147 F. 931 | U.S. Circuit Court for the District of Western Pennsylvania | 1906
This is a bill to remove an alleged cloud bn the plaintiff’s title. In the years 1878 and 1880, the defendant J. Willcox Brown, a resident of Baltimore, Md., secured a large number of mining leases, aggregating about 16,000 acres, in different tracts, of various sizes, in Somerset county, Pa., as well- as a like number in the adjoining counties of Indiana and Cambria, nineteen of which, of the Somerset lot, covering some 2,400 acres, are involved in the present suit. These leases were indentures under seal, and severally undertook, for the consideration, in some cases of $5 and in some cases of $10, to grant, bargain, and to sell to the said J. Willcox Brown, his heirs, executors, administrators, and assigns, “all the iron ore, coal, cement, and fire clay, and all other minerals of every kind,” under the different tracts described, “including the 'privilege of boring any number of wells and taking therefrom, by such means as are or may be most practicable, petroleum, carbon, or coal oil, also any salt water that may be found on the premises and manufacturing the same into salt,” together with the full and exclusive right, liberty, and privilege of min
The section where these leases were located was entirely undeveloped at that time, except for farming, and was discredited as coal or mineral territory by the State Geological Survey. There was no railroad into it, and in view of this it was provided, in somewhat varying terms, in all but four of the leases here in controversy, that unless one was
The building of this road, however, did not lead to the mineral development of that section, which came about a number of years later in quite another way. In 1892 to 1894, Robert H. Sayre and others
In securing the leases in suit and others in that region, Mr. Brown did not expect to do any mining personalty, and he has not, either by himself or others, nor has he paid royalties, at any time, on any of them: his purpose being to sell the leases to others or to transfer them trt some company in which he had an interest, which would operate them. He sold some of his holdings in the southern part of the county in this way, and he made several attempts to interest parties in the others, including the New York Central Railroad people, "the Erie people, and the Baltimore & Ohio. I,earning of Mr. Berwind’s purchases, he finally offered them to him, but without success; these negotiations ending in the spring of 1895. after which no others were undertaken. In 1893 certain of the leases were assessed and sold for taxes, but were redeemed by Mr. Brown, who paid some $1,500 to do so. They were sold again in 189G, but this he resisted, and succeeded in having the sale set aside by the court. Learning in 1903 that the Berwind-White. Company were milling on certain of the lands which he had leased, he sent an engineer to investigate the matter, receiving from him a detailed and extended report which confirmed the information, upon which he took counsel with the idea of legal action. Some delay was experienced, however, with regard to this; the one-quarter interest, which he had assigned to the agent who secured the leases, being outstanding in the hands of various parties. But, these having been got into line, a corporation was organized — the New Amsterdam Coal Company, defendant — to which all interests were transferred in exchange for stock; and in 1901- actions were brought by that company- against the Berwind-White Coal Mining Company in the United States Circuit Court.
According to the law of Pennsylvania, by which the subject is necessarily governed, the so-called leases to the defendant Brown constitute a sale and conveyance -of the coal and minerals in place. This is the effect of all the cases, from Caldwell v. Fulton, 31 Pa. 475, 73 Am. Dec. 760, down, and, if reiterated declaration is to count for anything, is not to be gainsaid or denied. Sanderson v. Scranton, 105 Pa. 469; D., L. & W. R. R. v. Sanderson, 109 Pa. 583, 1 Atl. 394, 58 Am. Rep. 743; Hope’s Appeal (Pa.) 3 Atl. 23; Montooth v. Gamble, 123 Pa. 240, 16 Atl. 594; Fairchild v. Dunbar Furnace Co., 128 Pa. 485, 18 Atl. 443, 444; Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613, 23 Atl. 250; Lazarus’ Est., 145 Pa. 1, 23 Atl. 372; Timlin v. Brown, 158 Pa. 606, 28 Atl. 236; Plummer v. Hillside Iron & Coal Co., 160 Pa. 486, 28 Atl. 853; Lehigh & Wilkes-Barre Coal Co. v. Wright, 177 Pa. 387, 35 Atl. 919. “It is now well established,” says Rice, P. J., in Hosack v. Crill, 18 Pa. Super. Ct. 90, affirmed 204 Pa. 97, 53 Atl. 640, “that an instrument which is in terms a demise of all the coal in, under, and upon a tract of land, with the unqualified right to mine and remove the same, ¡s a sale of the coal in place; and this, too, whether the purchase money stipulated for is a lump sum or is a certain price for each ton mined, and is called ‘rent’ or ‘royalty,’ and also notwithstanding a term is created within which the coal is to be taken out.” It is true that in Denniston v. Haddock, 200 Pa. 426, 50 Atl. 197, there is an apparent attempt to hark back to something else; it being declared to be inaccurate and