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DARBY v. TIFFANY
(146 N.E.)

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herein, has no vested right in the remedy or manner of trial provided by law, even though some may have been different at the date of commission of the offense, and it is further ordered and adjudged that the record contains a constitutional question involving section 10 of article 1 of the Constitution of the United States of America, and this court, having reviewed said question upon its merits, and all other errors assigned by the plaintiff in error herein, does find that there is no error upon the record in said proceedings and judgment.

It is therefore considered by the court that the judgment aforesaid of the Court of Appeals of Hamilton county, Ohio, be and the same hereby is affirmed.

Judgment affirmed.

MARSHALL, C. J., and JONES, MATTHIAS, DAY, ALLEN, and CONN, JJ., con

cur.

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CHATFIELD, Jr., v. STATE of Ohio et al. (No. 18642.)

(Supreme Court of Ohio. Dec. 19, 1924.) Error to Court of Appeals, Hamilton County.

DARBY, Executor, v. TIFFANY et al.
(No. 18742.)

(Supreme Court of Ohio. Nov. 25, 1924.)
Error to Court of Appeals, Lucas County.
Lee H. Schminck, of Toledo, for plaintiff in

error.

E. E. Lindsay, of New Philadelphia, and Ritter & Schminck and Kirkbride, McCabe & Boe

Dinsmore, Shohl & Sawyer, of Cincinnati, for sel, all of Toledo, for defendants in error.

plaintiff in error.

Charles S. Bell, Pros. Atty., and Nelson Schwab and Louis Schneider, Asst. Pros. Attys., all of Cincinnati, for defendants in error.

PER CURIAM. It is ordered and adjudged that this court does assume jurisdiction in deciding that it is discretionary for the trial judge to allow separate trials for those jointly indicted for the offense charged in the indictment therein, that the same applies to the remedy and manner of trial, and the defendant William H. Chatfield, Jr., plaintiff in error

PER CURIAM. It is ordered and adjudged that said petition in error be and the same hereby is dismissed, for the reason no debatable constitutional question is involved in said

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PER CURIAM. It is ordered and adjudged that this court does assume jurisdiction in deciding that it is discretionary for the trial judge to allow separate trials for those jointly indicted for the offense charged in the indictment therein, that the same applies to the remedy and manner of trial and the defendant George H. Beazell, plaintiff in error herein, has no vested right in the remedy or manner of trial provided by law, even though same may have been different at the date of the commission of the offense, and it is further ordered and adjudged that the record contains a constitutional question involving section 10 of article 1 of the Constitution of the United States of America, and this court having reviewed said question upon its merits, and all other errors assigned by the plaintiff in error herein, does find that there is no error upon the record in said proceedings and judgment.

It is therefore considered by the court that the judgment aforesaid of the Court of Appeals of Hamilton county, Ohio, be and the same hereby is affirmed.

Judgment affirmed.

MARSHALL, C. J., and JONES, MATTHIAS, DAY, ALLEN, and CONN, JJ., con

MULCAHY, a Taxpayer, etc., v. CITY OF AKRON et al. (No. 18704.)

(Supreme Court of Ohio. Dec. 9, 1924.) Error to Court of Appeals, Summit County. Commins, Brouse, Englebeck & McDowell, and Rockwell & Grant, all of Akron, for plaintiff in error.

Henry M. Hagelbarger, Director of Law, Smoyer, Clinedinst & Smoyer, and Mather, Nesbitt & Willkie, all of Akron, for defendants in error.

by this court that the judgment of the said PER CURIAM. It is ordered and adjudged Court of Appeals be and the same is hereby affirmed, for the reason that the record in this a misapprehension that it involved the question cause was ordered certified by this court under whether, in the matter of letting public contract where the provisions of a charter of a chartered city are in conflict with the statute applicable thereto, the provisions of the charter supersede the provisions of the statutes. The record disclosing that no provision of the statutes pertaining to the letting of public contract has been violated, there was no error in the judgment of the Court of Appeals, whatever reasons it may have assigned for such judgment.

Judgment affirmed.

MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, DAY, ALLEN, and CONN, JJ., concur.

VILLAGE OF DESHLER et al. v. NORTHWESTERN OHIO LIGHT CO. (No. 18560.)

