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lease, possession of the property was and at the expiration of the lease to pay taken by the mortgagee of the lessee, for all coal in the seam whether mined

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or not, on terminating the contract, in the absence of a stipulated safe mode for mining the coal, defendant was only liable for such coal remaining in the mine as could be mined by modes usually adopted in that locality with reasonable safety, and was not liable for coal ren

§ 16 (1) Rent or Royalties Dependent on dered unmerchantable from causes which

Existence of Mineral.

Where a mining lease gave the grantees the right to mine all iron ore under certain land designated for the period of 10 years, for which they agreed to pay the grantors a royalty of 15 cents per ton of ore mined, the grantees binding themselves to mine not less than 100 tons a month, such lease contained an implied covenant that the land contained minerals, and, no ore having been found in paying quantities, the grantees were not bound to pay royalties thereunder. Brooks v. Cook, 135 Ala. 219, 34 So. 960. In this case it is said: "For, after all, the lease was nothing more nor less than a sale by them of iron ore, which they supposed they owned, hidden, it is true, under the earth-a supposition also indulged by the lessees. But, if both were mistaken in their supposition as to the existence of the ore, then the obligation of the lessees to mine, upon a discovery of this mistake, was at an end, as was likewise their obligation to pay royalty upon the ore to be mined."

P. agreed to pay T. and others $20 per month for all minerals underlying their land, which formed part of the mine called and known as the "P. Warrior Coal Mine;" also all timber growing thereon suitable for mining purposes, and a right of way to the mine, wherever required, "only so long as said mine is worked, and to an advantage." P. worked the contiguous land, which, together with the T. tract, formed the P. Warrior coal mine. Held, that the contract imposes the obligation of the monthly payments so long as the P. Warrior mine was worked to advantage, and not merely during the time that the T. tract was so worked. Pierce v. Tidwell, 81 Ala. 299, 2 So. 15.

Where defendant leased a mine, agreeing to pay a royalty for all coal in the seam which could be reasonably mined,

could not be prevented by prudent management. Gaines v. Virginia & A. Coal Co., 27 So. 477, 124 Ala. 394.

§ 16 (2) Lien for Rent or Royalties.

Where a mining lessee covenanted to pay a royalty to complainant on all ore mined, but no lien was reserved in the lease to secure such royalty, and none was given by law, complainant was not entitled to maintain a bill in equity to declare and enforce a prior lien for royalties unpaid both by the lessee and its assignee for the benefit of creditors on the lessee's property in the hands of such assignee, but was only entitled to recover such royalties at law. ". Wills Valley Min. & Mfg. Co., 39 So. 336, 143 Ala. 623.

§ 17. Construction

Etowah Min. Co.

and Operation of

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An agreement to work a mine under the supervision of the owner's superintendent, and to furnish the men and tools therefor, and to reimburse the owner for tools which he was to furnish, the owner having the right to fix the miners' wages, control the output, and reduce or increase the number of miners according to the orders on hand, though stating it was a lease of the mine, is not an entire undertaking to mine all the coal in the mine, but a mere contract of employment, terminable at will. Lambie v. Sloss Iron & Steel Co., 24 So. 108, 118 Ala. 427.

A verbal contract conferring the right to dig and carry away ore from the mine of another operates as a verbal license, and while unrevoked will protect the person to whom it is given from trespass quare clausum fregit for digging ore and vest in him the property of the ore that

is actually dug under it. Brown, 20 Ala. 412.

Riddle v. § 19.

An oral license to dig and carry away ore from another's mine is not assignable. Riddle v. Brown, 20 Ala. 412.

One agreeing to permit another to mine ore in a specified territory, and to pay a certain sum per ton therefor, must permit the mining of ores remaining in the territory after deliveries of large quantities, which included ores taken outside the territory, amounting to more than the ore remaining in the territory. Worthington v. Given, 24 So. 739, 119 Ala. 44.

