
    Coal Company v. Mining Company.
    1. In construing a written instrument, effect should he given to all of its words, if this can be done by any reasonable interpretation.
    2. A clause making a grant passes everything included within the ordinary meaning of its words, unless it clearly appears from an inspection of the entire instrument, read in the light of the relation of the parties to the subject matter of the contract when it was made, that the words were used in a more limited sense.
    Ekroe, to the District Court of Medina County.
    On the 16th day of November, A. D. 1872, two Ohio corporations, the Silver Creek Mining and Railway Company; of the first part, and the Wadsworth Coal Company, of the second part, executed a contract under seal, of which the following is a copy, to wit:
    “This agreement made and entered into at Cleveland, Ohio, this sixteenth day of November, A. D. 1872, by and between “ The Silver Creek Mining and Railway Co.” party of the first part, and “The Wadsworth Coal Co.” party of the second part, Witnesseth. That the said party of the first'part, in consideration of the rents and profits hereinafter named to be paid, and the úndertakings and agreements to be performed by the party of the second part-, hereby lease and let to the party of the second part for the term of till coal is mined, commencing at the date hereof, all the “ mineral coal in the following described land formerly known as and being lands situate in the township of Wadsworth, county of Medina and state of Ohio, bounded and located as follows:
    “ Being in lot two and tract one. Beginning at the southeast corner of Isrial Ritter’s land, both being lot two of ■ tract number one, or-Wadsworth tract, and running west 84 chains, thence south so far that a line is formed parallel' with the first mentioned line, and on the east by the township line and south by part of lot two, and west by lot eleven, the same to contain fifty acres of land.
    “And also a part of lot two in Township No. 1, Range 13, the Connecticut Western Reserve, and in the township of Wadsworth. Commencing at. the northwest corner of said lot, thence running south 89 deg. 8 min., east 32 chains and 25 links, thence south one half degree, west 5 chains and 71 and one fourth links, thence north 89 deg. and 8 min., west 33 chains and" 25 links, thence north 30 min., east 5 chains and 21 and one fourth links to the place of beginning, containing nineteen acres of land. Also a tract of land belonging to John Whitman and bounded as follows: On the north by the above described nineteen acres, east by the township line, on the south by the township line, on the west by land owned by David Long, containing one hundred and six acres more or less, together with the right to immediately enter upon said land, mine and remove and dispose of said coal for their own benefit and use.
    “ And the party of the second part hereby agree to commence without delay, and continue to open a coal mine, and erect the necessary structures and machinery on, said land to carry on the business of mining as herein contemplated and defined, to wit: “ To mine and remove at least twenty thousand tons of coal between the date of this agreement and the 81st day of December, A. D. 1874, eighteen hundred and seventy-four inclusive. To mine and remove at least twenty thousand tons of coal during the year thereafter ending the thirty-first day of December, 1875, and each and every year after the thirty-first day of December, a.d. 1875, the amount of coal to be mined and removed to be at least twenty thousand tons, until the termination of this lease or contract, and the said party of the second part agree to mine and remove the amounts as specified, and to pay to the party of the first part forty cents for each and every ton of 2,150 pounds of coal in condition as taken from mine, mined in said premises. Payments to be made at office of the Silver Oreek Mining and Railway Co., quarterly (after mining is commenced), that is, on the first day of April, July, October and January of each and every year, after the first day of January, 1873, and during the continuance of this agreement payments shall be made at the rate aforesaid, for the amounts of coal mined during the three months next preceding these dates, and any amount due and not paid at the time specified for its payment shall draw interest at the rate of ten per cent, per annum until paid; and it is further agreed that if the party of the second part shall fail to mine during any quarter