unfortunate to call such a conveyance a sale, because of the tendency to mislead and the rules with respect to sales being held not to be indiscriminately applied. This is also approved in Coolbaugh v. Lehigh & Wilkes-Barre Coal Co., 213 Pa. 28, 62 Atl. 94. But, whatever may be the modification introduced by these cases, the general doctrine remains that a grant of all the coal, with the .right to remove the same, however denominated and by whatever terms conveyed, severs the coal from the surface and vests in the grantee an estate therein, with all that is incident and appurtenant thereto; and that in effect is what we have here. By indenture under his hand and seal, duly acknowledged and put on record, the grantor in each instance grants, bargains, and sells to the defendant J. Willcox Brown, his heirs and assigns, all the iron ore, coal, cement, fire clay, and other minerals of every kind, with the full and exclusive right of mining and removing the same, to and for his and their only proper use and benefit. This brings the case squarely within those which have been cited, and conveys a fee. It is true that a term is fixed within which these rights are to be exercised; but that is not material, and another is provided for, renewable forever, if it were. True, also, it is stipulated in most of the leases that a railroad shall be built within five years. But except as this introduces a condition upon which the estate is taken, and for breach of which it is made defeasible, it does not affect the character of the conveyance or the
As a condition subsequent, however, the promise to build a railroad has to be reckoned with, and the question is as to the effect which is so to he given it. Four of the leases are untrammeled by anything of the kind — the George Fosler, Samuel Wible, Gottlieb Bantlin, ánd Harrison Lohr — the alleged verbal promise to these parties being unstistained; and as to them the subject may he dismissed. Those which remain differ somewhat with respect to the terms of the condition and the step's subsequently taken to enforce it, requiring a separate examination as to each; but to a certain extent they fall into classes by which the matter is simplified. In four of the leases — -the David J. Shaffer, David Seese, Israel Seese, and Samuel Knavel — it is stipulated, with some immaterial variations, that if the railroad is not built or commenced along Paint creek within five years they are to be null and void. This is distinct and specific, and beyond question has not been performed. No claim is able to be made, as is done with regard to some, that the building of the Baltimore & Ohio branch along Stony creek in 1880, within the five years, was a fulfillment. All of the leases named are located in the neighborhood of Windber, four or five miles up from where Paint creek empties into Stony, at which distance a railroad along the latter is of no immediate, although there may be a remote, advantage. At all events it docs not meet the terms of the condition, which the lessors had the right to insist on, and is not, therefore, a compliance with it. But a condition subsequent, such as this, is reserved for the benefit of the grantor and his privies in blood, who alone can take advantage of the breach, unless it is otherwise stipulated. McKissick v. Pickle, 16 Pa. 140. It is not available — by all the authorities — to any and every one who may happen along afterwards in the title. Atlantic & Pacific Railroad v. Mingus, 165 U. S. 413, 17 Sup.
On December 17, 1892, Israel Seese and wife, by deed of general -warranty, sold and conveyed to Robert H. Sayre, his heirs and assigns, all the coal underlying the land which they had leased in December, 1878, to the defendant Brown; Mr. Sayre subsequently conveying to the Wilmore Coal Company'', by whom entry was made and the coal mined. The out and out conveyance of the coal in this way by the lessor was a direct and unequivocal assertion of title to and dominion over it, which being followed by the recording of the deed, the equivalence of livery (Caldwell v. Fulton, 31 Pa. 475, 72 Am. Dec. 760), as well as the entry on and mining of the coal under it, must be regarded, not only as expressive of an intent to take advantage of the lessee’s default, but as effective to do so, the same as by entry and forfeiture actually declared. The two grants being inconsistent and conflicting, the defeasible one, under the assault so made upon it, must give way; the outstanding estate being thereby divested, and revested in the" original grantor, for the benefit of his grantee. Emery v. De Colier, 117 Pa. 153, 12 Atl. 152; Venture Oil Co. v. Fretts, 152 Pa. 451, 25 Atl. 732; Wolf v. Guffey, 161 Pa. 276, 28 Atl. 1117; Bartley v. Phillips, 179 Pa. 175, 36 Atl. 217; Stone v. Marshall Oil Co., 188 Pa. 602, 41 Atl. 748, 1119; Aye v. Philadelphia Co., 193 Pa. 451, 44 Atl. 555, 74 Am. St. Rep. 696; Wheeling v. Phillips, 10 Pa. Super. Ct. 634. The case of Rannels v. Rowe (C. C. A.) 145 Fed. 396, where this is denied, is to be distinguished; the second deed, although recorded, not having been brought home to the original grantee by act or entry under it. This lease, so far as the coal is concerned, is therefore dead.