One may recover for a breach of a contract to pay for all ore coming from a specified territory free from foreign substance in a manner satisfactory to a certain company, though the company expressed dissatisfaction with the ore, where the expression was a mere pretext. Worthington v. Given, 24 So. 739, Ala. 44.

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In an action for a breach of contract to permit plaintiff to mine ore in a specified territory, and to pay for it when delivered free from foreign substances in a manner satisfactory to a furnace company, evidence of the quality of the ore is immaterial. Worthington v. Given, 24 So. 739, 119 Ala. 44.

Where the owner of a mine has a right to control the mining contractor's output, and may reduce his working force according to the orders on hand, his stopping the contractor from work entirely is not a breach unless done while he has orders on hand. Lambie v. Sloss Iron & Steel Co., 24 So. 108, 118 Ala. 427.

Revocation.

One contracting to permit another to mine all the ore within a specified territory, and to pay monthly a specified sum for each ton delivered during the previous month, the other to deliver the ore free from foreign substance, is not justified in terminating the contract by the other's offering to deliver a small quantity of the ore that was not free from foreign substance, where the offer did not evince an intention not to comply with the contract. Worthington v. Given, 24 So. 739, 119 Ala. 44.

III. OPERATION OF MINES, QUARRIES, AND WELLS. (A) STATUTORY REGULATION. § 20. Statutory Provisions.

Code 1896, § 2921, makes it the duty of a mine owner to have and maintain "at least two available openings to the surface from each seam or stratum of coal worked," whenever required by the chief mine inspector. Held, that opening, divided into two parts by a thin wooden partition, is not a compliance with this law. Howells Min. Co. v. Gray, 42 So. 448, 148 Ala. 535.

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Rights of Partners Inter Se.-A written agreement was entered into between complainants and one A. for the entry and purchase, in partnership, of lands to be used for mining purposes. Complainants agreed to advance the purchase money, and A. was to enter the lands which he deemed most suitable for mining, and to superintend the working of the mines. The money advanced by complainants was "to be refunded, with interest, out of the first funds realized by the company." A. entered several tracts of land in his own name, with money advanced by complainants, and afterwards transferred them to complainants, to whom patents were subsequently issued Some of the lands

In case of a lease of lands, with the right of quarrying stone, the destruction of a limekiln on the lands does not relieve from liability to pay rent, although by the government. the kiln was the principal inducement and were sold under execution against A., the principal source of profits. Warren after the entry in his name, but before v. Wagner, 75 Ala. 188. the issue of complainants' patent, and

10 Ala Dig-4

Whether such employee was guilty of contributory negligence in selecting an unsafe position on the car held for the jury. Republic Iron & Steel Co. v. Fuller, 6 Ala. App. 448, 60 So. 475.

were purchased at the sale by the judg- of the mine employees of one contractment creditors, against whom complain- ing to operate the mine was the proxiants afterwards filed their bill, praying mate cause of an injury to an employee that the lands might be sold, that the held for the jury. Republic Iron & Steel purchase money advanced by them, and Co. v. Fuller, 6 Ala. App. 448, 60 So. 475. expenses incurred in payment of taxes, etc., might be refunded to them, and that the residue of the proceeds might be divided according to the terms of the agreement. Held, that if complainants advanced the purchase money, and A. acted in the purIn an action for injuries to a licensee chase, not for himself individually, but as in defendant's coal mine from the fall of the partner or agent of the complainants, a rock from the roof, a plea of assumpthe complainants were entitled to equi- tion of risk that plaintiff knew of the detable relief against A. or a purchaser fect and the danger therefrom, and reclaiming under him, who could only suc-mained in the mine, is demurrable, as ceed to his rights. Pool v. Cummings, plaintiff may have acquired the knowl20 Ala. 563. edge such a short time before the injury

(C) RIGHTS AND LIABILITIES IN- that he had not time to save himself. CIDENT TO WORKING.

§ 23. Personal Injuries.

