
    Wonsetler et al. v. Andrews et al.
    
      Contract — Interpretation of mining contract — Agreement granting right to explore coal land and to mine — Money paid as annual rental prior to mining operations — Will not be credited on amount to be paid for coal removed.
    
    In an action to recover the sum agreed to be paid for the right to enter upon the plaintiff's land to explore for coal, and to mine and remove the same at an agreed price per ton, money paid by the defendant as annual rent for coal prior to the commencement of mining operations, and intended by the parties as compensation for the postponement of such operations, will not be credited upon the agreed price of the coal when removed, though the language of the instrument upon which the action is founded be appropriate to pass a present title to the coal.
    (Decided June 21, 1898.)
    Error to the Circuit Court of Mahoning county.
    Wonsetler and others brought an action against Andrews and others in the court of common pleas to recover upon numerous causes of action, founded on the following instrument, the plaintiffs being lessors and the defendants the successors of the lessee:
    “That the said party of the first part hath this day leased and let, and do hereby convey unto said second party, for the consideration hereinafter mentioned, all their right and title to any coal which may be found upon or within the following described lands, to-wit: * * *
    Together with the right and privilege to enter thereon and drill and explore for coal, and if found, to dig, mine and remove the same; and in case it shall be absolutely necessary to use any portion of the surface of said land to mine said coal, said Andrews may do so by paying at the rate of one hundred ($100) dollars per acre for the same, which shall in no case exceed two acres, except by consent of the party of the first part; and there shall in no ease be miners’ houses erected thereon. Said Andrews may use any entry or improvements which he may make, over or through which to transport coal mined from other lands, and in the prosecution of search for coal, as well as the mining of the same, as little damage shall be done to the soil or surface of said land as the nature of said business will permit.
    For and in consideration of the foregoing covenants and agreements by and on the part of the said first party, said second party hereby agrees and binds himself, his heirs and assigns, to pay or cause to be paid unto said first party, their heirs and assigns the sum of fifteen (15) cents per ton (of twenty-two hundred and forty pounds) for each and every ton of coal mined from said land, said coal to be weighed upon correct scales at the bank, and a correct account of the same kept in books, and said scales and books shall at all reasonable hours be open to the inspection of said first party, their heirs or assigns. And said Andrews further agrees, that he will proceed without delay to make search for said coal, and if found in sufficient quantities to justify mining, that he will prepare to mine the same at the earliest time practicable, and continue to prosecute the mining thereof with all due diligence. Said Andrews also agrees that after he shall have reached said coal by entry or otherwise so as to be able to mine the same, that he will proceed to mine coal to such an extent that the rent due said first party at the aforesaid price per ton, shall amount to at least one thousand dollars per annum, or pay for the same as though mined, otherwise this article to become null and void. And said Andrews further agrees that if, after one year from the date hereof he shall not have been able to reach said coal, (having used all due diligence and exertion) he will, if this article is retained, pay to the said first party as rent for coal at the rate of three hundred dollars per annum until said coal is reached so as to be mined, when, and from that time forward he shall be bound as above stated.
    The instrument was executed December 9, 1861, but actual mining of the coal under its provisions began in 1887 and was concluded in 1892. From the execution of the lease until mining operations were begun, the defendants paid the plaintiff the sum of $300 per annum, but after mining operations commenced deducted from the coal mined, computed at fifteen cents per ton, the sum of the annual payments of $300 per annum, so made previous to the mining' operations, claiming that such previous payments were, according to the terms of the lease, payments in advance upon the coal which might be mined, at the rate of fifteen cents per ton.
    Whether this is the correct construction of the lease is the only subject of contention between the parties. These facts having been disclosed upon the trial, the defendants requested the court to instruct the jury' that the sum of the annual payments made before mining operations were begun were to be regarded as payments in advance upon the coal mined during such operation, at fifteen cents per ton. The court refused to give the instructions so requested, and in lieu thereof, charged as follows:
    “The defendants claim and insist that this $300 payment to be made annually was to be applied upon coal thereafter mined under the lease.
    “The plaintiffs admit the receipt of the payments of $300 from time to time as alleged by the defendants, but say that by the terms of this lease these payments were not to be so applied, and that there is due them from the defendants the amount claimed in their petition and the supplement thereto.
    “Various pleadings have been filed by the parties in this proceeding involving numerous other questions to which it is not necessary to call your attention at this time, but the statement here made embraces substantially the controversy between the parties, and from this statement you will observe that the real controversy in this case arises in reference to the payment and application of the $300 yearly as provided for in the lease. * *
    “It is incumbent upon the court to place a construction upon this lease, and upon that particular part of the same out of which this controversy arises, and upon this question I say to you as matter of law that the true import and meaning of the language used by the parties in the lease is, and that the intention of the parties therein expressed was, that the three hundred dollars to be paid yearly, provided for in the lease, and by the terms thereof, to which your attention has been called, when the same was paid, prior to mining of coal would not be applied to the payment of the 15 cents per ton of 2240 pounds of coal when the same was mined from the land.”
    To the refusal to instruct as requested, and to the instruction given, counsel for the defendants excepted. There being a. verdict and judgment for the plaintiffs, a petition in error was filed in the circuit court where the judgment of the common pleas was reversed for error in the instructions.
    