The same facts appear and the same result is reached as to the David Seese lease, where there was a deed of the coal to Sayre December 38, 1893, and by him to the Wilmore Coal Company afterwards. It is true, that on May 3, 1893, the lessor assigned to the same all his right, title, and interest in and to the lease with Brown, except as to other minerals than coal, together with the rents and royalties due and to come due thereon, by which, as it is claimed, the existence of the lease was recognized and the forfeiture waived. But this was long after the deed to Mr. Sayre, and having asserted the forfeiture of the lease in that way and undertaken to convey the title, as so revested in him, he
The case is somewhat different with the Samuel ICnavel and the David J. Shaffer leases, but not materially so. In each of these there was a deed of the coal by the lessor to Mr. Sayre — January 19, 1893, in the one instance, and December 29th, of the same year in the other— with a conveyance over to the plaintiff company later, as in the others; and on the same date there were assignments of the leases and royalties to Sayre and to the coal company, respectively. But the deeds and the assignments, although contemporaneous, were separate and independent, and the conveyance of the coal was not made subject to the leases, but was absolute and with general warranty. Whatever, therefore, might be the case, if this were otherwise, and whatever the purpose to he subserved by the assignments taken, which was probably merely precautionary, they cannot be hyld to qualify the effect of the deeds as an act of intended divestiture, followed, as it was, by mining Tinder them. Aye v. Philadelphia Co., 193 Pa. 451, 44 Atl. 555, 74 Am. St. Rep. 696.
In this connection the Jesse Slick and the John Koontz leases may as well he considered. In the former it was agreed that, if the lessee did not commence mining on the farm within five years, the lease was to be null and void; and in the other, "if the railroad be not commenced along Stony creek to Hagerstown within five years,” the same consequence should follow. Admittedly neither of these conditions was complied with, hut as to one. only was advantage taken of this by the lessor. On August 13, 19,00, John Koontz and wife, by deed duly recorded, sold and conveyed to John Itell. trustee, all the coal in the “B” or Miller scam — Itell in turn, May 9, 1902, conveying to Mr. Berwind, under whom the plaintiff company has entered and mined; and this, according to the conclusion reached above, avoided the lease to that extent. On the other hand, no action, so far as appears, was taken by Jesse Slick in his lifetime, nor by his heirs after his death. There was a "deed by his executors, January 27, 1900, conveying the coal to D. B. Zimmerman, who, May 1, 1902, conveyed the same to Mr. Berwind. But the executors possessed no authority to avoid, and their act must be regarded as of no effect to that end, leaving the lease, so far as this is concerned, in force.
