
    Augusta C. Genet, Pl’ff, v. The Pres’t, etc., of The D. & H. Canal Co., Def’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 2, 1890.)
    
    1. Contbact—Mining lease—Injunction.
    In March, 1864, plaintiff and defendant entered into an agreement in regard to mining upon plaintiff’s land. The contract gave defendant “all the coal contained in, on or under” the lands described in the contract, “together with the right to enter upon and into the said lands and to dig, mine and remove said coal.” It had the right to dig and construct slopes, shafts and tunnels, and to build railroads, etc. It was also “agreed that the party of the second part * * * may use and enjoy the rights and privileges hereby granted * * * for mining * * * coal under this agreement * * * for mining, preparing and. forwarding coal from any adjoining or contiguous lands. Held, that the same rights which defendant acquired to mine from plaintiff’s property it acquired to mine coal from adjoining property, and that so long as it fulfilled the contract by taking 80,000 tons from plaintiff’s land per year its right to take coal from adjoining property by the machinery on plaintiff’s land could not be interfered with.
    2. Same.
    As the contract gave defendant the right to pile culm as a part of the right to mine coal on plaintiff’s land, it followed from the plain language of the contract that' the same right existed as to coal mined from adjoining land.
    
      3. Same.
    The right to construct drains and tunnels was not confined to the coal, but granted the right to go through the rock anywhere beneath the surface that the defendant should consider necessary.
    4. Same.
    In all the defendant did in reference to the water, it was within its strict legal rights and that plaintiff had shown no injury, and the possibility that if the pumps should break down or strike occur the pumping should stop and the mine be flooded was hardly sufficient to be made the basis for an application for the exercise of a court of equity.
    Appeal from a "judgment of the general term of the superior court of the city of New York, which modified, and as modified affirmed, a j udgment entered upon the report of a referee.
    On the 28th day of March, 1864, the parties to this action entered into an agreement, the parts of which material to this controversy are stated in the opinion. The complaint based upon this agreement set forth two causes of action.
    
      First. To recover damages for breach of the contract in failing to mine from the land described therein as much coal as could be mined therefrom with capital and industry.
    
      Second. For an injunction restraining the defendant from using the plaintiff’s land and the works erected thereon to mine coal from adjoining and contiguous lands until all the plaintiff’s coal had been mined, and from using' the tunnels in and through the coal for the purpose of drawing water from said adjoining lands on to the plaintiff’s lands and requiring them to close up said tunnels, except so far as they were necessary to mine coal from plaintiff’s land.
    The first cause of action was dismissed at the trial, but upon the' second the judgment was substantially as prayed for in the complaint, and the defendant was enjoined:
    
      First. From using the shaft sunk upon plaintiff’s land and the breaker, machinery and structures erected thereon for the purpose of mining and preparing for market coal from any adjoining and contiguous lands until all the coal which it was authorized to mine from plaintiff’s lands, under the agreement aforesaid, had been taken out and prepared for market;
    
      Second. From depositing culm from coal mined from adjoining lands upon> the surface of plaintiff’s lands, and plaintiff was awarded the sum of $3,000 damages sustained from the piling of culm on the property prior to the commencement of the action.
    It was further required to close up the gang-ways made by it, connecting the shaft in plaintiff’s land (called the Marvin shaft), with shafts on adjoining lands called Leggett’s creek shaft and Van Storch’s shaft, and also with other adjoining lands of defendant called the “ Farm,” so far as to prevent water from said two last-mentioned shafts, and from the farm, running therefrom to and upon plaintiff’s lands.
    Bodi parties appealed to the general term, and that court modified the judgment by providing in substance that the defendant might use the shaft and machinery erected on plaintiff’s land to mine coal from adjoining lands, when said shaft and machinery should be used to its full capacity to mine plaintiff’s coal, and as so modified, affirmed the judgment upon appeal of both parties.
    From such judgment both parties appealed to this court.
    
      George 0. Genet, for pl’ff; Frank B. Smith and Matthew Hale, for deft.
    
      
      Reversing 10 N. Y. State Rep., 35.
    
   Brown, J.