year, the quarterly portion of the amount of coal stipulated herein to be mined in that year, then the party of the second part shall pay to the party of the first part the sum to which said quarterly portion would amount the same as if it had been mined, but said sum shall be considered as advance payment to apply on the first coal mined thereafter in excess of the stipulated quality [quantity] .except in case of general strike of miners in the district in which said mine is located, in which event the party of the second part shall not be held to pay said quarterly portion as above mentioned, but an allowance shall be made to cover the time of said stoppage. And the party of the first part hereby grant to the party of the second part the use and occupancy of four acres of said land in a compact form during the term of this agreement on which the party of the second part agree to put up and maintain a suitable fence, open the mine, erect machinery and construct chutes, screens, roads and drains, so as to carry on the business of mining advantageously. All of which machinery, and structures and improvements shall remain undisturbed and unimpaired until the termination of this contract.
    “ And the party of the second part agree to erect scales of approved manufacture at the mouth of the mine on which all the coal mined shall be weighed accurately, to keep just and accurate accounts and records of all coal mined, sold and shipped in approved form so as to be easily examined, and to furnish to the party of the first part or assigns statements of the same at least quarterly at the periods heretofore mentioned. And the party of the first part or assigns shall have at all reasonable hours the right to examine, survey and inspect the mines, books of accounts and records; and the party of the second part agree to open and- work the mine in a good substantial and workmanlike manner, leaving sufficient pillars of coal and timbers and props to support the roof until the coal is all exhausted. And to mine from year to year so that the thin as well as [thick] coal shall be taken out in proper proportion as the work progresses.
    “ It is further agreed that if the party of the second part fail to make any payments herein specified at the time provided and refuse or neglect to pay the sum [same] for a period of four months after the time it is due, then the party of the first part or assigns, if they so elect, may take at any time thereafter full possession of the mine, machinery, fixtures, implements and conveniences on such land and use the same as they deem proper to carry on mining and removal of coal from said land until it is exhausted. The party of the second part considering such possession and use a proper forfeiture for their failure to pay. And the party of the first part may cancel this contract on taking possession as aforesaid, reserving to themselves their right of damages.
    “It is further agreed that if before the term of this agreement is expired the coal should be exhausted from said land and none remains to be mined, then the party of the second part shall have the right to remove all machinery and fixtures from the premises provided no unnecessary,damage is done to the land, and all accounts between the parties hereto are settled and paid, and thus' terminate this contract.
    “ It is further agreed by the parties hereto that the aforesaid coal shall be mined through an opening or openings oñ the surface of said land, and that the failure of the party of the second part to make the necessary shafts, slopes or drifts and construct machinery and fixtures on the premises as herein described before the 31st day of December, A. D., 1873, shall be a forfeiture on their part to any further rights in this contract if the party of the first part so elect. And it is also agreed that for any coal that the party of thé second part shall remove from other lands through, over or above said described land, the said second party shall have all the rights now possessed by the party of the first part. ' “ The parties hereto respectively bind themselves, their heirs, administrators and assigns to the performance of this agreement.
    “ In witness whereof we have hereunto set our hands and seals the day and year above written.
    “Silver Creek Mining and Railway Co., r -, “By J.F Card, President. Lseal.J
    “The Wadsworth Coal Company,1 r , “ By John J. Wagoner, President. ISEAL,J
    “ In presence of C. L. Latimer,
    “Nichs. Ames.”
    “ The State of Ohio, Cuyahoga County, ss:
    