As to the John D. Shaffer lease, also, the lessee failed to comply. The provision there was that the lease should be void if the railroad was not commenced along Stony creek within five years, which would be fulfilled in terms by the building of the Baltimore & Ohio branch in 1880, if it stood alone. But it was additionally provided that “the railroad must come within one and one-half miles of the said farm,” and this is as much a part of the condition as anything; and as the property was located some four miles up Paint creek, and the Baltimore & Ohio along Stony creek came no nearer than that, the condition clearly was not met. This is, however, of no advantage to the plaintiff; for, according to the test applied above, nothing was done to enforce the breach. It is true that there was a deed to Mr. Berwind from John
In five of the leases which remain — the Abraham Weaver, Josiah Custer, John Reel, and two Elizabeth Shaffers — -the condition under discussion assumes a somewhat indefinite form: “If the railroad be not commenced within five years from this date, then the contract to be null and void.” And in the other three — the Phillip E. Seese, Peter Gindelsperger, and Maria Young: “If the railroad be not commenced along Stony creek within five years,” etc. There is the further provision in the Phillip E. Seese, that “as soon as the railroad is completed the second party is to commence opening said minerals”; but this, as is correctly argued, was merely a covenant or promise, and not a condition, ■ the breach of which would entitle the lessor to avoid. With regard to all of these it is claimed that the condition was fulfilled by the construction of the Baltimore & Ohio branch along Stony creek in 1880, and so far as the last three are concerned this would seem to be the case. It is contended, however, that this was not the road contemplated, which was to run quite differently, veering off from Stony creek, up Paint or Shade, to Rockingham furnace, with Hagerstown as an objective point to the east; and that, while Brown may have put his rights of way at the service of the Baltimore & Ohio engineers, it does not appear that they were made use of, so as in any way to connect the two; also that the Phillip Seese and the Peter Gindelsperger leases were up Paint creek, in the neighborhood of Windber, and so not accessible from the road, which was of no benefit to them, except as a long spur was built into them therefrom. But the Baltimore & Ohio branch tapped the general territory, and it ran along Stony creek, which was all that was stipulated for, by the mouth of Shade and Paint, the full distance that the parties had in mind; and it thus fulfilled the letter, if not, indeed, the spirit, of the condition. Nor was it required, in order to do so, that it should be a railroad either promoted or built by Brown pall that was called for being a public means of transportation of this charactér, by which the coal mined could with reasonable facility be shipped to market. It is true that "the” railroad is spoken of, which might under proper circumstances be held to mean the one which was talked of at the time; but if this was intended to be insisted upon, or one which came into more immediate touch with the properties, it should have been so specified, as was done by some of the others, and .the matter not be left in its present indefinite shape. Conditions subse
The substance of what has been so' said applies with equal force to the Abraham Weaver, Josiah Custer, John Reel, and the two Elizabeth Shaffers, where the condition was simply that “the” railroad should be built, etc., without specifying what or where. One of these, the John Reel, so far as I can gather, is on Stony creek, directly along the line of the Baltimore & Ohio, the same as the Maria Young; and, while the others are up Paint creek some distance, they had a railroad in the one which was built which was reasonably accessible, and, if it was not the one which they intended to stipulate for, it is their own fault in not doing so with more definiteness.
It is not material, in view of the conclusion so reached, to follow any of the last-named leases further, to see whether advantage was taken of the condition, assuming, notwithstanding what has been so said, that it was after all broken. In the mixed state of the record, indeed, it might be somewhat difficult to do so. It may be noted, however, that on May 23, 3895, Josiah Custer and wife conveyed the coal and minerals to Mr. Berwind but it was expressly made subject to the Brown lease In substantially the same terms as in the conveyance from J ohn D. Shaffer rioted above, with the additional and further weakening provision that Mr. Berwind should indemnify and save the grantors harmless. On September 7, 1893, Peter Gindelsperger also conveyed to Robert Sayre the coal leased to Brown, Sayre subsequently conveying to the plaintiff company by whom it has been mined out, which, notwithstanding the contemporaneous assignment of the lease, would be effective to avoid it, according to what is held above, if there was anything upon which this could in fact be predicated. There are also similar conveyances and assignments by Abraham Weaver and wife and Elizabeth Shaffer which might possibly have that effect; but, as already stated, the memoranda to be found in the record are not sufficiently clear to enable this to be decided with any certainty, and they must therefore stand. And the same is to be said with regard to the Phillip Seese and the John Reel, both of which are complicated by the division of the tracts, by which the condition, being entire and incapable of apportionment, is thus destroyed. Brewster v. Lanyon Zinc Co. (C. C. A.) 140 Fed. 801.