The plaintiff sought to establish her first cause of action by proving a paroi agreement made at the time of the execution of the written agreement, or prior thereto, and as a condition of its delivery. Upon well settled rules of evidence proof of such an agreement was properly excluded.

So much has been written by this court within recent years upon the rule which forbids the admission of oral evidence when Offered to vary the terms of a written contract, and the modifications and exceptions which exist as to that rule, that the subject is about exhausted, and no further discussion is needed or desired. It is sufficient to say of the plaintiff’s appeal, therefore, that this case does not fall within any of the exceptions to the rule, and the judgment dismissing the complaint as to the first cause of action must be affirmed.

Upon the defendant’s appeal we are to inquire into the propriety of the injunction that has been granted and the damages that have been awarded, and the first and most important question presented is whether the defendant under the contract acquired a present, absolute right to use the shaft, breaker and machinery and other structures erected upon the surface of plaintiff’s land to mine and prepare for market coal from an adjoining and contiguous property.

This right defendant has heretofore exercised' and has mined coal from the plaintiff’s property and from adjoining property through the Marvin shaft, the proof showing that from 1876 to May, 1886, 497,614 tons had been mined from plaintiff’s property, and 608,771 tons from adjoining lands. This right has been denied to' the defendant by the judgment awarded by the referee, and it has been granted conditionally by the general term, but upon such terms as absolutely nullifies the right

The solution of the question requires an examination of the contract to determine precisely the rights and obligations of the parties thereunder. It is necessary to understand clearly what it is that the defendant has acquired and what obligations it has assumed.

The first thing acquired by the defendant was “ all the coal contained in, on or under ” the lands described in the contract, “together with the right to enter upon and into said lands and to dig, mine and remove said coal.”

It has 'the right to mine all the coal upon the land described in the contract and this is without limitation as to time, except so far as that element may be controlled by the covenants and obligations thereto of the defendant, and it has the privilege to increase the quantity' to be mined in any one year beyond the amount stipulated to be mined, viz., 20,000 tons, and to diminish the quantity for any succeeding year or years by an amount corresponding with such increase.

Second. It acquired the right to dig and construct slopes, shafts and tunnels upon said premises; a right of way for railroads, switches, terminals, mine roads, wagon roads, ditches and drains that it might be necessary to construct across and upon said tract; the right to erect drains upon the surface; the use of land for digging air shafts that might be considered necessary, with the right to dig them ; the use of land for repair shops and any other shops or building deemed necessary for the prosecution of its business; the use of land for piling coal or culm and all other appurtenances for mining, receiving, removing,. cleaning, scouring, dumping, storing, preparing and forwarding the coal to be mined under the agreement.

Third. It acquired the right to use and occupy the rights and privileges granted and the openings, buildings, fixtures and appurtenances made and constructed by it for mining, preparing and forwarding coal from the Genet property, for mining, preparing and forwarding coal from any adjoining or contiguous lands until the lands it should desire to take coal from, and that could be mined and taken out through said openings, shafts and slopes, should be exhausted.

Also to rebuild, reconstruct or remove any or all of the buildings, fixtures, machinery, appurtenances and improvements during the continuance of the agreement, and until the coal in the adjoining and contiguous lands that could be worked from said openings, shafts, slopes and tunnels should be worked out.

In consideration of the granting of the rights and privileges specified, the defendant agreed to mine from plaintiff’s land in the years 1864 and 1865 not less than 10,000 tons of coal and 20,000 tons in each and every year thereafter.

To pay for 10,000 tons in each and every year whether the same was actually mined or not, and in case 20,000 tons was not mined in 1866 or any subsequent year, interest at the rate of seven per cent, per annum was to be paid to the plaintiff upon such sums as the deficiency should amount to; such interest to be continued until the full quantity agreed to be taken out was reached. And it was to have the privilege of taking out at any time thereafter a quantity of coal equal in amount to the deficiency it may have paid for in any previous year or years. And for coal mined it agreed to pay at the rate of 12|- cents per gross ton.

The rights and privileges granted by this agreement to the defendant in the surface of the land, so far as they applied to mining coal on plaintiff’s land, became as much its' property as the coal beneath the surface. They were necessary for the prosecution of its business and without them the value of the coal would have been materially decreased.