    . “Personally appeared before me, C. L. Latimer, notary public, within and for said county, Jonathan F. Card, president of the Silver Creek Mining and Railway Company, and as such acknowledged the signing and sealing of the foregoing instrument as the act and deed of said company, and as his act and deed as president of said Silver Creek Mining and Railway Company. ;
    
      “Witness my hand and official seal this 4th day of January, A. d., 1878.
    “C. L. Latimer,
    [seal.] “Notary Public, Cuyahoga County, Ohio.”
    At the date of said instrument the said Silver Creek Mining and Railway Company held the said Whitman tract of 106 acres under a lease containing the following stipulation (said company being the party of the second part), to wit:
    “ It is also agreed that all coal mined on said premises is to be accurately weighed and the weights to be kept in a book which shall at all reasonable times be opened for inspection of the said first party, and it is further agreed that the said party of the second part is to have the privilege of using the said railroads, underground entries, buildings and fixtures for the purpose of mining and removing coal from other lands, and after the said mine becomes exhausted or unmineable they may coi tinue the use of said railroads, underground entries, buildings and fixtures by paying the party of the first part the sum of five dollars per year for each year they may us.e them for the purpose of transporting coal.”
    Before, and on, November 16,1872, the Wadsworth Coal Company owned the coal under other lands adjoining the tracts described in the agreement of that date ; but access to said adjoining tracts of coal could be conveniently had only through the lands described in said instrument.
    ' On May 21, 1879, the Silver Creek Mining and Railway Company began suit, in Medina common pleas, claiming that the Wadsworth Coal Company had forfeited its rights by non-fulfilment of its contract duties; that it owed a large amount as rental for coal; and prayed for an account, judgment for the sum due, and possession of the mines.
    The defendant by answer and eross-petition denied the alleged forfeiture; averred that all the coal in the lands described in the instrument of November 16,1872, had been mined and removed; that defendant was entitled to possess and use the passage way through the mines, and the struc tures and appliances ■ at the entrance, tor the purpose of removing coal from defendant’s adjoining land; and prayed the court to construe the contract and quiet defendant’s ■possession.
    The issues were referred 'to a referee who found that defendant had forfeited no right; that it owed to plaintiff $7,594.52; that all the minable coal had been removed from the plaintiff’s land; that no part of the contract, or instrument, of November 16, 1872, remained in force except the obligation to pay said balance and the right of the defendant to retain possession of said passage, structures and appliances for the purpose of removing said adjoining coal. The common pleas confirmed the referee’s report, and adjudged that plaintiff recover of defendant said sum of $7,594.52, and interest thereon from May 3, 1880. The costs were divided. A motion for a new trial was overruled, and a bill of exceptions presenting all the evidence was made part of the record.
    Upon petition in error the district court reversed and set aside “ all that part of the report of the referee and judgment of the court thereon, holding and deciding that said defendant in error has the right to hold and use said leased premises for the purpose of removing coal from other land, or for any purpose, after all the coal leased was found to be exhausted.”
    By petition in error the Wadsworth Coal Company asks for a reversal of the judgment of the district court.
    
      Humphrey Stuart, for plaintiff in error.
    
      Stevenson Burke, for defendant in error.
   Granger, C. J.

What is the- true-construction, of the agreement of November 16, 1872, upon the point in dispute? It-was formally and carefully drawn. The stipulations touching the- mining of the lessor’s coal, and • the payment therefor by the lessee, demonstrate’ that the draughtsman understood precision of statement and legal •phraseology, ; Fi'om.• the beginning, down to the last two 'clauses of the instrument, all is clear, precise and technical; giving rights and imposing obligations that were “ for the .term of till Coal is mined.” What coal? In the absence of any indication of a different meaning — the coal in the leased land. 'But-.note' the omission of u“the” before “coal.” .After'very completely providing for said rights and obligations the draughtsman added two clauses.

One of. these’ gives permission to-the lessee to remove all ¡.machinery and.fixtures “provided no unnecessary damage is-done to.;t'he 'land and fall accounts between the1 parties .hereto, are.. settled and-paid, and thus terminate this contract.” ’ ' 1’

If the preceding stipulations had, shown the work of a 5“.prentice’hand ” we would .attach less' importance to the ..words.if‘before the term of this agreement is expired the -coah shall be‘exhausted from said land.” But the words of -a skilled- and :careful writer demand attention.-. He began this clause with words plainly.indicating that “the term of ..this .agreement woyld 'not necessarily expire when “fhe -eoal'shoidd; be.'eyhafisted from, said .land.” , ; .. , . ■■ ,

! 'M hislsolb'F.uitpCseihad'béeú .ip insert permissiqn.for the ¿removal' byothe.'lessde’- of its, machinery and fixtures, such a (.writfer.'’WOjuld hay,e.;penned “on -the termination of this Je'ase,” or Nwhemall-the coal .shall be .exhausted from said land then the party of the second part, &c.” ' Moreover, after .the, words “ the coal'should be exhausted from said land,” he adds, “afid none remains to'be mined.” If these last six words refer to the coal in the leased lands the writer fell into a tautplogy-mot exhibited by- him' fin the preceding parts of the papery.-:.When he wrpt,e “‘'an.d none,remains to be mined,” was he thinking of the lessee’s coal in its adjoining tracts?;- Did.-the words; “.till Coal is mined ” include í/hzícóaj?’ ' '

In the filial clause he wrote, “ and it is also agreed that for any ¡coal that the party of the second part shall remove fro.m other, lands through, over, or-above said described land, the said second party shall have all the rights now possessed by the party of the first part.”

The defendant in error claims that this clause should be construed as if the words “during the continuance of this lease” were added to it.

