# Genet v. President, Managers & Company of the Delaware & Hudson Canal Co.

> The Superior Court of New York City · May 10, 1888 · 24 Jones & S. 27

URL: https://www.frixlaw.com/law-library/cases/8318938

## Case

- **Full name:** AUGUSTA G. GENET, and v. THE PRESIDENT, MANAGERS & COMPANY OF THE DELAWARE & HUDSON CANAL CO., and
- **Court:** The Superior Court of New York City
- **Decided:** May 10, 1888
- **Citations:** 24 Jones & S. 27
- **Precedential status:** Published
- **Opinion:** Dissent by Ingrahamfirstactionsecond
- **Judges:** Action, First, Ingraham, Referee, Second, Sedgwick, Sickles
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

Ingraham, J., (concurring as to the first cause of action, and dissenting as to the second).
I concur with my associates that on the appeal of the plaintiff the judgment should be affirmed for the reasons stated in the opinion of the referee.
I am however unable to agree to the conclusion arrived at on the appeal of the defendant.
The agreement which it is necessary to construe is dated the 28th of March, 1864, and is a lease from the plaintiff to the defendant of all coal contained in, on, or under a certain piece of land in the county of Luzerne state of Pennsylvania; said coal to include all the coal that can be dug from the premises described, together with the right to enter upon and into the said lands and to dig, mine, and remove from the described premises the said coal through or out of any shaft, etc., that the defendant may dig upon the premises ; and the said agreement further leases to the' defendant lands for piling coal or culm and all other appurtenances they may require for mining, receiving, removing, cleaning, screening, dumping, storing, preparing and forwarding coal to be mined under this agreement. The agreement also provided that the said party of the second part should not be held accountable under any circumstances for any damage that may be done to the surface of said land by the mining, preparing and removing of said coal. Said agreement then provided that the said parties of the second part should pay for twenty thou *60 sand tons in each and every year whether the same shall be taken out in such year or not, and the party of the second part agrees to pay for the coal, mined and taken out in pursuance of this agreement at the rate of twelve and one half cents for every ton of two thousand two hundred and forty pounds. And the said agreement also contained the following provision: “And it is further agreed, and understood that the parties of the second part, their executors and assigns may use and occupy the rights and privileges hereby granted, and the openings, buildings, fixtures and appurtenances made and constructed by them for the mining, preparing and forwarding coal under this agreement for the mining, preparing, and forwarding- coal from any adjoining or contiguous lands until all the lands that they desire to take coal from and that can be mined and taken out through said openings, shafts and slopes shall be exhausted.”
The referee, found that from the year 1876 to the date of his report the defendant had mined through shafts upon the plaintiff’s property the aggregate amount of 1,106,385^ tons of coal of which 497,614„0 tons were mined from plaintiff’s land and the balance mined from other lands of the defendant contiguous to the plaintiff’s land. That all the culm or waste coal from the coal mined through the shaft on plaintiff’s property known as the Marvin - shaft had been deposited on plaintiff’s land, and the land thus taken by the defendant for that purpose is upwards of seven acres upon which land the culm is now piled up to the average height of from forty to fifty feet.
The contract in question is a peculiar one and some of its provisions are certainly very onerous upon the plaintiff, but it is the contract made by the parties that has to be construed. The court has no power to make a new contract to relieve the plaintiff from the provisions of the contract made.
The legal effect of the agreement is to convey to the *61 defendant the coal in the plaintiff’s property capable of being profitably mined (Sanderson v. City of Scranton, 105 Penn. St. 469), with the right to the use of the property for the purpose of mining and preparing such coal for market together with the necessary land for piling the coal or culm to be mined under the agreement. These are rights and privileges that are expressly given to the defendant and are as much the property of the defendant as the coal which it has purchased and without which the coal itself would be of little or no value; and when the plaintiff gave to the defendant the rights and privileges granted by the contract for the mining, preparing and forwarding coal on plaintiff’s land for the mining, preparing and forwarding of coal from the adjoining or contiguous lands, until all of the lands that they desire to dig coal from and that can be mined and taken out through said openings, shafts and slopes shall be exhausted, they gave to the defendant the same right to use the lands of the plaintiff for the mining and preparation for market of its own coal as the defendant had to use the plaintiff’s land for the mining of coal that was upon plaintiff’s land. This right to use the plaintiff’s land for the mining of coal on adjoining or contiguous lands was not limited by the agreement to any particular time. It was to continue until the coal on the contiguous lands was exhausted. It did not depend upon the amount of coal taken from the plaintiff’s land nor do I see how by any reasonable interpretation of this contract it can be held that this use of the plaintiff’s lands was to be subordinated to the mining of the coal on the plaintiff’s land.
The defendant’s liability was confined to the payment for twenty thousand tons a year, and so long as it paid for twenty thousand tons a year, it complied with its part of the agreement and was under the agreement entitled to use the rights and privileges granted and the openings, buildings, fixtures and appurtenances made and constructed for the mining, preparing and forwarding coal *62 on plaintiff’s land for the mining, preparing and forwarding coal from the adjoining or contiguous lands. And to insert into the agreement a provision that this right was not to be exercised, until all the coal on plaintiff’s property was mined, would be the insertion of an entirely new clause in the contract and the result would ¡be that the court would make a new contract; not construe one already made.
The judgment also restrains the defendant from depositing culm from coal from the lands other than the lands of the plaintiff upon the surface of the plaintiff’s lands. By the agreement the plaintiff gave to the defendant “ the use of all the lands they may require for the purpose.....together with the lands for piling coal or culm and all other appurtenances they may require for mining, receiving, removing, cleaning, screening, dumping, storing, preparing and forwarding the coal to be mined under this agreement,” and the same privilege was granted to the defendant for mining, preparing and forwarding coal from any adjoining or contiguous lands. The right to deposit the culm on the plaintiff’s land was a right necessary for the mining of the coal, and as the referee found, necessary for the successful working of the colliery, and when the same right is given for the “ mining, preparing and forwarding coal on adjoining or contiguous lands,” the right to deposit the culm necessary for the proper mining and preparing for market of the defendant’s coal was clearly granted.
Nor do I think upon the facts found by the referee that the plaintiff is entitled to an injunction restraining the defendant from allowing the water to run from the mines upon the adjoining property where the gangways through which the water runs were actually opened and used for the purpose of mining the coal on the adjoining property through the plaintiff’s land.
There is no allegation that the defendant is insolvent or unable to respond for any damages done to plaintiff’s *63 property by any of the acts complained of which were not clearly allowed by the contract, and on the whole case I do not think the plaintiff is entitled to equitable relief.
I think therefore that the judgment so far as it is appealed from by the defendant should be reversed and a new trial ordered with costs to abide the event.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8318938. Public record. Not legal advice.