They were for immediate enjoyment and the grant of them was for present use. Hot only is that implied from the very nature and character of the transaction, but the language of the agreement is that of a present right. The language is the parties of the first part hath leased and doth hereby lease, etc., etc. * * * the right to enter into said lands and to dig and remove said coal through, or out of any shafts or tunnels they may dig or construct upon the premises, etc., etc., and the parties of the first part further lease and grant ” rights of way and use of land, etc., “and all other appurtenances they may require for mining” etc., etc., “the coal to be mined under this agreement.”

There is no doubt and no claim but that all the privileges thus leased and granted passed into the immediate possession and enjoyment of the defendant upon the execution of the agreement. Turning now to the grant of the privilege of taking out coal from adjoining lands through the plaintiff’s property, the language is equally plain. It is “ It is further agreed that the party of the second part * * * may use and enjoy the rights and privileges hereby granted * * * for mining * * * coal under this agreement * * .* for mining, preparing and forwarding coal from any adjoining or contiguous lands.”

It is impossible to construe this language into a grant of a future enjoyment. There is no limitation or condition upon it The words are apt and appropriate for a grant of, present enjoyment, and there is nothing anywhere in the instrument to indicate that these rights were to be used and occupied only when coal on plaintiff’s land was exhausted.

The same rights which defendant acquired to mine coal from plaintiff’s property it acquired to mine coal from adjoining property.

Again, there is no reason for such a construction as the lower courts have given to the instrument.

The plaintiff’s interest in the surface of the land requires that the privileges granted therein to the defendant should terminate as soon as possible, and such a result will be reached sooner by permitting mining from both properties to proceed together than to postpone one until the coal on the other is exhausted.

The construction adopted by the general term may be a potent lever to compel defendant to mine and pay for coal on plaintiff’s land much more rapidly than it has heretofore done or is now doing, but the judgment of the court cannot proceed upon such a reason unless the obligation to do so is clearly imposed by the agreement of the. parties, and that it is not imposed is too clear for argument, and was so held by the referee in dismissing the first cause of action.

In language so plain that it admits of no doubt, the obligation to mine coal within any one year is limited to 20,000 tons, and even as to this amount it is contemplated that it may not always be done, and so it is provided that defendant when it mines less than that amount may pay interest upon the deficiency until it is made up in subsequent years ; and in case it mines more than 20,000 tons in any one year, it may reduce the production by the amount of the excess in any subsequent year or years.

We are of the opinion, therefore, that the contract granted to defendant a present right to mine coal from adjoining lands by means of the shaft and machinery constructed upon the plaintiff’s lands, and that the only obligation resting upon it as to the quantity of coal to be mined from plaintiff’s lands was to take out 20,000 tons a year, and that while it fulfills this obligation according to the terms of the agreement, its right to take coal from adjoining property by means of the Marvin shaft and machinery there erected cannot be interfered with. Such right does not depend upon any condition as to exhausting the coal from plaintiff’s land or exhausting the producing capacity of that property in any one year, and it cannot be subordinated to the mining of coal on plaintiff’s property.

It exists as a distinct and independent right, the use and enjoyment of which vested in the defendant upon the execution and delivery of the contract.

To hold otherwise would be to insert an entirely new stipulation into the contract, and instead of construing an agreement the court would be making a new one.

As to the right to pile on the plaintiff’s land culm or refuse coal taken from the adjoining property, which by the judgment the defendant is restrained from doing, and for which acts prior to the commencement of the action damages were awarded by the referee, there is but a single inquiry necessary, viz. : Is that one of the rights and privileges granted for the mining of the coal from plaintiff’s land. If it is, then it exists as to the coal mined from the adjoining property, for the agreement is that the same rights and privileges hereby granted for mining, preparing and forwarding coal under this agreement “ may be used and occupied ” for the mining, preparing and forwarding coal from any adjoining or contiguous lands.

Turning to the specification of the privileges granted for mining coal from plaintiff’s land, we find this, “and the parties of the first part hereby lease and grant to the party of the second part the right of way for all railroads, etc., etc., together with lands for piling coal or culm.”