(Supreme Court of Ohio. July 1, 1924.) Error to Court of Appeals, Henry County. Fred Gribbell, of Deshler, and James Donovan, Jr., of Napoleon, for plaintiffs in error. H. P. Armstrong, of Deshler, and Frank T. Dore, of Tiffin, for defendant in error.

PER CURIAM. It is ordered and adjudged that said petition in error be and the same hereby is dismissed, for the reason no debatable constitutional question is involved in said

cause.

Petition in error dismissed.

MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, DAY, and ALLEN, JJ.,

concur.

IRONTON & RUSSELL BRIDGE CO. v. MILLER. (No. 18603.)

(Supreme Court of Ohio. Oct. 21, 1924.) Error to Court of Appeals, Lawrence County. Johnson & Jones, of Ironton, for plaintiff in

error.

Corn & Roberts, of Ironton, for defendant in

(146 N.E.)

PER CURIAM. It is ordered and adjudged] that said petition in error be and the same hereby is dismissed, for the reason no debatable constitutional question is involved in said

cause.

Petition in error dismissed.

Crissinger, Guthery & Strelitz, of Marion, and Cook, McGowan, Foote, Bushnell & Burgess, of Cleveland, for defendant in error.

PER CURIAM. It is ordered and adjudged that said petition in error be and the same constitutional question is involved in said cause. Petition in error dismissed.

JONES, MATTHIAS, DAY, and CONN, JJ., hereby is dismissed, for the reason no debatable

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MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, DAY, and ALLEN, JJ.,

concur.

TOLEDO SOLDIERS' MEMORIAL ASS'N v. CITY OF TOLEDO. (No. 18108.) (Supreme Court of Ohio. June 17, 1924.)

Error to Court of Appeals, Lucas County. Ralph Emery and Charles P. Carroll, both of Toledo, for plaintiff in error.

F. M. Dotson, Director of Law, and M. S. Dodd, both of Toledo, for defendant in error.

PER CURIAM. This day came the plaintiff in error, by its attorneys, and the defendant in error, the city of Toledo, by its attorneys, and represented to the court that an amicable settlement of the several matters in controver

STATE ex rel. BEHM v. WOLFERT et al. sy, as appears in the pleadings and record in

(No. 18557.)

(Supreme Court of Ohio. July 1, 1924.) Error to Court of Appeals, Lucas County. Hackett & Lynch, of Toledo, for plaintiff in

error.

said cause, had been agreed upon; and whereas, in order to carry into effect and complete the terms of such settlement it would require the action of the Court of Appeals of Lucas county, Ohio; and whereas, the said plaintiff in error and said defendant in error, by their said attorneys, request and consent that the

D. J. O'Rourke and Lawton & Saalfield, all said cause be reversed and remanded to the of Toledo, for defendants in error.

PER CURIAM. It is ordered and adjudged that said petition in error be and the same hereby is dismissed, for the reason no debatable constitutional question is involved in said

cause.

Petition in error dismissed.

MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, DAY, and ALLEN, JJ.,

concur.

IRVINE, Adm'x, v. ERIE R. CO.
(No. 18479.)

(Supreme Court of Ohio. July 1, 1924.) Error to Court of Appeals, Marion County. Justice, Young & Mouser, of Marion, for plaintiff in error.

said Court of Appeals for the purpose of completing and carrying into effect such settlement:

It is ordered that the judgment and decree of the Court of Appeals of Lucas county, Ohio, mentioned and referred to in the petition in error in the above-entitled cause and proceeding in error, be and the same is hereby reversed, and said cause remanded to the Court of Appeals, for the purpose of further proceedings in said Court of Appeals carrying into effect the terms of such settlement with such order and decree as the parties agree upon and said court may approve.

The action of this court in so reversing said judgment and remanding said case is taken solely upon the request and consent of said parties as aforesaid, without this court passing upon or determining the matters complained of in the said petition in error, or involved in the record and proceeding herein, except as aforesaid.

Judgment reversed by stipulation of parties.

(315 Ill. 312) FOWLER et al. v. MARION & PITTSBURG COAL CO. (No. 15292.)

(Supreme Court of Illinois.

Dec. 16, 1924. Rehearing Denied with Modification Feb. 14, 1925.)

1. Mines and minerals 62(1) -Extent of Interest conveyed by mining lease depends on intention of parties, to be ascertained from language used.

most

8. Equity 153 - Allegations taken strongly against pleader on demurrer. On demurrer, allegations of bill will be taken most strongly against pleader.

