he has been active in the affairs of the company, it had been desirous at all times of obtaining a railroad over which they could ship the products of any mines which might be opened on the property; that coal lands without a railroad immediately adjacent thereto are valueless; that the reason his company authorized the Wabash Railway to construct the road over its property and the property controlled by .it was in order ■ to give facilities they wanted, and in order to develop their property; and that the ultimate object of the road was not only to mine coal in their east block, but to take that out in the west, by extending the railroad, or by-taking out the coal in the west block through underground entries and hoisting it on the Roberts land; that the road was located and surveyed with reference to the location of a shaft upon the east block of the Excelsior Coal Company’s coal, so that the line would be located in an advántageous way for the sinking of a shaft on the Excelsior property; that two surveys were made, to determine the most practical line' for a railroad connecting with the Wabash and Burlington roads at Tracy, and the line of the railroad was located and staked; that it is not practicable to reach the west block of coal of the Excelsior Coal Company, including the ■portion purchased by. the Greater Mammoth Vein Coal Company from the Excelsior Coal Company, by another route than on the line of railroad being built; that the road stops on the Roberts land, and is so located that it can be extended west
1. As said, the more important point in the case is the construction of the deed from plaintiff to the Excelsior Coal Company. Counsel for both parties have cited a large number of cases, and the argument is somewhat extended as to whether the rights granted the Excelsior Coal Company by the plaintiff to construct a railroad constitute an easement appurtenant or an easement in gross. Appellant erroneously, we think, assumes that there is but one easement granted. It is -quite clear that other easements than the one giving the right to build a railroad across the land are contained in the deed. There might be some difficulty in classifying some of the different kinds of easements, according to the books. There seems to be some difference of opinion in some of the cases. Appellant’s first contention was that the provision as to the railroad was appurtenant only to the land conveyed by plaintiff. They so plead it. Some of the eases cited by appellant are on the proposition 'that the easement is appurtenant only to the land conveyed by the plaintiff. They now contend that it is appurtenant to the lands owned by'the Excelsior Coal Company, — that is, the coal field of that company alone. In other words, we understand them to now concede that the right is granted to convey coal across plaintiff’s land from the block of coal of the Excelsior Coal Company lying to the east, and the coal in the block of said company lying to the west, but they say there is no easement or right granted to haul coal from any other land. In other words, they seem to concede that this would apply to the coal field or to that part of the coal field owned and controlled by the Excelsior Coal Company. True, in the pleading before set out, appellant pleads it both ways. ' It should be noticed that the defendant Greater Mammoth Vein Coal Company owns a part of the Excelsior Coal Company’s land lying west of the
We shall mention some of the circumstances bearing on this question. In the fall of 1902, the Excelsior Coal Company started to drill a large body of these coal lands in the vicinity of plaintiff’s land. As the drilling progressed, in the fall of 1902 and the spring and early summer of 1903, the company purchased outright the coal, consisting of about 2,200 acres. The drilling progressed for over a year; there were four or five coal drills working; and it was generally discussed in the neighborhood that the Excelsior Coal Company was purchasing the entire coal field. Another witness says that Mr. Shepherd, of Oskaloosa, came over and took options on the land, and drilled it; that he was through, the country quite a while; that he first optioned the land and then drilled it, and then, if they were satisfied with it, came to the owner and tried to buy it. It appears that they were not able to purchase the Roberts coal. Another witness testified that it was talked around that they were getting all the coal, — trying to get all of it; “don’t know of but one piece but what they did get, right there.” All the deeds taken were similar in form, and conveyed identical sur
The lands purchased were the larger part of a general coal field of about 3,000 acres. The Excelsior Coal Company paid full value for the rights claimed. The deeds granted the right to a right of way to a shaft or mine on plaintiff’s land. It also granted the right to appropriate and use the surface, and to authorize any railroad company to appropriate it for railroad right of way to and from any mine or mines, upon paying therefor $75 per acre. We think that these two provisions conferred upon the Excelsior Coal Company the right to a right of way to a shaft on plaintiff’s premises, and to a right of way to a railroad for itself or for any railroad company across plaintiff’s land to any mine or mines. We think this means, to any mine or mines in the coal field, including that part which the Excelsior Coal Company could not or did not buy. It was generally understood in that neighborhood that the Excelsior Coal Company was trying to buy all of it. It is significant that Paragraph 5 of the deed before set out gives the right to dig and dump coal from any neighboring land, and to use the underground entries under plaintiff’s land. It was in the minds of the parties that other coal than that dug from the plaintiff’s land might be hauled over the railroad constructed, under the provisions of the deed. The language does not limit the coal that might be so taken from.other lands to lands owned by the Excelsior Coal Company, the deed granting a right to sink a shaft on plaintiff’s land, and, as said, to use the underground entries. Clearly, it was not intended or contemplated by the parties that coal might be dug on other land, — for instance, the land of the Greater Mammoth Vein Coal Company, — conveyed therefrom to plaintiff’s land through a shaft thereon, and dumped on plaintiff’s land, without the right to haul it therefrom over the railroad to market. The deed from plaintiff
Without reviewing the many cases cited on the question as to whether the easement granted or created should be named in a class as appurtenant or in gross, within the meaning' of the legal terms, it is enough to say that, from the nature of the right and the intention of the parties, the easement was not appurtenant, in the sense that the right of way may be used only to haul coal mined from the land of the plaintiff or the Excelsior Coal Company. It is clear that the parties contemplated the larger field. Indeed, from the language of the instrument itself, there is little chance for argument, and it is less so when all of the circumstances are considered.