To summarize the results upon this part of the case: Out of the 19 leases in suit, 15 of which have been called into question by reason of the condition with regard to the building of the railroad, the Israel Seese, David Seese, Samuel Knavel, David J. Shaffer, and John Koontz . — 5 in all — must be held to be no longer in force; the condition in each
There remains to be considered, however, the questions of forfeiture and abandonment which have been raised, and which apply to all the leases alike, affording additional ground, if sustained, for declaring invalid those which have been.already so held. The claim of forfeiture is based on the failure of the lessee tó mine or pay royalty; this being in absolute and flagrant disregard, as it is said, of the purpose of leasing, which was to secure to the lessors an income from the royalties to be received. Although no minimum quantity was fixed, a covenant to mine with reasonable diligence is unquestionably to be implied. Watson v. O’Hern, 6 Watts (Pa.) 362; Lyon v. Miller, 24 Pa. 392; Ellis v. Lane, 85 Pa. 265; Koch & Balliett’s App., 93 Pa. 434; Pittsburg Railroad Company’s App., 99 Pa. 177; Ray v. Gas Co., 138 Pa. 576, 20 Atl. 1065, 12 L. R. A. 290, 21 Am. St. Rep. 922; Patterson v. Graham, 164 Pa. 234, 30 Atl. 247; Aye v. Phila. Co., 193 Pa. 451, 44 Atl. 555, 74 Am. St. Rep. 696; Price v. Nicholas, 4 Hughes, 616, Fed. Cas. No. 11,415; Huggins v. Daley, 99 Fed. 606, 40 C. C. A. 12, 48 L. R. A. 320; Sharp v. Behr (C. C.) 136 Fed. 795; Brewster v. Lanyon Zinc Co. (C. C. A.) 140 Fed. 801; Rorer Iron Co. v. Trout, 83 Va. 397, 2 S. E. 713, 5 Am. St. Rep. 285; Sharp v. Wright, 28 Beav. 120. But the remedy for a breach is not a bill to forfeit or avoid, but an action-at law for damages (Koch & Balliett’s App., 93 Pa. 434; Janes v. Emery Oil Co., 1 Penny, [Pa.] 242), or, possibly, an ejectment, based on a right of entry, for nonperformance (Barker v. Dale, 17 Pittsb. Leg. Journ. 19, Fed. Cas. No. 988; contra, Blair v. Peck, 1 Penny. [Pa.] 247). The lessee, as we have seen, has an estate in the coal, which cannot be defeated or divested merely by reason of covenants broken; it not being so provided in the lease. “The common-law rule is well settled that a breach by the lessee of his covenants or agreements in the lease does not work a forfeiture of the term, in the absence of an express stipulation in the lease, or the reservation of the power of reentry in case of such breach. The general remedy of the lessor in such case is merely by action for the recovery of damages.” 18 Am. & Eng. Encycl. Law (2d Ed.) 369. And this applies to implied covenants, the same as to express ones. Harris v. Ohio Oil Co., 57 Ohio St. 118, 48 N. E. 502. It may be that an action at law is not at all times adequate, and that a chancellor under some circumstances would be authorized to interfere in consequence. Brewster v. Lanyon Zinc Co. (C. C. A.) 140 Fed. 801. But that is not the case here. It may not, indeed, be' altogether easy to say, without any minimum quantity reserved, for just just how much at any given time either of the lessors in the case in hand would be entitled to sue; but that cannot be regarded as insuperable, other mining operations similarly situated and conditioned affording a comparative guide. The" lessee was to account and pay every three months for what he had mined; and each lessor would therefore have the right, as the -measure of his damages, to sue at the
Quite different, however, is the matter of abandonment. Ordinarily this is a question of fact, to be determined by the circumstances; the intent being largely controlling. But under certain conditions it may become a question of law, to be declared by the court, particularly when the facts are undisputed. Atchison v. McCulloch, 5 Watts (Pa.) 13; Forster v. McDivit, 5 Watts & S. 359. Sample v. Robb, 16 Pa. 305; Paine v. Griffiths, 86 Fed. 452, 30 C. C. A. 182. Legally defined, it may be said to be the giving up or relinquishment of property to which a person is entitled, with no purpose of again claiming it and without concern as to who may subsequently take possession. 1 Cyc. 4; Moon v. Rollins, 36 Cal. 333, 95 Am. Dec. 181; Judson v. Malloy, 40 Cal. 299; Hagan v. Gaskill, 42 N. J. Eq. 215, 6 Atl. 879; Dikes v. Miller, 24 Tex. 424; Burke v. Hammond, 76 Pa. 172. It is the voluntary forsaking or throwing away of property, leaving it open to be appropriated by the first comer. McGoon v. Ankeny, 11 Ill. 558; Eads v. Brazelton, 22 Ark. 499, 79 Am. Dec. 88. It may be a question how far a vested legal title to a corporeal hereditament can ever be lost by mere abandonment or neglect (1 Cyc. 6; 2 Washb. Real Prop. [6th Ed.] § 1888; Mayor v. Riddle, 25 Pa. 259), although it is held that it may be, in Holmes v. Railroad, 8 Am. Law Reg. (O. S.) 716, and seems to be recognized as possible in Venture Oil Co. v. Fretts, 152 Pa. 451, 25 Atl. 732, although by nothing short of the statute of limitations, as it is there said. But with regard to inchoate, and particularly mining and other similar, rights and privileges, the doctrine is well established, differing only in its application with the. nature and extent of the rights and estates granted, and the character of the
