
    Cook v. Andrews and Hitchcock.
    O. agreed to sell and lease to A. & H. all the coal underlying a certain tract of land, and granted to them the possession of the premises, and the exclusive right to test said land for coal, and to open, mine, and remove the same, if discovered in sufficient quantity and quality, the coal mined to bo paid for quarterly per ton. They were to test the land, by drilling or otherwise, within a time stated. Upon failure to commence mining within a period stipulated, they were to pay an agreed sum annually, which was to be treated as an advance on coal thereafter mined. In an action by 0. to recover from A. & H, the annual sums agreed to be paid upon failure to mine within the stipulated time:
    
      Held, 1. That if, in such an action, it appears that minable coal did not exist on said land, there can be no recovery.
    '2. That, in order to defeat a recovery in such an action, the burden is upon A. & I-L, to allege and prove the non-existence of minable coal on said land.
    Error to tlie District Court of Mahoning County.
    The common pleas rendered judgment for the plaintiff below, who is plaintiff here; the district court reversed that judgment, and this court is now asked to reverse the district court.
    The action was brought to recover the annual sum of $150 per year, for a series of years, by reason of failure to commence mining coal under a contract, of which the following is a •copy.
    “Coal Contract.
    “Deacon Cook to Andrews & Hitchcock.
    “ This article of agreement, made and entered into this 12th ■day of January, a. d. 1864, by and between Deacon Cook, of Green Township, Mahoning county, Ohio, party of the first part, and Chauncey H. Andrews and W. J. Hitchcock, of Youngstown, Mahoning county, Ohio,
    “Witnesseth:
    “That the said party of the first part agrees to sell and lease all the mineral stone coal that is or may underlie the following described tract Or lot of land, situated in the Tow.n-•ship of Green, Mahoning county, Ohio, and is bounded as follows: On the north by land of Andrew Cochel, east by land •of F. M. Frederick, on the south by the highway, on the west by land of M. Pettit and Pearson D. Cook, and containing in the whole about one hundred and sixty acres of land. It is .agreed by the parties, that first party may have all of the coal he may want for his own domestic purposes, at the bank mined from his own land; free of charge, and the further sum of fifty tons per annum, by his paying the first cost of the same at the bank should he want it. And the second party agrees to pay the United States revenue tax on said coal, and also grants the exclusive right to test, open mines and remove said coal, and further, grants the right to construct railroads, underground entries, and all necessary buildings and fixtures to facilitate the mining and removing of said coal. No coal to-be mined under the house or barn, or an area of five acres thereabouts.
    “ Second party have the right to abandon said premises at any time, and remove all houses and fixtures.
    “And-it is agreed by the party of the second part, that they will, within one year after the railroad is in running order from Niles to ’Wasliingtonville, test said land, by drilling or otherwise, and, if in case there should be discovered’ a minable vein or basin of stone coal of sufficient quantity and quality to justify the opening and mining of said coal, in the opinion of the said second party, then they agree to pay the following rate per ton for all coal mined on said premises, to wit: Pay fifteen cents for each ton of twenty-two hundred and forty pounds of merchantable coal, the payments to be made and continued in the following manner, to wit: Pay in hand one dollar, in an internal revenue deed stamp; the signing and sealing of this contract is an acknowledged receipt thereof.
    “ Should second party fail to commence mining within one year after the construction of said railroad, then they agree to pay first party one hundred and fifty dollars per annum thereafter, but such payments, when made, shall be treated as advance payments on coal to be subsequently mined, and this lease shall terminate in twenty years after the construction of said railroad. It is also agreed that' all coal mined on said premises is to be accurately weighed, and the weight .to be kept in a book which shall, at all reasonable times, be open for the inspection of the said first party. It is further agreed that the said party of the second part is to have the privilege of using the said railroad, underground entries, buildings and fixtures for the purpose of mining and removing coal from other lands, and after the said mines become exhausted or unminable, they may continue the use of said railroad, underground entries, buildings and fixtures, by paying the party of the first part the sum of twenty-five dollars for each year they may use them for the purpose of transporting coal. All moneys due under the contract to be paid or made in bankable funds of the State of Ohio, and the payments for coal so ■jnined to be made quarterly. And we, the parties to the signing and sealing of this contract, bind oursel ves, our heirs, our assigns and legal representatives, to strictly adhere to the several covenants and agreements of this lease, as witness our hands and seals the day and year above written.
    “ Deacon Cook.
    
      “ 0. IT. Andrews.
    “ W. J. Hitchcock.”
    The amended petition (filed in pursuance of an order consolidating several causes of action to recover for annual rent for successive years), after specially alleging the obligations incurred by defendants, avers that said railroad was completed August 1, 1869 ; that defendants have entered into possession of said premises under this contract, retained and still hold, and refuse to surrender the same to plaintiff; also that they have failed and refused to test said land for coal by drilling or otherwise, and have failed to commence mining coal on said lands within the time named in said contract.
    The answer puts in issue the time when the railroad was completed, denies that 'defendants failed to test for coal, or that they are liable, unless there was coal in this land. They aver they did make a search for coal, and found none, and that there was in fact none on the land, suitable for mining. Wherefore it is claimed there is nothing due on said lease.
    They also set up a surrender of the lease by mutual agreement.
    The reply denies the search for coal, denies that coal did not exist on the land, and denies the surrender of the lease.
    Upon the issues thus made, the case was tried to a jury, resulting in a verdict and judgment for the plaintiff for part of the amount claimed. A motion for a new trial was made and overruled, a bill of exceptions was taken, but it was not made part of the record, by journal entry.
    
      The district court reversed the court of common pleas, and remanded the cause. And this court is asked to reverse the judgment of the district court.
    