In an action for injury to a coal mining contractor caused by rock falling from an entry roof, evidence held to show that defendant supplied its mines with sufficient props as required by law. Bowen v. Pennsylvania Coal Co., 179 Ala. 410, 60 So. 835.

Where plaintiff's intestate was injured while in defendant's mine as servant of an independent contractor through the negligence of defendant's servants in operating a tram train in the mine, and died from injuries so received, defendant was liable for his death. Lookout Mountain Iron Co. v. Lea, 39 So. 1017, 144 Ala. 169. A complaint which alleges that plaintiff was an employee of a third person who had contracted with defendant to operate a mine, and that plaintiff was injured while coming from his place of work, on a car negligently operated by defendant, and that plaintiff was on the car at defendant's invitation, states cause of action. Republic Iron & Steel Co. v. Fuller, 6 Ala. App. 448, 60 So. 475. An employee of one who had contracted to operate a mine held to assume the risk of injury caused by a low place in the roof of the slope, but not the risk arising from operating a car carrying out employees at an excessive speed. Republic Iron & Steel Co. v. Fuller, 6 Ala. App. 448, 60 So. 475.

a

Whether the excessive speed of a car operated by any mine owner to take out

Tennessee Coal, Iron & R. Co. v. Burgess, 47 So. 1029, 158 Ala. 519.

In an action for injuries from the fall of a rock from the roof of defendants's coal mine, a plea that the part of the mine where plaintiff was injured was left to a third person, that plaintiff was an employee of such third person, and the defect complained of by plaintiff was caused by the operation of that part of the mine by such third person after plaintiff was invited to enter the mine, and that plaintiff was injured in the part of the mine operated by said third person, is demurrable, as it does not aver that the defect was caused by negligence of the third person, nor that defendant had parted with the control of that part of the mine, nor that such person was not operating it for the benefit of defendant, and all the matters alleged in the plea could have been shown under the general issue, also pleaded. Tennessee Coal, Iron & R. Co. v. Burgess, 47 So. 1029, 158 Ala. 519.

Where a firm is working a portion of a mine under a contract with the owner whereby the firm mines the ore at a stated price for the owner, and the owner does not lose control of the mine, and still is bound to inspect and keep the mine safe, an employee of the firm is not a trespasser, nor a mere licensee, but enters by invitation of the owner, and as to him the owner must exercise ordinary care to have the mine reasonably safe. Tennessee Coal, Iron & R. Co. v. Burgess, 47 So. 1029, 158 Ala. 519.

The extent of the mineowner's responsi- Sloss-Sheffield Steel & Iron Co. v. Sampbility as to inspecting the mine for the son, 48 So. 493, 158 Ala. 590. benefit of licensees depends upon the nature of the premises and the character of the work, and therefore the frequency of

inspection is for the jury. Tennessee Coal, Iron & R. Co. v. Burgess, 47 So. 1029, 158

Ala. 519.

Where plaintiff's intestate was injured by the negligence of defendant's serv ants while he was employed in defendant's mine as the servant of defendant's independent contractor, intestate was not a mere licensee in the mine, but was in the exercise of a lawful right to be in the mine at the time of his injury. Lookout Mountain Iron Co. v. Lea, 39 So. 1017, 144 Ala. 169.

In an action to recover damages for personal injuries alleged to have been caused by reason of the negligence of the defendant, which was a mining corporation, where the evidence shows that the plaintiff, at the time of the injury, was at work in the mines of the defendant, by the latter's invitation and consent, but not as a servant or employee, and that with knowledge of the dangerous condition of the mine at the place where the injury occurred, by reason of props not being put under the roof of the slope to prevent the falling of rock, and that the plaintiff, who was an experienced miner, continued his work, and while so engaged sustained the injuries complained of by reason of rocks falling from the roof, which had not been properly propped up, the plaintiff is not entitled to a recovery of damages, he having assumed the risks incident to his continuing his work with the knowledge of the dangerous condition of the surroundings. Sloss Iron & Steel Co. v. Knowles, 30 So. 584, 129 Ala. 410.

