
    (Seventh Circuit Mahoning Co. .O..Circuit Court-
    May Term. 1895.)
    Before Laubie and Frazier, JJ.
    FOSTER COAL CO. v. LEANDER MOHERMAN ET AL.
    Where a lease for mining coal provided that the lessee, should pay to the, lessor 81,000 yearly so long as they were holding the, lease and mining coal from the land, the lease granting to the lessee also the right of way through the mine to other coal banks under adjacent lands, and where the, lessees had ceased to mine coal from the bank in the mine, but while using the mine for their right, of way through it from other mines, were also occasionally taking out coal from the mine taken from the pillars left standing in the mine.' Held: That it being in the power and under the control of the lessees to put a sufficient force to work to take out the pillars in a short time, and stop the payment of the 81,000, or to temporize, with that work, they were bound to jjay the SI,000 a year for the time they consumed in taking out the pillars.
    Mere it appears from the bill of exceptions that the witnesses in testifying largely used a map pointing out places on it, such testimony being patent and plain to the. jury, but entirely unintelligible, to the reviewing court, it can not be said that all the evidence, is before such court that was before the jury, and the court will not be, able to determine the question whether the verdict is sustained by the weight of the evidence, or not.
    Error to the Court of Common Pleas of Mahoning Comity.
   Laubie, J. (orally).

The case of The Poster Coal Company v. Leancler Moherman et al. is brought to reverse the judgment of the court below in an action brought by the defendant in error to recover on a lease of coal under the lands of Moherman.

It is perhaps necessary only to say now that the lease provided that a royalty of at least $1,000 per year should be payable in October of each year to the lessor by the lessees ‘ so long as they hold this lease.'' The lease was made to the Kyles, and by them assigned to the Foster Coal Company, and while the action was against the Kyles originally, the Foster Coal Company was brought in upon an answer and cross-petition of the Kyles, and subsequently it was agreed that the Kyles were not responsible to the plaintiff on the lease, but whatever responsibility rested upon anyone to the plaintiff, rested upon the Fosler Coal Company. Consequently there was a verdict for the Kyles, and against the Foster Coal Company.

The first cause of action was for rent claimed to be due and payable in October, 1.889; and the remaining causes of action, four in number, were to recover the $1,000 yearly thereafter; that is, iu October. 1890. 1891. 1892 and 1893; and. as we understand it, the jury returned a verdict against the Foster Coal Company for these amounts, finding that the company was holding the lease for the purpose of the mining of coal under the land during all of that period.

There is no dispute here between counsel that the lessees were required to pay the $1,000 yearly so long as they were holding the lease and mining coal from under the lands.

There seems to be in the main two objections that are presented and urged to us as errors on the part of the court below, and they are iu reference to certain portions of the charge of the court to the jury, that the charge of the court allowed the jury-to find that the defendants were holding the lease while they were taking out pillars from the mine, and consequently that it left the jury to say that the defendants were holding the lease, within the meaning of the term, if there were pillars left in the mine.

There ivas no direct issue made upon either of these propositions. The only issue in reference to them was a denial upon the. part of the coal company that they were holding the lease during the period set up in the plaintiff’s petition, and the only allegation in reference to the pillars ivas that the defendant did not mine pillars, because it was necessary to leave them to support the superincumbent land from falling in and being damaged. No claim is made in the defendant’s pleading, as is claimed here, that they were entitled ■ to maintain the pillars in the mine by reason of the fact that under the lease they were entitled to hold the mine for the purpose of transporting the coal from adjacent lands through the entries. They make no such allegation in their answer, but they do allege, and they only allege, that they did not mine the pillars, because it was necessary to leave the pillars " there to prevent the sinking of the land and damage to it. But we do not pretend to say that the matter of itself was not an issue, because it was necessary,in order that the plaintiff should recover for the years claimed in his petition, for him to show that defendants were still holding the lease — -in other words, were still mining coal from the lands; and it would not be sufficient to show that they were holding under the lease simply and only for the purpose of transporting coal through the entries from the adjacent land.

