injunction, the judge below thereupon made an order that, upon such appeal being perfected by filing a bond, etc., as required by him, the order granting the injunction should be revived and continue in force. Plaintiff's perfect the appeal, and apply to the supreme court for an injunction pending the appeal, on the ground that defendants are disregarding said reviving order, and obstructing to the ruin of plaintiffs: held, that the application must be denied, if the court had the power to grant it; that the remedy of plaintiff under the reviving order was ample to protect him until the appeal could be heard, or the injunction be dissolved by some competent authority. Eldridge v. Wright, 15 Cal. 89. Interference of Supreme Court.-Instance of reversal of decree of the lower court refusing an interlocutory injunction reversed by the supreme court, the court below being ordered to issue the writ. Whitman M. Co. v. Baker, 3 Nev. 386. Defendant Entering by Collusion with Tenant.-Defendant asserting title, but admitting that he obtained possession through plaintiff's tenant, without plaintiff's knowledge, enjoined upon the ground of the mode of his entry. Anonymous case cited in Norway v. Rowe, 19 Ves. 144. Misnomer of Immaterial Party.-In an action for an injunction to stay waste, or the asserting of a hostile title by the defendants, and for an accounting, where the relief granted is limited to the injunction prayed for, the fact that a party, only necessary to that branch of the case which relates to the accounting, was sued by a wrong name (Washington Gold Q. M. Co. instead of Washington Q. M. Co.), does not operate to the prejudice of the defendant, and is immaterial. Parrott v. Byers, 40 Cal. 614. Costs, Discretionary.-Upon case of perpetual injunction. against mining with verdict for damages, held, that the allowance of costs was discretionary with the court. Esmond v. Chew, 17 Cal. 337. CHAPTER XXXIX. MINING CLAIMS BEFORE COURT 3. COAL LANDS. § 710. Working on the Dip-Easement-Drainage-Flooding. § 711. Colliery-Definition, etc. § 717. Evidence as to whether a Mine is Exhausted. § 718. Lord Rokeby's Case, § 719. Circular Instructions, April 15, 1880. § 710. Working on the Dip-Easement-Drainage-Flooding. Where there are two mining operations, one owner working on the upper level and one on the lower level of the same vein, the owner of the upper level, operating in the most approved method and with care, is not required to control the natural flow of the water downward, and may work his coal out down to his line. And the owner of the subjacent level owns a servitude, and must leave a pillar of coal to support the gangway, and keep out the water from the level above. Adjoining owners of the same level of the same vein owe no special duty to each other. When, however, the owner of the subjacent land has created a servitude upon his land in favor of the subjacent owner, such as a rig to drive an air-way through his works and to connect with the surface, such owner, after he has worked all his coal out, and is about to abandon his workings, must give reasonable notice to the owner of the dominant tenement; and for failure so to do, equity will restrain him from permitting the water to fill up, if by so doing it will destroy the easement; the owner of the dominant tenement to be at the expense of pumping the water until the injury can be remedied. Reasonable notice is relative, and depends upon the work to be performed. Philadelphia C. & I. Co. v. Taylor, 7 Pac. L. R. 127; 5 Leg. Gaz. 392; 1 Leg. Chron. 361. § 711. Colliery-Meaning of the Term.-The party claiming under an agreement to sell all of a certain "interest in the shaft and slope collieries," offered to prove that the term "colliery" means a place where coal is dug or mined, embraces all the movable property of the mines, used or placed there to be used in the working of the mines, and was so understood by all persons engaged in mining in the county of Schuylkill, where the collieries were situate, which offer the court refused: held, that he had a right to prove its meaning, by the evidence of persons engaged in the same trade or business, as a term of art, and that the rejection of the offer was error. But the court did not err in refusing to define to the jury according to the meaning expressed in the offer; and that if it were taken from the lexicographers without the aid of testimony, it would express no more than "a place where coals are dug." Cary v. Bright, 58 Pa. St. 70. 712. Act of God.