§ 24. Injuries to Real Property.

See post, "In General," § 25; "Surface Soil," § 26; "Tailings and Debris," § 27; "Actions," § 28.

§ 25. In General.

§ 26.

Surface Soil.

Right to mine is servient to right of in its natural state by adequate supports, the owner to have it perpetually sustained and damages for failure to provide them are recoverable, without reference to negligence of the owner of the minerals in working the mine. West Pratt Coal Co. v. Dorman, 49 So. 849, 161 Ala. 389. Tailings and Debris.

§ 27.

Where a bill in equity alleged that defendant had the right to mine coal and other minerals under complainant's land; that, having almost exhausted such subjacent minerals, it extended the opening of its mines into adjacent, but unconnected, lands, and brought the coal therein mined to the surface of complainant's land, to be there loaded and transported; that it deposited

on his land noxious refuse and foul water; and that his land was valuable for agricultural and grazing purposes-it entitled complainant to an injunction. Hooper v. Dora Coal Min. Co., 95 Ala. 235, 10 So. 652. § 28.

Actions.

The statute of limitations will not begin to run, in an action for injuries to the soil by mining operations conducted beneath it, causing a failure of support, until some actual damage has been done to the upper soil.

West Pratt Coal Co. v.

Dorman, 161 Ala. 389, 49 So. 849.

A complaint against a mineowner for injury to land due to mining operations beneath it is demurrable where it fails to allege the time when the injury occurred. Sloss-Sheffield Steel & Iron Co. v. Sampson, 48 So. 493, 158 Ala. 590.

A complaint against a mineowner for injuries to real property due to mining operations beneath it is demurrable where it fails to state facts showing whether the mineowner was a trespasser or acted under any right in making the excavation. Sloss-Sheffield Steel & Iron Co. v. Sampson, 48 So. 493, 158 Ala. 590.

The owner of the mineral below the Evidence that cracks and fissures in surface must so mine it as not to injure plaintiff's land, occurring when the water the surface, in the absence of any stipula- in his well disappeared, were caused by tion to the contrary, but this applies defendant's coal mines underneath plainmerely to the surface, not to wells and tiff's land being insufficiently timbered, springs fed by subterranean streams. shows that the injury to the well was

caused by defendant's negligence in timbering. Sloss-Sheffield Steel & Iron Co. v. House, 47 So. 572, 157 Ala. 663.

land, as to who owned the land surrounding plaintiff's, exclusion of a deed, offered solely to show defendant's ownership thereof, was not error. Sloss-Sheffield Steel & Iron Co. v. House, 47 So.

It being immaterial, in an action for injury to a well by negligent operation of defendant's coal mines under plaintiff's 572, 157 Ala. 663.

Mingling Funds.

See the titles BANKRUPTCY; BANKS AND BANKING; TRUSTS.

Mingling Goods.

See the titles CHATTEL MORTGAGES; CONFUSION OF GOODS; TRUSTS.

Mining.

See the title MINES AND MINERALS.

Mining Companies and Partnerships.

See the titles CORPORATIONS; MINES AND MINERALS; PARTNERSHIP.

Ministerial Acts.

As to ministerial acts and powers of particular officers and in particular cases, see the specific titles, such as APPEAL AND ERROR; CLERKS OF COURTS; CONSTITUTIONAL LAW; COUNTIES; JUDGES; MANDAMUS; PROHIBITION,

etc.

Ministers.

See the titles MARRIAGE; RELIGIOUS SOCIETIES.

Minority Stockholders.

See the title CORPORATIONS.

Minors.

See the titles INFANTS; PARENT AND CHILD.

Minutes.

See the titles APPEAL AND ERROR; CERTIORARI; COURTS; EVIDENCE; NEW TRIAL; and other specific titles.

Misadventure.

See the title HOMICIDE.

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