The right existed, therefore, as to coal mined from plaintiff’s land by express grant, and it follows from the plain language of the contract that it exists as to coal mined from adjoining and contiguous lands.

The part of the judgment remaining to be considered required and directed the defendant to close up the gangway and gangways made by it, connecting the Marvin shaft with the Leggett’s creek shaft and the Van Storch shaft, so far at least as would prevent the water from said two shafts from running therefrom to and upon plaintiff’s land. Also to close up the headings or gangways leading from said Marvin shaft to defendant’s lands, known as the “ Farm,” so far as to prevent the water from the workings on said farm flowing upon the plaintiff’s land and to said Marvin shaft.

Under the construction we have given the contract between the parties, the defendant has the right to mine coal from adjoining lands through the Marvin shaft, and this right necessarily' implies a grant of means of access to those lands from the plaintiff’s lands. It follows, of course, that defendant has the right to connect the headings and gangways on plaintiff’s property with the workings about the Leggett’s creek shaft and upon the “Farm,” and through them, to bring to the Marvin shaft the coal mined upon those adjoining properties. The workings about the Yan Storch shaft are connected with those about Leggett’s creek, and need not be particularly referred to.

The proof showed that there were at least fifty headings or openings through the coal which crossed the line between the plaintiff’s and adjoining properties, and it is very plain that so far as the Leggett’s creek workings were concerned the judgment, in the respect now under consideration, could not be executed without depriving defendant of its right to mine the coal from those workings through the Marvin shaft.

The plaintiff's land lies in a basin formed by it and surrounding property. The bottom of the basin is at the southeasterly side of the plaintiff’s land near the Lackawanna river, and the Marvin shaft was sunk at the lowest point, and the seams of coal all dip downward toward that point. The shaft intersects each vein of coal, and at the point of intersection each vein of coal is at a lower level than it is on the adjoining lands. So that as thé headings are driven from the Marvin shaft, the water naturally flows to that point.

The “fourteen foot vein,” from which the bulk of the coal has heretofore been mined, is nearly twelve felt lower at thé Marvin shaft than at the Leggett’s creek shaft, and it would be impossible, therefore, to close up the headings and gangways so far as to prevent the water from flowing through the same and still preserve the right to draw the coal from the workings about the Leggett’s creek and Yan Storch shafts to the Marvin shaft.

But we are of the opinion that the contract gives to the defendant the right to drain the water to the Marvin shaft. The words of the contract under consideration which operate to carry the coal,, are that the parties of the first part “ doth hereby lease unto the said” party of the second part “all the coal contained in, etc., etc., together with the right to enter upon said lands and dig, mine and remove said coal," and the legal effect of such conveyance was to vest in the defendant an estate in fee in the coal as a separate piece of land. Caldwell v. Fulton, 31 Penn. St., 475: Caldwell v. Copeland, 37 id., 427; Armstrong v. Caldwell, 53 id., 284; Sanderson v. City of Scranton, 105 id., 469; D., L. & W. R. R. Co. v. Sanderson, 109 id., 583; Fairchild v. Fairchild, 7 Cent. Rep., 873.

The defendant owned the coal in adjoining lands, and the contract contemplated the mining of the coal on the whole property-through a shaft or shafts, to be constructed upon, the plaintiff’s land, and, as I have shown, that the mining of coal from both properties should be carried on simultaneously.

The geological situation of the country it is fair to assume was known to both parties, and that in driving the gangways through the coal the water would naturally, by force of gravity, flow to the lowest point on plaintiff’s land. The ■ agreement also contemplated the necessity of the removal of the water, and we find provision made therefor in the following language:

“The parties of the first part further hereby lease and grant to said party of the second part, its successors and assigns, without charge, the right of way for all tunnels, * * * ditches and drains they may find it necessary to construct across or upon said tract, with the right to erect drains upon the surface for the proper mining of said coal.”

Bearing in mind that these rights and privileges may be used and occupied ” for mining coal from adjoining lands equally with the mining of coal from the plaintiff’s land, and they appear to cover the question under consideration completely. The right to drain upon the surface is distinguished from the right to construct drains and tunnels “ across and upon said tract,” and the latter expression is broad enough to embrace and was intended to embrace drains beneath the surface.