The issues being such, we turn to the evidence to ascertain what that was in reference to the proposition, and it is not necessary in considering this question to determine upon whom the burden of proof rested to show that there was no minable coal left in the land at any period prior to October, .1893. It is sufficient to say that all of the evidence upon that proposition comes from the defendant coal company’s witnesses, and therefore whatever those witnesses say upon that question settles that proposition of fact, being undisputed.

It will not be necessary for me to turn to the record, as I think I can state sufficiently definite the evidence upon that ■'point. Passing by these statements of some of the coal 'company’s witnesses,that within a week of the trial they had been mining out some coal for use in their boilers — coal from some pillars in the mine — the evidence of these witnesses shows clearly that if they had ceased mining coal at all, it had been for four or five months prior to the trial, and that trial was in April. 1894, so that according to the testimony they were mining coal from the bank up to and after October, 1803. The last eighteen months of mining, from the statement, of these witnesses. consisted in the removal of the pillars. The boss of the mine, Kedgwin Head, in his testimony, explains fully the workings of the company in the mine. He described all of the entries that had been driven through tin1 mine, and the various rooms leading off from those entries, and he testified that for the last eighteen months of mining they were mining pillars, and he made it definite that drawing pillars was mining coal, and there was no counter statement from witnesses upon that proposition. They were mining the pillars during those eighteen months. Home of the months they drew out a considerable quantity of coal, and some not so much. April. 1892, they mined nearly BOO tons, and in another month subsequent, to that they mined out 191 tons. Now, in his direct examination — I speak of the mine boss, Head — he testified that they mined out all of the pillars except in the main and anchor entries, at. least all that was liable, and that could be mined with any degree of safety with reference to the condition of the roof; so that, according to the defendant’s own evidence, they had mined out all of the pillars, in the bank that were minable, save in those two entries. They therefore had mined out not only the room pillars but the entry pillars, except in those two entries, and in reference to the anchor entry, while it was some, distance from the main entry (the only one that was used to transport coal from other lands), he stated that it was necessary in his opinion to leave the pillars in the anchor entry7. Home of the pillars in the rooms, it was stated, were 300 feet long, and perhaps from six to twenty feet wide. The width is not so definitely stated, but it is fairly to ■ be inferred that the width of those pillars was from six to twenty feet, and consequently there must have been a considerable amount of coal in all of the pillars in the rooms of that mine when they ceased mining the coal from the face of the rooms, or had mined out all the rest of the coal. Now, we think that being engaged in the work for eighteen months — mining out these pillars — would indicate one of two things — either that there was a great quantity of coal left in those pillars, or they had put in an entirely inadequate force of miners. If the pillars, contained but a modicum of coal, a few men would have mined it out in a very short time; if it contained coal of any considerable quantity, then a large force applied to it would have mined it out in much less time than eighteen months. It was something that was in the power and control of the defendant company. It was their pleasure, whether theji put in a sufficient force to mine that out rapidly, and thus stop' the payment of the $1,000.00 a year, or temporize with it, as perhaps they did, and if they did that, certainly nobody could be blamed except themselves.

Now, what were the rights of the lessor in this respect? He had the right under the lease to have the lessees mine out the coal in the ordinary and usual method practiced in such business; and to compel them, and they were bound to take out all of the coal underlying the land, that was minable with economy and profit, whether it consisted of pillars 800 feet long, or coal directly from the face of the rooms following the lead of the veins, if it were usual and ordinary for persons engaged in that business to mine such pillars; and it may be said in passing that the defendant company recognized this as correct, because they were engaged, as they say, for eighteen months in mining out the pillars.