• In the present instance, at the time the bill was filed, from 24 to 26 years had elapsed since the leases were executed, during which time not a thing has been done by the defendant Brown towards the mining or development of any of the properties covered by them. He has simply stood' by and held on, endeavoring at times to interest others who would do something, and in a few instances selling and disposing of his rights for a consideration. According to his own admission, he never intended to do more. In the meantime, by the independent enterprise and efforts of other parties, the territory which was before discredited has been tested and shown to be valuable, and a railroad built into it. The original lessors, evidently despairing of any results from his direction, and in some instances with a declared object of getting rid of the incubus of these leases have sold out to others by whom these developments -have been effected and the mining of coal extensively produced. Under the circumstances, the rights granted to the defendant by the leases in controversy must be regarded as relinquished and abandoned. No doubt, he took an estate in the minerals conveyed, but the gra.nt was for a definite purpose; the consideration to' the original owners being, not the paltry $5 or $10 recited in the deeds, whether paid
It is said, however, that in Plummer v. Hillside Coal Co., 160 Pa. 483, 28 Atl. 853 — followed hv the Court of Appeals of this circuit in a subsequent action between the same parties, 104 Fed. 208, 43 C. C. A. 490 — even the lapse of 60 years was held not to amount to this. But the distinction between that case and this is manifest. There there was a sale and conveyance of the coal outright for the price of $200, which in that, early day and place was evidently accepted as its full value; an extra $100 being provided for in case the coal proved to be abundant and of a certain thickness. Beyond this there was no obligation on the part of the lessee, except the nominal rent of $1 a year, inserted probably to carry out the idea of a lease which was the form of conveyance adopted. The consideration to the lessor was not thus.
It is finally said, however, that the questions litigated are legal, to be disposed of in a court of law, and that a court of equity cannot constitutionally take cognizance of them. North Penn Coal Co. v. Snowden, 42 Pa. 488, 82 Am. Dec. 530; North Shore R. R. v. Pennsylvania Co., 193 Pa. 641, 44 Atl. 1083. Actions, moreover, as is pointed out, have already been brought in the United States Circuit Court in New York, where they can appropriately be considered and passed upon, which it is the purpose of the present bill, as it is said, to forestall. Meek’s App., 97 Pa. 313. But the removal of a cloud by bill, in the nature of a bill quia timet, is a well-established ground of equitable jurisdiction, and may be resorted to under proper circumstances even where the legal title is involved, and although it may not have been previously established by action at law. 17 Encycl. Plead. & Pract. 278. It is not to be exercised where there is an adequate legal remedy, but that is not the case where the moving party is in possession, and so is not in a position to assert or protect his title by action. Martin v. Graves, 5 Allen (Mass.) 661; Stewart’s App., 78 Pa. 88; Dull’s App., 113 Pa. 510, 6 Atl. 540; Slegel v. Lauer, 148 Pa. 236, 23 Atl. 996, 15 L. R. A. 547; Sharon v. Tucker, 144 U. S. 533, 12 Sup. Ct. 720, 36 L. Ed. 532. Neither is a pending action a bar, where it is between other parties, and extends to only a portion of the controversy, which is the situation here. Eaton v. Trowbridge, 38 Mich. 454; Brewster v. Lanyon Zinc Co. (C. C. A.) 140 Fed. 801. The actions in New York are against the BerwindWhite Coal Mining Company, and not against the plaintiff, and, whatever the relation between the two, they are nevertheless distinct and independent parties, with separate, however intimate, interests. But, more than this, the actions referred to concern only a few of the leases, as to each of which the facts are more or less different, and differ, also, with respect to those which remain. Under similar circumstances it was accordingly held, in Eaton v. Trowbridge, 38 Mich. 454, not only that a bill to remove a cloud could be entertained as to the lands not so directly drawn in controversy, but that it might be extended to embrace those actually involved in the actions pending, so as to put an end once for all to- the whole litigation.