      A. IF. Jones, of Jones & Murray, for plaintiff in error, relied on Powell v. Burroughs, 54 Pa. St. 329 ; Bainbridge on Mines, 212, and cases there cited.
    
      Thomas W. Sanderson, for defendants in error.
   Johnson, J.

The bill of exceptions, which embodies the evidence and charge of the court, with the refusal to charge as requested, and the exceptions thereto, is not properly a part of the record within the rule in Hill v. Bassett, 27 Ohio St. 597; and Burk v. P. C. & St. L. R. R., 28 Ohio St. 643.

As in the case of Smith v. Board of Education, 27 Ohio St. 44, the bill of exceptions, not having been made part of the record, must be disregarded, upon error to this court.

The only question that is presented by this record is, as to the sufficiency of the petition to support a cause of action.

In' the absence of a bill of exceptions, we must presume that all the allegations of the petition were supported by proof of' the facts alleged. If those facts do not warrant a recovery, the judgment must be reversed.

There is no averment in the petition that there was a min-able vein of coal on this land. If this averment is necessary to a statement of a cause of action under this contract, then the defect is not cured by verdict. C. & P. R. R. Co. v. Stackhouse, 10 Ohio St. 567.

"Was the plaintiff required to aver and prove that minable coal existed on this land \

If so, the judgment must be reversed.

It is true there was no demurrer to this petition, for want of such an averment, but if it is an essential averment, there can be no recovery without it, as no cause of action was stated. It does not belong to that class of cases where there is a defective statement of the facts constituting a cause of action, which may be cured by verdict, but to that class where there is a failure to state a fact essential to a cause of ■action.

If there was no minable coal on this land, there could be no recovery for the annual rent, and of course, none for coal mined. The contract, in that event, would be of no value to either party.

It is manifest from a cursory reading of this instrument, that whether coal existed on this land, was unknown to the parties.

If it did, in fact, exist, its discovery would enhance the value of plaintiff’s land. The expense of making the necessary test, would doubtless be considerable. It was an inducement to a sale of the coal on the terms specified, that this test should be made at the expense of the lessees.

Hence, the lessor granted to the lessees the exclusive right to make this test, as well as to mine the coal, if discovered, and bound them to make it within a given time free of cost to him.

He reserved no right to make the test, even if willing to incur the expense.

Unless the lease was abandoned, or in some other way terminated, the exclusive right to the possession of the premises, for the purpose of searching for coal as well as for mining purposes, was vested in the lessees, and it was within their power to prevent any such test by the lessor as would be necessary for him to make, in order to enable him to aver and prove the existence of minable coal, if this burden is upon him.

In short, the lessees could retain this valuable privilege for twenty years, and obstruct the lessor from making the search for coal, without any payment, unless, at the termination of the lessees’ exclusive right to make the test, the lessor should at his own expense, make the necessary search, to enable him to aver and prove the existence of minable coal.

It is said the failure to make the test within the time, subjected the lessees to an action for damages for breach of this stipulation. Admit this, but if the burden of proving that there is minable coal on the land is essential to a recovery in the case at bar, it is equally so in such an action, and hence the plaintiff would be required to do that which the lessees-have reserved the exclusive right to do, i. e., test the land. Such a construction of this lease would be grossly inequitable, and would practically defeat any action, except to recover for' coal actually mined, or for rent per annum where the lessees had made the test and found coal, but failed thereafter to minetbe same. _ .

Again, it is expressly provided that should the lessees fail to-commence mining within one year from the construction of tiie railroad, then they agree to pay $150 per annum thereafter, but such payments when made shall be treated as advance payments on coal to be subsequently mined.

This clause, in connection with the one granting the exclusive right to test for coal and to mine the same, if found, casts upon the lessees the burden, where no test has been made, of showing, in order to escape payment of this annual sum, that there was, in fact, no coal on the land.

The lessees reserved the right to abandon the premises at any time. From the judgment in lessor’s favor upon the issues, it appears they did not’surrender or abandon, but retained possession. They did nothing to develop the coal, if any was there. As they had the exclusive right to make the test, no one else could. They alone possessed the power ’to ascertain by a satisfactory method this important fact. It seems to us,, therefore, that while the ' exclusive right to test this land is retained by the lessees, the burden is upon them, in order to-defeat a recovery, to aver and prove the non-existence of coal in minable quantity and quality.

Much stress is laid upon the clause which provides that these annual payments “shall be treated as advance payments on coal to be subsequently mined,” and it is insisted that they are to be treated as advance payments on coal, and hence, if there is no coal, there can be no recovery.

We have already stated, that if, in fact, there was no minable coal, there could 'be no recovery, and this is all that this argument proves.

The fact that if coal is thereafter mined, these annual payments shall be treated as advances upon coal thereafter mined, ■does not settle the question of pleading now before lis, as to whose duty it is to aver and prove the existence or nonexistence of coal.

Again, suppose the fact was established by the tests made by the lessees, that coal did exist in minable quantities, but the lessees refused to mine the same, the annual rent would nevertheless be payable, and could not be recovered back as .advance payments on coal not mined. In such a case, it would be at the option of the lessees to lose these payments made, by not mining thereafter, or by mining to have credit on the coal thereafter mined.

This contract is anomalous, and evinces great skill in guarding the interests of the lessees, but we think there is a clear ■duty imposed on them, when called on for payment of the annual rent stipulated to be paid on failure to mine coal; to ■show, either by an actual test, or by other competent evidence, that in fact there was no coal on the premises, in order to defeat a recovery.

This conclusion is in accordance with the familiar principle, that when, by law. or contract, a duty is imposed upon a party, the burden of relieving himself of that duty rests upon him.

Judgment of the district court reversed and that of common pleas affirmed.

Boynton, J., dissented from the judgment.  