Crouch v. Puryear

It is not waste in a tenant in dotver of Coal lands, to take Coal to any extent, from a mine already opened, or to sink new shafts into the same veins of Coal. The tenant may penetrate through a seam already opened, and dig into a new seam that lies under the first.

John G. Crouch filed a hill of injunction in the Richmond chancery court, against Puryear and his wife, McRae and Dorrington, praying that they may be in-joined from working any new coal-pit opened since the death of John Ellis, and from removing the coal that has been raised from the said new pit. The case stated by the bill is this : John Ellis died intestate, leaving a widow and three children. At the time of his death, he was seised of about 234 acres of land in Henrico county. Upon the assignment of the widow’s dower, the portion of land which was allotted to her, contained a mine of coal, which had been worked to a small extent, in the life-time of her husband. The widow afterwards intermarried with Puryear the defemlant. Puryear, or some person claiming under liim, caused another pit to be opened on the dower land, and proceeded to raise coal therefrom; but a suit being threatened, he desisted. The plaintiff, Crouch, afterwards purchased the rights of the children j and thus became entitled to the whole of the said tract, subject to the dower aforesaid. McRae and Dorrington, having purchased a lease of the said dower land, are preparing to resume the working of the said new pits, and to open one or more other pits or other seam or scams of coal, and to work them on a very large scale. The plaintiff, therefore, prays an injunction to .stop the defendants in their proceedings aforesaid ; more especially, as he does not consider them able to make compensation, if the mischief shall be once perpetrated. The chancellor awarded the injunction.* McRae and Dorrington filed their joint answer, admitting the lease to them, and their intention to go on and take coal from the mine opened by the said John Ellis, and for that purpose they mean to sink shafts and do such other things as are required for the full enjoyment of their rights under the lease, without committing waste; that they, as representing the rights of the widow, are authorised to take coal from the said mine, without stint; and that it is not waste to sink shafts or to pursue the coal belonging to the said mine, in every direction, and to every extent they may think proper to obtain the coal. They admit, that there was another shaft sunk at the distance of a very few yards from the pit opened by the said John Ellis, before the lease to them ; but by whom it was done, they know not. The defendants are working the said last-mentioned shaft, which they conceive they have a right to do; not only because they believe that all the coal upon the said dower lands are part of the same mine, f having no reason to believe, that there is any other distinct °j coa^ on ^ie dower lands,) and, that the shaft on which they are working passes through the seam or veins which was opened by the said John Ellis in his If e-time; but because, upon the principles of law and common sense, a mine once opened, is regarded every where. This doctrine is the more reasonable, as the lands where a mine is situate,- are usually sterile and of no value, except for the mineral; and, therefore, to deny the free use of it, would, be to deprive the dowress of all benefit from the endowment. Ellis Puryear and his wife also filed their answer, which contains, in substance, nearly the same matter as the answer of McRae and Dorrington. Upon motion of the defendants, the chancellor dissolved the injunction : being of opinion, that the two seams or strata of coal are proved to be connected by a substance of slate and coal throughout, and should be regarded as forming the same mine, according to the understanding of the colliers in England and Scotland, in like cases; and if so, the tenant for life, in right of her dower, might, upon common law principles, work the old shaft to every reasonable purpose, without stint; and, upon the same principles, she might open new pits or shafts for that purpose. The plaintiff, Crouch, obtained an appeal from this order of dissolution. But it is not admitted, that the free use of a coal mine, will produce any injury to the reversioner. On the contrary, the sinking of shafts is a benefit to him ; because it relieves him from the expense incident to exploring for coal. There is no instance of a coal mine being exhausted.