In the present instance, the material facts are not disputed, and the ' rights growing out of them are clear; and, having to be determined in any event by the court, it is of no consequence whether they are determined by a court of equity or a court of law. Ferguson’s App., 117 Pa. 426, 11 Atl. 885; Sharon v. Tucker, 144 U. S. 533, 12 Sup. Ct. 720, 36 L. Ed. 532. For the reasons given, the leases held by the defend
Let a decree be drawn in favor of the plaintiff to this effect, with costs.
This indenture, made this 3d day ot January, one thousand eight hundred and seventy-nine, by and between Abraham Weaver, of the county of Somerset and state of Pennsylvania, of the first part, and J. Willcox Brown, of the city of Baltimore and state of Maryland, of the second and other part, witnesseth: That said party of the first part, in consideration of the sum of five dollars, to them in hand paid by the said party of the second part (the receipt whereof is hereby acknowledged), have granted, bargained, sold, aliened, enfeoffed, released, and confirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release, and confirm, unto the said party of the second part, his heirs, executors, administrators, and assigns, all the Iron ore, coal, cement, and fire clay, and all other minerals of every kind, including stone or earth, as may be required for mining operations in, upon, and under all that certain tract of land situated in Paint township, county of Somerset, and state aforesaid, and containing one hundred and seventeen acres, more or less, and described as follows: Adjoining land with T. Hays, D. Shaffer, J. Nerenbergor, and others (all minerals are to be drifted), with the appurtenances thereto appertaining, together with the full and exclusive right, liberty, and privilege of mining, taking, and carrying away said iron ore and other materials, as heretofore more fully recited, with such control of, rights in, and privilege of using said land and water as may be necessary in conducting mining operations in a full and convenient manner. To have and to hold all the said iron ore and other materials, as Is more fully recited heretofore, and all the rights and easements aforesaid, in, upon, through, and under the said tract of land, and the hereditaments and premises hereby granted or mentioned, and Intended so to be, unto the said party of the second part, his heirs, executors, administrators, and assigns, to and for his and their only proper use and behoof, for the period of ninety-nine years from the date hereof. The said party of the first part further covenants, for his heirs, executors, administrators, and assigns, that he will, upon the proper demand of the party of the second part, his heirs, executors, administrators, and assigns, and at the expiration of the term herein provided for, and upon tender by the said party of the second part, his heirs,
In further consideration whereof, the said party of the second part, his heirs, executors, administrators, and assigns, promises and agrees with the said party of the first part, his executors, administrators, and assigns, that he will, at the expiration of every three months, whenever any ore or other materials, as hereinbefore more particularly recited, is mined, quarried, or otherwise reduced to possession by the said party of the second part, his heirs, executors, administrators, and assigns, and removed from the premises, render to the said party of the first part, his heirs, executors, administrators, and assigns. a true and correct account of the materials removed and taken from the premises during the said preceding three months, and pay it to the said party of the first part, his heirs, executors, administrators, and assigns, as follows; that is to say: For every ton of iron ore, of 2,240 pounds, ten cents. For every ton of coal, of 2,240 pounds, five cents. For every ton of cement or fire clay, of 2,240 pounds, five cents. For every ton of mineral ores, other than the above, of 2,240 pounds, five cents.
In witness whereof, the parties hereto have set their hands and seals this 3d day of January, in the year one thousand eight hundred and seventy-nine.
Abraham Weaver. [Seal.]
J. Willeox Brown. [Seal.]
State of Pennsylvania, Somerset County — ss.:
Before me, a justice of the pence in and for the said county and state, personally came Abraham Weaver, the grantor, and acknowledged the foregoing instrument of writing to be his act and deed, and desired the same to be recorded as such, according to law.
Witness my hand and seal the 3d day of January, A. I). 1S79.
Stephen H. Griffith, Justice of the Peace. [Seal.]
Bordering on this, however, it is said by Porter, J., in Cole v. Taylor, 8 Pa. Super, Ct. 19. with regard to a two years’ delay to operate an oil lease: “It would seem that the failure so to produce for so unreasonable a length of time ought in equity to work a forfeiture of the rights of the lessees.”