But, if the writer’s intent was to grant a permit for that time, would he not have used the well-known phrase “ and during the term of this agreement said second party may remove coal from other lands through, over, or above said described land.” It is shorter by almost one half than the clause placed by him in the contract.

Moreover, the form of the contract clause clearly shows that the writer knew of the lessee’s purpose to so remove coal from other lands; nay, more, it recognizes its right to do so without the lessor’s permission, and implies a purpose to grant something in addition to such right. As matter of law, without any such permit, the lessee could lawfully remove coal from its other lands during the continuance of the lease. He who rents a farm adjoining his own, may, during the lease, haul the produce of his own land across the leased land without any license from his landlord.

This clause, in its form, recognizes this rule of law; recognizes the purpose of the lessee to so remove coal; and then proceeds to grant to it for the purpose of such removal, “ all the rights now possessed by the party of the first part.”

Among those rights was the grant in the Whitman lease, covering 106 acres out of the 175 acres described in the contract. The contracting parties acted with knowledge of that lease and its stipulations.

A well established rule requires the court to give effect to every word in an instrument if it can reasonably be done. In this case the common pleas treated the agreement as containing two distinct parts: the first a sale of the coal in the 175 acres with rights and obligations ending with the exhausting of that coal and payment for it at the stipulated' price; the second an assignment to the Wadsworth Company, for the purpose of removing the coal from its adjoining lands, of all the rights then possessed by the Silver Creek Mining and Railway Company. The Whitman lease valued those rights in the 106 acres of that tract at the small sum of five dollars per year. This fairly indicates what Whitman and the Silver Creek Company considered the concession of such rights was worth to the land owner in addition to the royalty paid for the coal in the land across.which, the rights were to be used. The Whitman lease was dated September 3, 1872, (less than three months before the agreement in question). Under it the Silver Creek Company was to pay a royalty of only seventeen cents per ton of 2240 pounds, and was bound to mine only about 1200 tons annually, making a rental of $200.

On November 16th, 1872, the Wadsworth Company took this lease and 69 acres more, and agreed to pay to the. Silver Creek Company a royalty of forty cents for each ton of 2150 pounds, and to mine at least 20,000 tons annually. It also .consented to most stringent stipulations as to time and manner of payments: it agreed to make “ advance ” payments and to so limit its right to apply those payments upon coal subsequently mined, that it was quite possible a material part of the payments so advanced would be wholly lost to it.

This assent to such terms, given with a knowledge of the moderate terms of the Whitman lease, plainly indicates, as we think, a controlling inducement more important than the mere right to mine coal in the 175 acres,, with the opportunity while so mining to take coal from their adjoining lands. The quantity to be taken each year from the 175 acres left, small time or opportunity for removing other coal “ during the lease.”

The district court adopted a construction which gives no effect to the opening words of the clause next preceding the final clause; which ignores the form of the final clause; which introduces into it words not there by necessary implication, to wif, “ during the continuance of this lease; ” and does not give to the Wadsworth Company “ all the rights” then “ possessed ” by the Silver Creek Company.

It seems to us that the. construction adopted by the common pleas is the true one. It gives to each word its ordinary meaning. The final clause expressly transfers to the Wads-worth Company all the rights then possessed by the other company for the purpose of removing coal from other, lands. No words of limitation are there. No court has a right to interpolate them without strong reason, unless they belong there by necessary implication. In this paper we find no such necessity. On the contrary, a careful, inspection of the paper itself, in the light afforded by the then situation of the parties as disclosed by the record, satisfies. us that they did not intend that any such words of limitation should be inserted, or implied.

The Silver Creek Company claims that if such is the true construction of the agreement, it is entitled to some $2,000 yearly as a rent. But it seems to us plain that, this rental is based upon the obligation to mine and remove coal, in and from the 175 acres; it is a royalty for coal so. actually mined and removed from said lands; or payable because of a failure by the Wadsworth Company to fulfil its covenant to mine the stipulated quantity. So soon as the minable coal in the 175 acres was exhausted that covenant ceased to operate; its obligation was fully performed. Hence no such rental is due to the Silver Creek Company. It does not suffer. It seems to us evident that it. prudently stipulated for, and, when the $7,594.52 shall have been collected, will have received ample compensation for all the rights granted.

The judgment of the district court is. reversed, and that of the common pleas affirmed.  