Now, with this statement of the matter, and recurring, to the objections made that the charge of the court, permitted the jury to find that the defendants -were holding the lease under its terms while mining out the pillars, and that it left the jury to say tlie defendants were holding the lease, if these pillars remained in the mines, we can tell, by an examination of this charge, whether the court gave the law correctly or not, or whether or not it did really allow the jury to do as the plaintiff in error now claims.

I will not take the charge up to read it, because it is somewhat lengthy, but I have taken off short notes of it for reference. and the parts I refer to are found on pages .127,128, 129, and 132. Now, the court instructed the jury that the ■ defendant was to pay the installment of $1,000 a year so long as it continued to hold the lease, and that if if. continued to operate under the lease in the ordinary way of mining coal at the close of each year, then they should pay that year’s installment. That if they mined out all of the minable coal in one year, excluding entry pillars, then they were to pay only for the amount mined out that year, and not the full installment of $1,000. unless the royalty would amount to that. That the jury could not find that there was minable coal still existing under the land because of pillars left in the entries that might be mined, nor could they find' from the fact that pillars were left in the entries that might be mined, that the defendant was holding the lease under its terms; and that the ordinary way of mining meant the usual and customary manner of conducting and carrying on this particular business, and that if the jury found it was usual and customary to mine and remove the pillars from the rooms in the mine, and should find defendant was thus engaged, that would be mining in the ordinary maimer, and would be a holding of the lease while so engaged.

It will be noticed that the court in the charge made a distinc- \ tion between the room pillars and the entry pillars. So far as the entry pillars were concerned, the court told the jury distinctly that because the entry pillars were left in the mine that might be mined with economy and profit, still, from that fact they could not find there was minable coal left in the mine, nor could they from that fact find that the defendant coal company was still holding the lease under the terms of it; so that, so far as allowing the jury to find that because there were pillars left in the entries, the defendant company still held under the lease, the court told the jury directly the contrary — they could not so find from the fact. The court did say to the jury that so far as the room pillars were concerned, if it was usual and customary to mine out those pillars, while so engaged they should be regarded as holding uuder the lease, or be1 responsible for. whatever installment would be due the plaintiff by reason of that fact. Now, if therefore, the jury found that it was usual and customary in that business to mine out and remove room pillars, then certainly the jury should find that while so engaged the parties were holding the mine under the lease, and it is immaterial whether we say it was or was not the duty of the court to instruct them absolutely as it did, that if that was the usual manner of mining .out by parties in that business, the defendant should be regarded as holding under the lease, or whether it should have been left to the jury as a fact to be found by them. There could be no prejudice to the plaintiff in error whether the court gave it as a rule of law or not, because, under the evidence the jury could do nothing else but so find, as it was undisputed that for eighteen months before they quit mining, and until after October, 1893, when the last installment was claimed on the part of Moherman, they were engaged in mining out the pillars in the rooms. That they were also engaged in mining out the pillars in the entries is entirely immaterial, because the court instructed the jury, in substance, that drawing entry pillars, would not be mining coal under the terms of the lease; and the evidence does not show that the entry and room pillars were drawn at diferent times. They probably pushed the business of both enterprises at the same time, as there is nothing in the evidence to indicate that they did not.

T. W. Sanderson, for planitiff.

W. S. Anderson, for defendant.

We see nothing in this record so far as the charge of the court is concerned for which this case ought to be reversed.

So far as the verdict is concerned, we are not prepared to say but that it is right, but at all events we should not be at liberty to consider that question, for the reason we do not have all of the evidence before us that was before the jury in the court below. They used a map largely in the testimony of this case, and witnesses pointed to it, pointed out places upon it, horse backs in the mine here and there, etc. It was patent and plain to the jury, but it was entirely unintelligible to us, so that in any event we could not examine the question whether the verdict was sustained by the weight of the evidence or not; but so far as it is disclosed, and treating these matters as to the map as immaterial, we do not see how the jury could have done anything else than what it did. So far as the amount of the verdict is concerned, counsel said they had not taken the trouble to compute the amount, nor have we.

The judgment of the court below will be affirmed.  