Duncan, C. J., and Farmer and Dunn, JJ., dissenting.

Error to Circuit Court, Williamson County; D. T. Hartwell, Judge.

Bill by William H. Fowler and others against the Marion & Pittsburg Coal ComDecree of dismissal, and complainpany. ants bring error. Affirmed.

Whether mining lease conveys interest in land, and, if so, whether it conveys a freehold or some lesser estate, depends on the intention of the parties as expressed in the language & Fowler, of Marion, for plaintiffs in er

used.

2. Mines and minerals 48-Coal under soil is real estate, capable of being held in fee by person other than owner of surface.

Coal under the soil is real estate, capable of being conveyed and held by title in fee in one person, while the right to the surface is in another.

3. Mines and minerals 56-Coal lease is grant of interest, and not mere license.

A lease of the right and privilege to take away coal from lessor's land is the grant of an interest in the land, and not a mere license to take the coal.

4. Estates -Estates classified; "freehold estates;" "estates less than freehold."

Estates or interests in lands are of two kinds: "Freehold estates," consisting of any estate of inheritance or for life in either a corporeal or incorporeal hereditament existing in or arising from real property of free tenure; and "estates less than freehold," consisting of estates for years, estates at will, and estates at sufferance.

Walter M. Fowler, of Chicago, and Fowler

ror.

William H. Warder and Hosea V. Ferrell, both of Marion, for defendant in error.

HEARD, J. Plaintiffs in error, who are the heirs of William T. Fowler, deceased, filed in the circuit court of Williamson county their bill in chancery, and thereafter their amended bill in chancery, praying that the defendant in error be required to release of record, in accordance with the provisions of section 22 of chapter 94 of Cahill's Statutes 1923, a certain instrument of writing executed by Fowler in 1906 to the assignors of defendant in error and designated as a certain forfeited coal mining lease. Defendant in error demurred to the amended bill. The court sustained the demurrer and dismissed the bill for want of equity. This writ of error was sued out to review that decree.

[1] The first question to be considered here is whether or not a freehold is involved. In determining whether or not instruments of writing like the one in question convey any

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Free-interest in land, and, if they do, whether hold.]

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6. Mines and minerals

70(6)-Bill to enforce forfeiture of coal lease for nonpayment of royalties held insufficient.

Bill to enforce forfeiture of coal lease providing for forfeiture on lessee's nonpayment of royalties, alleging merely that lessee had deducted one-half of the royalty, without stating

amount of deductions or that notice or demand was served as provided in lease, held insufficient.

7. Mines and minerals 70(6)-Lease not forfeited for ground other than that pleaded and stated in notice of forfeiture.

Coal lease will not be forfeited on ground other than that alleged in bill and stated in notice of forfeiture.

or not they convey a freehold or some lesser estate, we must first ascertain the intention of the parties to the instruments, as that intention has been expressed by them in the language which they have used in the instruments themselves.

The instrument in question, which is set out in full in the amended bill of complaint, provided that the party of the first part, for and in consideration of $1 and other considerations, demised, leased, and to mine let to G. H. Goodall and C. A. Gent, and their successors and assigns, all the coal contained in or under 240 acres of land described in the instrument. The instrument contained the following provision:

"The coal hereby leased to include all the coal that can be economically mined or taken out from the above premises, together with the right to enter upon and into said lands, and to dig, mine, and remove said coal; and the said parties of the first part do hereby lease and grant unto the said party of the second part, his successors and assigns, the right of way and use of and for a railroad, mine roads,

(146 N.E.)

wagon roads, air shafts, turn-outs, switches, [ the land for an unlimited time to the extent reservoir, ditches, and drains they may find that the same were necessary for the workit necessary or convenient to construct upon ing of the mine. A grant of such a writing or across said tract of land for the proper is in legal effect a conveyance of a freehold mining of said coal, provided the same shall not estate. Watford Oil & Gas Co. v. Shipman, be located within a garden inclosure or in any way interfere with dwelling houses or other 233 Ill. 9, 84 N. E. 53, 122 Am. St. Rep. 144; buildings; also the use of land for piling coal Bruner v. Hicks, 230 Ill. 536, 82 N. E. 888, or culm, and for preparing and forwarding the 120 Am. St. Rep. 332; Ohio Oil Co. v. coal to be mined under this agreement, to- Daughetee, 240 Ill. 361, 88 N. E. 818, 36 L. gether with the right to take, without charge, R. A. (N. S.) 1108. In the instrument in from said land all the earth and other material, except timber, required in the construction of writing in question it was provided: a railroad through said tract, or reservoir for water thereon; and it is further agreed and understood that the party of the second part, his successors and assigns, shall have the right to rebuild, reconstruct, or remove any or all the buildings, fixtures, appurtenances, and improvements during the continuance of this agreement, and until the coal in the adjoining and contiguous lands that can be worked out form these openings, slopes, shafts, and tunnels shall have been worked out, the removal of buildings, fixtures, and appurtenances and improvements to be made within a reasonable time after the coal in and under the lands shall have been exhausted."