Bearing in mind, also, that the legal effect of the contract was to vest the title of the coal in the vein on plaintiff’s land in defendant, and it becomes apparent that the right to construct drains and tunnels was not confined to the coal, but was intended to and did grant the right to go through the rock anywhere beneath the .surface that the defendant should consider necessaiy.

It follows that as defendant owned the coal it could use the headings and gangways through the same for drains, if it so desired, and if the fact was as the referee found that the whole of the vein was cut through in the passage way between the two shafts, and that the water flowed upon the surrounding rock and not in the coal, there was no trespass, for the reason that the defendant had a right to use the adjacent rock for such purpose.

The right to construct those drains, and to use and occupy ” them for the purpose of mining the coal from the adjacent lands; also of necessity implied the right to bring the water to the surface, and get rid of it. The point where this would be done is left entirely to the defendant’s judgment and plainly would be at the shaft, and the right to construct drains upon the surface was granted for that purpose.

The proof shows and the referee found that large pumps had been placed in the Marvin shaft of a capacity more than sufficient to remove all the water flowing to that point and that it was discharged through an underground drain into the Lackawanna river and none of it was discharged on the surface of the land.

We are thus brought to the question in this case that it is necessary to consider, and that is, what injury has the plaintiff suffered from the defendant’s acts in reference to the water. None of it reaches the surface of the land and the whole substratum of rock is burdened with a servitude for ditches, drains and tunnels.

There is no- finding of any injury and no proof of any, so far as I am able to find. But from the opinion of the learned referee it appears that the injury is one anticipated rather than sustained.

It would not be fair or proper to call it a threatened injury, as that could not be said when the means employed to remove the water are more than adequate and had never failed. But it is said that if the pumps should break down or strike occur the pumping would stop and the mine be flooded.

Such remote possibilities, which properly belong to the category of accidents, are hardly sufficient to be made the basis of an application for the exercise of the great power of a court of equity. “Injury, material and actual, not fanciful or theoretical or merely possible, must be shown as the necessary or probable results of the action sought to be restrained.” People v. Canal Board, 55 N. Y., 390-397.

We are of the opinion, therefore, that in all that defendant did in reference to the water, it was within its strict legal rights and that plaintiff has shown no injury.

This right of drainage was one that defendant was entitled to use for the purpose of mining its coal on the adjoining lands. Assume its exercise must be limited to that which is necessary to mine the coal, there is no proof that any tunnels or underground channels had been constructed connecting the plaintiff’s land with the adjoining property,.except such as were constructed in the ordinary course of mining, and through the coal. The heading from the Marvin shaft to the Leggett creek shaft was primarily built to afford a second opening for the mine, as required by a statute of Pennsylvania, passed in 1870.

It was proper to unite the two shafts for the purpose of complying with that law, and there is no force in the argument that the second opening should have been made on the plaintiff’s land. The defendant had the right to unite its workings on all the properties into one mine, and there is no construction of the contract possible which would prevent it from so doing or from utilizing the other shafts for additional -openings to the Genet property.

It had also the right to mine the coal on any of. its lands at any point most advantageous to itself and so long as the manner of its working is not improper or unworkmanlike and' does no injury to plaintiff’s rights and its obligations towards the plaintiff are fulfilled, there is no cause for complaint and there can be no interference with defendant in its mining operations.

We are of the opinion that the evidence does not disclose any violation of plaintiff’s rights by defendant or that it has in its mining operations passed beyond the proper exercise and enjoyment of any of the privileges granted to it by the contract.

Testing this contract from the standpoint of the trial, many of its provisions appear to be burdensome to the plaintiff, but we cannot say that they were so at the time of its execution. It appears to have been fully understood and intelligently entered into and the rights granted under it are vested and cannot now be disturbed.

Our opinion is that the judgment granted by the referee upon the second cause of action cannot be sustained, and as a new trial would be of no avail it must be reversed and the complaint dismissed, while the judgment from which the plaintiff' appealed is. affirmed, with costs.

All concur, except Haight, J., absent.  