
    Prichard Coal Company v. Fields.
    (Decided June 15, 1926.)
    Appeal from Laurel Circuit Court.
    1. Frauds, Statute of. — Lease giving right to mine and remove coal from land must he in writing.
    2. Frauds, Statute of. — Oral coal mining lease is sufficient to protect lessee as to coal already mined, giving him right to remove such coal on payment of stipulated royalty.
    HENRY C. HAZLEWOOD and GEORGE G. BROCK for appellant.
    FINLEY HAMILTON for appellee.
   Opinion of the Court by

Judge Clay

Reversing.

The Prichard Coal Company, which owns the coal in certain land in Laurel county, brought this action against Elbert Fields to enjoin him from mining and taking its coal. Fields defended on the ground that he acted under an oral.leaise. On final hearing the petition was dismissed, and plaintiff appeals.

According to appellee, appellant leased him the coal in the spring of 1920. He was to pay appellant a royalty, of twenty-five cents a ton. No definite period of time was agreed on. It was just to get out the coal under the two acres of land. He went to work under that agreement, mined some coal and paid the royalty to appellant. In November, 1920, be was notified to pay tbe royalty to Bowman -Quinn & Company. After that be paid some royalty to that company, but then ceased to mine tbe coal and did not renew bis operations until about June, 1922. After mining some coal be was informed by Bowman Quinn & Company that they bad a lease on tbe premises. A few days before tbe injunction was served be was notified to cease operations. At tbe time tbe injunction was served be bad uncovered about five tons of coal. W. R. Groforth testified that the lease was made with him and Fields. ITe did not remember bow long they were given to get the-coal out. He went to work and worked until tbe coal got -bad and quit. He never intended to do any more work unless tbe coal brought better prices.

We held in Beckett-Iseman Oil Co. v. Backer, 165 Ky. 818, 178 S. W. 1084, that oil and gas being minerals are a part of the realty, and that a lease giving to the lessee tbe right to explore -certain lands and remove therefrom- tbe oil and gas is a contract for tbe transfer and salq of an interest in tbe lands and must be in writing, and, of course, tbe same rule applies to a lease .giving -one tbe right to mine and remove coal from tbe land of another. Huff v. McCauley, 53 Pa. State 206, 91 Am. Dec. 203. As tbe lease under which appellant claims to have been operating was not in writing, it was not enforceable. However, it was sufficient to -protect appellee to tbe extent of-the coal already mined, and to give him the right to remove such coal on tbe payment of royalty. Subject to this right the chancellor should have granted an injunction restraining appellee from thereafter mining or removing any coal from tbe premises.

Judgment reversed and cause remanded, with directions to enter judgment in conformity with this opinion.  