54 F. 29 | 8th Cir. | 1893
From the record in this case it appears that on the 28th of May, 1888, W. M. Harmon, F. H. Harmon, and Guy D. Harmon Durchased of the Union Pacific Railway Company 160 acres of land, situated in Boulder county, in the state of Colorado, a deed thereof being executed by the trustees of said company, which contained a reservation as follows:
' “Reserving to said company and its assigns all coal that may be underneath. the surface of the land herein described; also such right of way and other grounds as may be necessary for the proper working of any coal mines that may be developed upon said premises, and for the transportation of the coal from the same.”
On the 7th of January, 1892, the Union Pacific Railway Company filed in the United States circuit court, for the district of Colorado, a bill in equity, wherein it was averred that the greater part of the land conveyed bv the deed above described” is underlaid with a vein of coal of sufficient thickness to pay for working and mining the same; that, under the reservation in the deed, the company has the right to enter upon the land for the purpose of boring for coal and sinking and making shafts and other openings for the purpose of extracting and removing the coal; that on the 12th day of December, 1891, the company entered upon the land for the purpose of sinking a drill hole to the vein of coal, and for the purpose of sinking a shaft and making an opening for the mining and removing the coal therefrom; that, for the purposes named, the company placed upon the land a drill and other machinery; that W. M. Harmon, F. H. Harmon, and Guy D. Harmon removed said drill and machinery from the land, and by threats, force, and violence have prevented the employes of the company from again entering upon the land, and from drilling, working, or mining thereon. To this bill the persons named, to wit, W. M. Harmon, F. H. Harmon, and Guy D. Harmon, were made defendants, and relief, by way of injunction, was prayed, restraining the defendants from in any way or manner interfering with the company in entering upon the land, and sinking for, mining, and extracting the coal from said land.
To this bill an answer was filed, wherein it was in effect denied that there was any coal underneath the premises in question, and it was averred that the exception and reservation contained in the deed did not authorize the complainant to prospect upon the land for coal, or to sink holes thereon for any purpose; that the complainant’s railroad runs diagonally through the land, over a strip 100 feet in width, the fee of which is owned by the railway company; and that it was therefore within the power of the company to remove all coal underlying the land in question by shafts sunk upon the premises of complainant and levels run therefrom. It further appears that the defendants had removed the drill and other ma
It is stated in the brief of counsel for the appellant that “it was intended by counsel for appellant, and we think counsel for the ap-pellees had the same understanding, to have all the material facts necessary for a proper decision of this case embraced in the pleadings.” From the character of the pleadings and the arguments of counsel, we have no doubt that this statement of the intention of counsel is well founded. With regard to part of the issues in the case, the recitals in the pleadings are sufficiently full to enable the court to deal under standingly therewith; but, upon the main question in dispute, we do not think the facts necessary to a proper adjudication of the legal rights of the litigants are admitted in the pleadings. It is not made clearly to appear that there is coal in workable quantities upon this land, nor whereabouts thereon it is located, if in fact it exists. On part of the appellees it is strenuously contended that all the coal in the land owned by them can be readily removed by means of shafts sunk upon the premises owned by complainant, and levels connected therewith, thus leaving the suface of the land purchased by the appellees undisturbed and uninjured.
From the averments of the answer it appears that the defendants forbade the company from entering upon the land for any purpose, and yet it is not made to appear clearly that the sinking of shafts upon the premises, in the number and at the points proposed by the company, is reasonably necessary to the proper enjoyment of the rights secured to the complainant company by the exception and reservation contained in the deed under which the defendants claim title to the land in question. The record being in this condition, it would have been entirely proper for the trial court to have required the parties to have submitted evidence upon the matters which were left uncertain by the allegations of the pleadings, but which were necessary to a proper disposition of the case. This, however, was not done, and the case was heard finally upon an imperfect record. As thus submitted, we cannot say that it was error to refuse the granting of an injunction as prayed for in the bill; but we are satisfied that, upon the record as it now is, the circuit court should not have undertaken to pass finally upon the rights of the parties. It is entirely possible that the circuit court did not in
