APPEAL by the defendants, Milo L. Cleveland and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 23d day of December, 1908, upon the decision of the court rendered after a trial at the St. Lawrence Trial Term before the court without a jury.
Thomas Spratt, for the appellants.
George A. Adams and Frank N. Cleaveland, for the respondent.
On the 28th day of May, 1884, one Hendrick was the owner of twenty acres of land in which were supposed to be deposits of talc, soapstone, iron pyrites and other valuable minerals, and on that day he entered into what was termed an 'agreement' in writing with one Spaulding, whereby, in consideration of one dollar and the performance of the covenants expressed, he contracted and sold to Spaulding 'the exclusive right and privilege to prospect for, mine, dig and quarry for any and all kinds of minerals' (enumerating some of them), with the right to take away the same, together with the right of ingress and egress upon the land for the purpose of so prospecting and mining and carrying away the material which he might find, together with a right to build shanties or buildings upon the property necessary in prospecting, mining or reducing such materials to commercial form. Spaulding on his part agreed to pay to Hendrick twenty-five cents for every gross ton of commercial material which he might take from the land, and to commence prospecting within sixty days, and to continue and work and put upon the market all such material as he might find for which there was a paying market, and to prosecute the work in a businesslike manner and to keep a true account of such material and pay the twenty-five cents per gross ton every thirty days. It was further provided that, in the event of Spaulding failing to pay or keep his agreement, Hendrick might at his option declare the contract at an end. The final clause declared that the obligations should be binding upon the heirs and assigns of the respective parties.
Spaulding did not begin operations within the stipulated sixty days and in November, 1898, an agreement was entered into reducing
the price per ton from twenty-five cents to fifteen cents, and providing that operations should begin within three months. Operations were not begun within this time, but in March, 1900, the parties executed a further agreement whereby the default of Spaulding was forgiven and his rights under the 'lease,' as it was then called, more clearly defined. There was a recital of the making of the contract of 1884, and the following provision was made: 'Said agreements or leases were intended and shall be construed and held to grant and convey to said Spaulding, his heirs and assigns, the sole and exclusive right and privilege forever, or so long as he or they shall perform all the agreements therein contained on his or their part to be performed, to prospect for, mine, dig and quarry for any and all kinds of minerals, talc, soapstone, marble, pyrites of iron or any other valuable material, and take away all of the same which he or they may discover in or on the premises therein described and referred to,' all on condition that the covenants and agreements of Spaulding should be observed.
In October, 1900, there was a further writing entered into between the parties in which it was recited that at different times the parties had entered into divers agreements or 'mining leases' relating to the mining and raising of mineral ores and foregoing all past royalties and stipulating that Spaulding might raise and remove all ores and minerals free from any payments to the 10th day of October, 1901, thereafter to pay fifteen cents per gross ton.
All these several agreements were signed by both parties, sealed and acknowledged and recorded in the county clerk's office of the county in which the property was situated.
On the 21st of March, 1904, Spaulding entered into 'an article of agreement or lease' with one Roberts wherein it was recited that he was the owner of several mining leases made by Hendrick to himself and that Roberts was desirous of obtaining an interest in such leases and agreements, and, therefore, for a valuable consideration he (Spaulding) agreed 'to sub-lease all his interests in the above-mentioned leases' to Roberts, he to pay all of Spaulding's obligations to Hendrick and to pay to Spaulding $100 at the end of the first year in full of all royalties, and for all time thereafter fifteen cents per gross ton, not less than $250, however, for the second year, and not less than $500 for the third year and as much more as
the fifteen cents per gross ton might make it. Roberts was given the privilege to discontinue the lease at any time upon three months' notice upon reconveying the same and paying up all past dues, and in case he should not keep his covenants Spaulding had the option on thirty days' notice to cancel the lease himself. Roberts agreed to diligently prosecute the work of mining and developing the mines in a businesslike manner and to so continue until the termination of his lease, keeping proper accounts of the product marketed. The instrument was declared to be binding upon the heirs and assigns of the respective parties and was duly acknowledged and recorded.
In July following Roberts sold, assigned, released, granted and conveyed to these defendants all his right, title and interest in and to the aforesaid leases, agreements and conveyances from said Spaulding to himself. The defendants did not covenant or agree to perform or carry out any of the agreements and covenants which Roberts had made with Spaulding, but they did enter upon the premises and prospected and mined, and were in such possession at least until May, 1906.
In September, 1904, Spaulding died intestate at Worcester, Mass., and it is claimed that one Blodget was appointed administrator of his estate, but the record contains no proof of that fact. Thereafter all the heirs at law of Spaulding and said alleged administrator, although not signing as such, joined in an instrument assigning, transferring and setting over to this plaintiff 'all the leases of mining or quarrying rights' possessed by Spaulding at the time of his death, and this action was brought to recover the minimum royalties agreed to be paid by Roberts up to March 21, 1908.
The theory of the plaintiff is that Spaulding had such an interest in the land or in the minerals contained in it severed from the surface of the soil as passed to his heirs on his dying intestate, and that Spaulding leased to Roberts, and the defendants having taken an assignment of such lease from Roberts and entered into possession are ...