-A coal company, under its charter, constructed a railroad to connect with Lehigh navigation, which thus notoriously became indispensable for the transportation of its coal. All contracts with the coal company were made in view of these facts. The coal company contracted with plaintiffs for the delivery of a large quantity of coal during a season. Before the time for delivery of a large part of the coal a flood swept away all the works of the navigation company, so that the coal company were prevented from filling their contract: held, that they were excused from compliance while so prevented. Lovering v. Buck Mt. C. Co., 54 Pa. St. 291. Access to Lower Level of Coal Seam through the Upper Level.The upper veins of coal of a tract in the forest of Dean mining act, 1 and 2 Vict. 43, to the plaintiff, with a reservation that the underlying veins might be galed to other parties "but to be worked so as not to impede or injure the working of tracts already allotted." The veins underlying the plaintiff's colliery were afterwards galed to the defendant, who sank a shaft through the plaintiff's works: held, that the restriction applied only to the workings of the lower seams when reached, and did not abridge the right of the defendant to sink a shaft through the upper veins. Goold v. Great Western D. C. Co., 2 De G. J. & S. 601. § 713. Trade.-A colliery is a species of trade; its incidents distinct from other landed property considered. Williams v. Attenborough, 1 Turn. & R. 70. Trading Concern.-A colliery is not only the enjoyment of the estate, but in part the carrying on of a trade. An engine for working it is to be regarded as a trade fixture. Dudley v. Ward, Amb. 113; Wren v. Kirton, 8 Ves. 502. Partnership.-A colliery worked by a partnership upon dissolution can not be parted-it must be sold. Wilde v. Milne, 26 Beav. 504. Account.-A colliery is a kind of trade, and therefore an account of profits may be taken in chancery. Story v. Lord, 2 Atk. 630. Grant to Colliery-Construed.—When the liberty of making a drain was granted for the purposes of an intended colliery, such grant remains, and the right of repair continues as long as the object of the grant, to wit, as long as the coal might last; and the colliery is not limited in the use of such drain to the working of particular veins, or to working under any particular closes or pieces of ground. Hodgson v. Field, 7 East, 613. § 714. Fixtures.-There may be many things incident to a colliery as fixtures, though not actually affixed to the freehold, but the mere loose movables, in the absence of any usage or general understanding, would no more pass as such than the tools of a mechanic in the sale of his shop. Cary v. Bright, 58 Pa. St. 70. § 715. Equity Jurisdiction.-In England a court of chancery will not undertake the working of a coal mine, or enter a decree which would involve the superintendence of the working of a colliery. Wheatley v. Westminster C. Co., L. R., 9 Eq., 538. § 716. Judicial Sale.-The sale of a colliery in execution of a trust will not be set aside to let in a higher bid upon the same footing as real estate. The incidents attaching to it as a trade, and its liability to destruction, and to great fluctuations in value, considered. Williams v. Attenborough, 1 Turn. & R. 70. Judgment Creditors.-Judgment creditors seeking to enforce performance of an agreement for carrying on a colliery, so as to make it available as assets, must take it subject to all engagements as a continuing concern. Burroughs v. Elton, 11 Ves. 29. § 717. Evidence.-Whether a coal mine is exhausted is a question of fact for the jury, and it is proper to hear evidence of usage or custom showing when a mine is deemed exhausted. Walker v. Tucker, 70 Ill. 527. Govenant not Implied.-A covenant in a lease of a colliery to work continuously, where not expressed, will not be implied. Jejon v. Vivian, L. R., 6 Ch. App., 742. § 718. Lord Rokeby's Case.-By a deed of grant and license the licensee was empowered to win and work all and every or any of the coal mines, seam and seams of coal, under certain lands, and to reimburse himself all expenses incurred in the winning out of the profits from the sale of the coal, and it was provided that after payment to the licensee of all expenses in winning the said colliery, coal mine or coal mines, seam or seams of coal, he should pay the grantor such royalty for the coals yearly wrought out of the said coal mines, seam or seams, as should from time to time be awarded by two arbitrators, once in every five years, whilst the said coal mines, seam or seams of coal, should continue to be wrought. More than one seam of coal lay under the lands. The licensee after winning one seam went on to win another: held, by the house of lords (reversing the decision of the court of appeal upon this point), that the whole colliery was not won when the first seam was won, but that the deed was to read separatim as to the winning of each seam, and that the licensee was entitled to reimburse himself the expenses of winning the second seam before any royalty was payable as to that seam. Sir George Elliott v. Lord Rokeby, 7 App. Cas. 43. § 719. Coal Lands. DEPARTMENT OF THE INTERIOR, WASHINGTON, D. C., April 15, 1880. Gentlemen: The act of congress, approved March 3, 1873, entitled "An Act to provide for the sale of the lands of the United States containing coal," is as follows, to wit: Sections 2347, 2348, 2349, 2350, 2351, and 2352, revised statutes. pages 14-16. Your attention is called to the following points: See 1. The sale of coal lands is provided for: 1. By ordinary private entry under section 1; 2. By granting a preference right of purchase based on priority of possession and improvement under section 2. |