[2-5] Coal under the soil is real estate, capable of being conveyed and held by title in fee in one person while the right to the surface is in another. The owner of land may convey the coal and mineral rights and reserve the surface, or convey the surface and reserve the mineral. When such a conveyance is made, two separate estates exist, and each may be conveyed or devised, or will pass by descent, each is subject to taxation, and each is real estate. Big Creek Coal Co. v. Tanner, 303 Ill. 297, 135 N. E. 433. A lease of the right and privilege to take away coal from the lessor's land is the grant of an interest in the land, and not a mere license to take the coal. Consolidated Coal Co. v. Peers, 150 Ill. 344, 37 N. E. 937. Calame v. Paisley, 296 Ill. 618, 130 N. E. 310. Estates or interest in lands are of two kinds: Estates of freehold and estates of less than freehold. A freehold estate is defined as any estate of inheritance or for life in either a corporeal or incorporeal hereditament existing in or arising from real property of free tenure. 10 R. C. L. 647. Estates less than freehold are, as the term signifies, estates or interests in land less than a freehold, and are of three kinds: Estates for years, estates at will, and estates at sufferance.

The instrument in question in this case conveyed from the lessor to the lessee an interest in the lessor's land, and, while this interest was subject to be forfeited upon a certain contingency expressed in the writing, this interest was not an estate for years, at will, or by sufferance, but by the lease in question the lessee was given the unlimited right to go upon the land in question and mine for coal, and also given divers specific easements into and over the surface of

"That the party of the first part shall pay all taxes on the land hereby leased and that the said party of the second part shall pay all taxes on his buildings and improvements; and the said party of the second part, his successors and assigns, hereby covenants and agrees to pay the said party of the first part or his legal representatives the sum of 3 cents per ton for every ton of 2,000 pounds of good, clear, merchantable mine run coal taken from said abovedescribed lands, the said three cents per ton for coal mined as aforesaid to be due and payable only on the 1st day of the second month succeeding the month for which the royalty shall have accrued. It is further agreed and understood that after the first year the said party of the second part, his successors and assigns, shall pay to the party of the first part or his grantees or heirs an annual rent of $1 per acre until actual mining operations are commenced, either upon the lands hereby leased or upon adjoining and contiguous lands through which the coal herein intended to be conveyed may be mined and removed; that is to say, the party of the second part, his successors and assigns, shall pay annually on the 1st day of January to said party of the first part, his grantees or heirs (who shall be legally entitled to the fee-simple ownership of the lands), the sum of $1 for each acre of the tract out of which no coal at that time shall have been mined and removed, and all payments of rent so made shall be credited and allowed as advanced payment of royalty of 3 cents per ton of 2,000 pounds reserved as aforesaid, and shall be deducted without interest installments, not exceeding at any one time, when deducted, one-half of the whole sum due in the monthly payments for the royalty from which said installment is deducted. And it is furthermore agreed that, if at any time the said party of be in default and fail to pay any sum due the second part, his successors or assigns, shall for royalty, as aforesaid, for the term of 30 days after written demand therefor by the party legally entitled to demand and receive the same, the party of the second part, his successors and assigns, shall forfeit all right to mine or otherwise hold and enjoy the said tract of land, and after such default and demand, as aforesaid, the party legally entitled to the ownership of said land in fee may at once, or at any time thereafter, enter into the exclusive possession therof, and hold the same free and discharged of every and all claims of the party of the second part, his successors and assigns, or other legal representatives. the party of the second part or their assigns And it is further agreed and understood that are to commence sinking shaft or building a railroad upon the above-described lands, or lands adjacent to or in the vicinity thereof, and from which the coal under said lands

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