We are of opinion that the last proposition is well taken. This renders it unnecessary to discuss the other questions. It should have been said that appellees also contend that plaintiff, having dealt with the Excelsior Coal Company, is estopped to
The instant case is an action in equity, and for injunction, in which appellant seeks to test the existence of the coal company as a corporation. The statute in regard to injunctions is Code Section 4354. The action of quo warranto is provided for by Section 4313 of the Code. Under this, an ordinary action in the name of the State may be brought against a corporation acting as such, or exercising powers not covered by law, and so on. We held, in Harvey v. Kirton, 182 Iowa 973, and Nelson v. Consolidated Ind. Sch. Dist., 181 Iowa 424, that in such a case the action of quo warranto is exclusive. In both cases, an injunction was asked and denied, because the matter of testing the legality of a corporation or the election of officers therein must be determined by an action in quo warranto by the State. In the Nelson case, we said, at page 434:
“We think the rule equally well settled and sound that private citizens cannot raise such question by any form of direct attack. Quo warranto is the proper and, in the absence of statute, the exclusive proceeding to determine the question of the legal existence or validity of the organization of a public corporation. * * * The essential point is that the right to draw in question the legality of an existent body of the character mentioned is the prerogative of the state, and not of private litigants. * * * It is an application of the principle that public rights are to be vindicated by public authority. * * * The private litigant*379 should not be permitted to reach the same result by a change of form of action.”
In this case, the charter was issued by the state. The statute makes no distinction between school corporations and corporations like the one in question. These cases are, we think, decisive of this .point.
3. The foregoing are the points most argued and relied upon by appellant for a reversal. There is some suggestion that a contract for an easement is within the statute of frauds. We take it that this has reference to the agreement with the Wabash Railway Company. If this is the point, then it is enough to say that it is not denied by the party to be charged, but on the contrary, is expressly admitted, pleaded, and relied upon by both of the parties to that agreement; hence needs no evidence to support it.
It is also suggested that the contract is not assignable. The last proposition seems to be on the theory that an easement appurtenant cannot be assigned to a third person without the conveyance of the dominant estate. We think this has been disposed of by our holding that the easement is not appurtenant, in the sense contended for by appellant. It is more a question of the right to authorize a railroad to build a track, under the very terms of the contract itself. Under our statute, contracts are assignable.. But these points seem not to be relied upon.
The opinion is already too long, and we deem it unnecessary to further consider these two propositions. They are mentioned in the points, but not argued. It is argued by appellant that, if the deed is construed as defendants contend, defendants and interveners could construct other railroad tracks across his land. The defendants and interveners are not claiming any such right, and the record shows that they disclaim it. The decree of the trial court does not give them that right. It should have been said before, perhaps, that it is contended by defendants that, if the provision in plaintiff’s deed, and in the 20 or 21 other deeds from landowners in the Excelsior Coal Company field, is to be construed as appurtenant to each tract, they would have to build 21 railroads, and would then have the right only to transport the coal from one side of each tract to the other side of it.
“The person making a tender may demand a receipt in writing for the money or article tendered, as a condition precedent to the delivery thereof. The person to whom a tender is made must, at the time, make any objection which he may have to the money, instrument, or property tendered, or he will be deemed to have waived it.”
The receipt tendered with the second tender recites that it is under the deed from plaintiff to the coal company. At the close of the evidence, defendants amended their pleadings, stating that they were “ready, able, and willing, and now offer to pay said sum of money to the plaintiff, and also offer to do and perform, and to have performed, everything that is required by the terms of the deed, and offer further to do any and all things which this court may require of either intervener as a matter of equity.” This last offer in the pleadings, in equity, was clearly sufficient. But, as said, it came at the close of the evidence. As said, plaintiff refused to accept the first tender, and refused and even now refuses the tender in the pleadings. There is no pretense that he would have accepted the money under any circumstances. Oln the contrary, it appears that he would not have done so, even though the tenders had all been formally made, and in strict compliance with the law. As said, the amount due under the deed -was not a matter of dispute or contest, and the trial court found that the amount tendered was the amount due. The case is in equity. Under the circumstances, we think that the making of a technical tender is dispensed with and waived, plaintiff having declared, both by his words and by his acts, that he would not receive it. 38 Cyc. 144; Steckel & Son v. Standley, 107 Iowa 694; Austin v. Smith cfe Holliday, (Iowa) 109 N. W. 289. 26 Ruling Case Law 624 states the rule thus:
“Since the law does not require anyone to do vain or useless things, a formal tender is never required where it appears that, if it had been made, the money would not have been received. ’ ’
See, also, pages 625 and 626. It would seem that the only
5. It appears that, after the trial and decree in the district court, interveners paid the $506.25, with interest, into court. It is thought by plaintiff that, because of such payment, defendants and interveners have waived their right to appeal from the judgment against them for costs. The costs have not been paid. The appeal is from the judgment for costs. We think there is no merit in this claim. The defendants were required to pay this amount of money at the time of the appropriation of the right of way. They offered and tried to pay it before. It was necessary that they should pay it, or tender payment, before they went onto this land. By paying the amount into court which they were required to pay as a condition precedent to occupying the land, they are now but keeping their tender good, and preserving their right to occupy the land.
Another case, entitled Worth Stroud et al. v. Greater Mammoth Vein Goal Company et al., No. 264/33787, involves the same questions as the instant case, except as to the judgment for costs. That case was submitted with the instant case, and it is affirmed. The instant case is affirmed on the plaintiff’s appeal, and reversed on the appeal of defendants and interveners.