Bascom v. Cannon

Opinion by Mr. Justice Mitchell, The subject of controversy is correctly stated by the learned master as “ the right of the plaintiffs to enter on the land of defendant, and open for coal at any place they may see fit at fifty dollars per acre.” [231] As to the half of the coal conveyed by Cannon to Clapp in 1842, waiving all question as to the derivation of title from Clapp to plaintiffs, the alleged right cannot exist, for Clapp was expressly restricted to an entry through the twelve acres of which the undivided moiety was conveyed to him in fee. The only real question in the case arises from the clause in the agreement between Cannon and Henderson in 1844 giving the latter “ the privilege to enter the land and open for coal at any place he may see fit, at fifty dollars per acre.” Subject to the restriction expressed, that it was “ not to interfere with any of the buildings, spring or garden of the said Cannon,” it is fairly arguable that this was an unlimited and continuing right of entry and search until the coal, the subject of the grant, should be exhausted. It is however also susceptible, as the learned master indicates, of the construction that it was only a single option, and that “ Henderson having once selected the ground for his operations could not thereafter go on to other lands of Cannon and continuously and repeatedly exercise this privilege.” It is unnecessary for us to decide between these views, for the action of the parties themselves has settled the meaning beyond further dispute. The master finds that between the date of the agreement, March 1844, and December 1849, “ Henderson and parties under him went upon the premises and drilled and searched for coal all over said farm, and located and opened slopes, and mined and took out coal.” Not being able apparently to come to a settlement with Henderson, Cannon brought ejectment in 1848 to enforce the performance of the agreement and recovered a conditional verdict, to be released on payment to him of sixteen hundred and odd dollars, he “ making to the defendants a good title, agreeably to the article of bargain and sale,” and also for twelve acres of land “ to be surveyed so as to include all the slopes, openings and sinks in the occupancy of the defendants,” and also for the undivided half of certain other twelve acres. The defendants paid into court the sum named in the verdict, and on September 20, 1850, Cannon filed in court a deed for the undivided half of the coal under the whole tract, and for the twelve acres including the slopes and openings, and also for the undivided half of the other twelve acres. Neither verdict nor deed, it is to be observed, followed strictly the agree [232] ment of 1844. The verdict included twelve acres in severalty, surveyed so as to cover the slopes and openings already made by the defendants, and the undivided half of twelve more, not called for in the agreement, and the deed entirely omitted the clause giving Henderson the privilege of entry and search. This result of an equitable ejectment, reached six years after the original agreement, and in view of the acts and operations of the parties in the meantime, raises a strong inference that it was meant for a compromise, adjustment, and settlement of all questions of rights between the parties. And when we add the facts found by the master, that “ since shortly after the date of the said verdict, the said Henderson and those under him have mined and removed a considerable quantity of coal, but as to the surface have confined themselves in making drifts, sinks, slopes and openings to the twenty-four acres ” and that “ no digging, mining or removing of coal was ever thereafter done or attempted on said land outside of the twenty-four acres,” until 1887, a period of thirty-seven years, the conclusion becomes irresistible that the parties accepted the verdict and the deed as a final settlement, and that thereafter all the plaintiffs’ rights and privileges under the agreement ceased. For several reasons, each conclusive in itself, plaintiffs cannot sustain their alleged right as a necessary incident of the grant, or by analogy to a way of necessity. The parties having considered and agreed upon the mode of access to the coal conveyed, no implication can be allowed of any other way however convenient. Further, the right claimed is not of access to coal known to be there, but a preliminary right which can only arise by express agreement, to search and ascertain if there is coal there at all. And lastly, even if the claim were of access to the coal conveyed, the master finds that the existence of any body of mineable merchantable coal underlying the Cannon land outside the twenty-four acres, is, owing to the peculiar character of the coal and the way it lies in pots or basins, “ no more than mere conjecture.” On the merits of the whole case the plaintiffs have failed to sustain their claim, and for this reason the bill was rightly dismissed. Decree affirmed.