Tichenor v. McHenry Coal Co.

Court of Appeals of Kentucky

Tichenor v. McHenry Coal Co.

215 S.W. 799, 185 Ky. 727, 1919 Ky. LEXIS 365

DecidedNovember 18, 1919

StatusPublished

This text of 215 S.W. 799 (Tichenor v. McHenry Coal Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tichenor v. McHenry Coal Co., 215 S.W. 799, 185 Ky. 727, 1919 Ky. LEXIS 365 (Ky. Ct. App. 1919).

Pincite

Opinion

Opinion of the Court by

Judge Settle

Affirming.

This action was brought by appellants in the Ohio circuit court, seeking to recover of appellee damages alleged to have resulted to certain leased premises while in its possession; also certain royalties, at the rate of $30.00 per month, claimed’ by appellants for coal that was or might have been mined by appellee on the sam0 premises. The answer of appellee put in issue all the allegations of the petition and the trial resulted in a judgment dismissing the petition, from which judgment this appeal is prosecuted.

The demands of appellants arose out of the alleged abandonment by appellee of a lease of certain coal lands made it by appellants, appellee claiming that such abandonment resulted because the supply of coal under the land became exhausted and made the further mining of same unprofitable and impossible, and gave it .the right, reserved therein, to’ terminate the lease. The showing made by the answer and proof as to the matter of the royalties claimed, seems to fairly sustain the defense! that nothing was due appellants on that score; in other words, that the royalties admittedly received by appellants altogether, paid what was due them under the lease and all they would have been entitled to receive, if the mining operations on the land had continued for the full term of the lease, We think the claim of appellants to the royalty was properly refused by the court.

• The alleged injuries to the leased premises for which appellants ■ claimed damages were not sufficiently shown by the evidence. It may-well be questioned whether the averments of the petition show that the injuries complained of, which seem to have resulted mainly from the [729]*729dumping of waste from the mine on the land, were not necessarily incidental to the proper conduct of the mining operations and such as the parties, in entering into the lease, must have contemplated would necessarily result to the land. At any rate, the weight of the evidence seems to be to the effect that this was the case.

It is true appellee did not notify appellants of its purpose to abandon the lease after nearly completing the term, but as the latter received all the royalty they would have been entitled to had the lease not been abandoned, and the land escaped any injury that might have resulted to it by further operation of the mine, we quite agree with the circuit court that they were not damaged by the failure of appellee to give them notice of its purpose to abandon the lease.

As we find no cause for disagreeing with the conclusions reached by the circuit court, the judgment must be and is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion of the Court by

Judge Settle

Affirming.

This action was brought by appellants in the Ohio circuit court, seeking to recover of appellee damages alleged to have resulted to certain leased premises while in its possession; also certain royalties, at the rate of $30.00 per month, claimed’ by appellants for coal that was or might have been mined by appellee on the sam0 premises. The answer of appellee put in issue all the allegations of the petition and the trial resulted in a judgment dismissing the petition, from which judgment this appeal is prosecuted.

The demands of appellants arose out of the alleged abandonment by appellee of a lease of certain coal lands made it by appellants, appellee claiming that such abandonment resulted because the supply of coal under the land became exhausted and made the further mining of same unprofitable and impossible, and gave it .the right, reserved therein, to’ terminate the lease. The showing made by the answer and proof as to the matter of the royalties claimed, seems to fairly sustain the defense! that nothing was due appellants on that score; in other words, that the royalties admittedly received by appellants altogether, paid what was due them under the lease and all they would have been entitled to receive, if the mining operations on the land had continued for the full term of the lease, We think the claim of appellants to the royalty was properly refused by the court.

• The alleged injuries to the leased premises for which appellants ■ claimed damages were not sufficiently shown by the evidence. It may-well be questioned whether the averments of the petition show that the injuries complained of, which seem to have resulted mainly from the [729]*729dumping of waste from the mine on the land, were not necessarily incidental to the proper conduct of the mining operations and such as the parties, in entering into the lease, must have contemplated would necessarily result to the land. At any rate, the weight of the evidence seems to be to the effect that this was the case.

It is true appellee did not notify appellants of its purpose to abandon the lease after nearly completing the term, but as the latter received all the royalty they would have been entitled to had the lease not been abandoned, and the land escaped any injury that might have resulted to it by further operation of the mine, we quite agree with the circuit court that they were not damaged by the failure of appellee to give them notice of its purpose to abandon the lease.

As we find no cause for disagreeing with the conclusions reached by the circuit court, the judgment must be and is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

215 S.W. 799, 185 Ky. 727, 1919 Ky. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tichenor-v-mchenry-coal-co-kyctapp-1919.