      B. B. Murray and L. W. King, for plaintiffs in error.
    
      Thomas W. Sanderson, for defendants in error.
   Shauck, J.

The different views taken of the meaning of this instrument by counsel and by the courts below find ample explanation in the vagueness of its stipulations. That its terms are effective to convey a present interest in the coal beneath the soil, as maintained by counsel for the defendants, may be admitted; but that proposition does not seem to aid in the present inquiry, since the parties here are not contending concerning the ownership of the soil or of the coal beneath it. When the controversy arose the defendants had become the unquestionable owners of the coal. The controversy concerns the amount they were to pay for the rights and privileges conferred upon them by the instrument, whether the title to the coal remained in the plaintiffs until its actual separation from the soil, or passed upon the execution of the instrument.

An analysis of the instrument shows that the parties first designated the rights of the defendants to be to enter upon the land described, to drill and explore for coal, and if found, to mine and remove all that might be found upon or within it. The stipulation immediately following shows that the value of the coal in place was agreed to be fifteen cents per ton, and this included compensation for the right to enter upon the land and explore for coal and to occupy such portion of the surface, not exceeding two acres, as might be absolutely necessary for mining operations. In connection with this, and contemplating the diligence with which coal should be mined “after it should be reached” the defendants bound themselves to mine to such an extent that the plaintiff should receive, at the designated “price per ton,” at least one thousand dollars per annum. The remaining stipulation of a material character does not concern the price of the coal. In making it the parties seem to have contemplated only the delay which might intervene prior to the commencement of the actual mining of coal, and with respect to that delay the defendants became bound to pay the sum of $300 per annum “as rent for coal.”

Certainly we are concerned only with the intention of the parties, and conclusive effect should not be given to the different terms “price” and “rent” if they appeared to have been used as synonj'rns. That, however, does not appear. That they were used discriminatingly to indicate the different purposes for which the contemplated payments should be made, is to be inferred from the concluding portion of the stipulation lastly quoted: “When and from that time (that is, from the time the coal should be reached so as to be mined) he shall be bound as above stated.” This stipulation, and the different terms used to designate the purposes contemplated in the different payments to be made, indicate that the price of $300 per annum was to be paid so long as the defendants might retain the contract for the right to postpone mining operations; and it seems to be entirely independent of the price to be paid for the coal after mining operations should be actually undertaken.

It is said by counsel for the defendants that nearly all the instruments executed for the purposes which these parties had in view contain the express stipulation that all sums paid in advance of -mining operations shall be credited upon the agreed price of the coal when mined. The omission of such stipulation in the instrument under consideration would indicate that a different result was intended by the parties in this case. A stipulation of so material a character should not be supplied by construction. The interpretation of the contract which the trial judge gave to the jury is in accord with this view.

Judgment of the circuit cou/rt reversed, that of the common pleas affi/rmed.  