court my name's john whitfield i'm an attorney in madisonville kentucky i'll represent the clift heirs in this case and i also have the privilege of representing the story years some of whom are here with us today i have reserved two minutes  outlined in my briefing required a right we believe that the lease in question talked about the right to renew and not the right to extend and because of that we believe a writing was required we believe that because of about two different things than one thousand of course you're aware from reading the response of brief counsel that the law in kentucky  more or less i mean the argument is that renew and extend no big difference i respectfully disagree with that ok and so our position that i hope you'll address ok thank you well under important the intent of the parties and the conduct of the parties under sixteen fifty one outlines exactly how to interpret that and when you look at the facts of this case and you look at the fact that there was this nineteen sixty seven lease that was what would happen was that stop to think well up your clients were not jumping up and down you know they weren't that they weren't they weren't jumping up and down but that in our opinion our position is in one nine hundred seventy seven that the lease terms changed and the lease terms still said renew still said five years every five years it was to renew the there's there's there's language in various kentucky cases about the choice of language really is not the controlling ma'am and it's it's our position that that's one spoke in the wheel days not absolute and it's not controlling but it is one spoke in the wheel and it can't be based upon the facts of every particular what other spoke in the wheel favors your position the conduct of the parties in the intent of the conduct of the party was that both of them were a very long time that record where some of my clients did complain to the defendants and did complain about the fact that they were are utilizing the property or property improperly is one that i would guess i'm sorry that would go i mean they they they changed the role their right was a reason to execute a new lease because of changes in terms one reason and we think well primarily reason that there were there were need to be a new lease  writing just because there were conditions present in their condition present in all of these leases one of which was timber one of which was agricultural law one of which was were other things that had to be done how can my clients be expected to lease and there's a term specific term in the lease it must be in writing so well that everyone will know whether or not those conditions present have been satisfied and there are material issues in fact in this case we believe that indicated th i thought you had a right to receive but not but none of that goes to still that doesn't really go to the terms of a contract he aims to will it it  goes and goes to quibbling about whether there was compliance with the terms of the contract that's one of the basis for which we believe the seventy seven lease is not valid we believe that the can even if it if the court is of the opinion my client set on a rights for a certain amount of time at the end of the day conditions present still have to be satisfied that it still has to be some some evidence that the conditions present recessed and they worked in this case i mean there has to be an objection that says there's these conditions are not being satisfied it's not things can go along swimmingly until someone said the lease is not valid i'm not an obviously that's happening now spam yes ma'am with the advice of counsel spam but for a long time civil court took some some import from the fact that for so long they said on the right i'm not totally understand here and i do but dead segues into the argument that i need to court at least to hear me out on is the prescriptive easement argument and that is where judge property in conjunction with the adjoining property yes yes in what where is that in the lease in the seventy seven lease there is there is language about what can be utilized with the with the premises itself this seventy seven least does not the use of the other lands like the apple lease have been doing and in fact judge russell found that there is there was a trespass but he also found that because there was a trespass which would be a breach of the lease which would be a breach of the condition precedent that because of the length of time there was prescriptive easement and as such this breach would be excused well the problem with that your honor is that you cite the language in this lease that prohibits the use of the property in conjunction with the neighboring property we were just just tell me what paragraph it's not in there your honor oh you know i thought you just told me it was a no no it's not in there it's our position that the use of the other lands you're alleging is a tort claim and but but but but but i'm also alleging that if even if it is a tort claim it's still a trespass and still a violation of my client's rights but it's not a violation of the l we think it is we think it's a condition precedent it's a violation of a condition precedent that that that adequate unlawful use of the land use be utilized by the apple lease if they breach that and if they trespass on our client's property then that is a breach of the lease of the condition presently and one of the differences in the seventy seven from the two prior leases was it has a term of ninety nine years now if this is not an automatic renewal situation every five ninety nine years in our opinion is a benchmark it's a back drop it but if you have a new lease every five years why have a limit of ninety nine i don't know i mean i can't answer that question and all i can tell  you is it's our opinion that if if that it was to be truly a ninety nine year lease then there would be no need to talk about renewing the lease every five years so what you do is you extend it every but it did say it didn't say it didn't say extend is said i know they use the wrong word but we look at the total document to determine what the terms mean even if the parties are inarticulate and i mean i understand i think that's years they received royalty checks every month since one nine hundred seventy seven and they religiously cashed those checks when they decided that they were unhappy after thirty five years with the with the payment terms of the leases they filed these lawsuits in an effort to force a rico shamen terms what's in it the the amounts that they were being paid would seem puny well i don't know the relative value which matters a great that was there was one of the arguments that the district court considered the unconscionable of the argument with where the payment terms too low and there were there were a number of problems with that argument as presented to the district court first to the can to under kentucky law there is no rule that unconscionable it is to be decided at the time the complaint is made or can be determined by change circumstances rather then determined at the time the contract is first entered to there's no kentucky case law for that that the the traditional rule is that cancian ability is determined at the time and this court has recognized in the middle of vs console case that there is no no support in kentucky law for the proposition that you should evaluate the conscionable of the of a deal at the time based on changed circumstances and as a matter of fact the only case that the that the appellant cited to support their claim that changed circumstances should be considered when determining unconscious billet he is the kentucky west virginia gas case which was an unpublished decision from the kentucky court of appeals in one nine hundred ninety eight which again this court addressed to the lady and the authority of that case in the nearly vs consul case and determined that that because it was an unpublished opinion was not authority that that the the law in kentucky what's that change circumstances should be considered claim of change change circumstances limited to the increase in the value of the limestone at the cost that the value of limestone in twenty seventeen is so much more than royalty thirty three cents a ton royalty in the in the appellants were receiving less than four cents or or seven cents depending on how much that was unfair that just the difference between four cents and thirty three cents was unfair with what there was no proof of and and the in the district court was whether there royalty was different from the royalties similarly situated landowners in that part of the state  with with limestone works so there was no proof of that that argument also failed to consider that that thirty three cent gross royalty that r d p receives is just that a gross royalty it's not a net royalty that thirty three cents is used you know already p is still on the hook for pang property taxes for pang and my mineral taxes are paying its attorneys to defend the lease so  you know that it's apples and oranges and finally the other thing that that argument failed to consider is that the circumstances i mean of course unconscious of billet is you have to look at the these leases were already in effect this quarry the testimony was was about to shut down and my r d p came in and over the next ten years eleven years pump millions of dollars into th quarry to make it a a valuable operation but for the investment that already people brought discord would have shut down interesting only the testimony from the appellants was that these leases when they were signed nine years earlier were in the words of the appellant's a godsend these mr storing in particular testified that it was his recollection that these that his lease allowed t family farm to continue that supplemented the family farm income and in fact they realized more income from these leases than they did from their dairy operation so godsend is mr stories or at least they had no other use bard related for this land that is that is what the record suggests your honor and in fact in both cases they continued after the leases were signed they continued to farm the land and in the clips case they continued to farm the entire i believe it was one hundred thirty four acres that were covered by the lease right up until recently because correy operations did not start or preparation operations did not start on their property until the last couple of years so they not only received monthly royalty payments they had the ability to continue to quarry or to to farm their land  for the for the last thirty that year i counsel to get back to the main issue the renewal or extension here i mean do you agree that the lease uses the wrong term when it says may be renewed that it should have used extend i don't think it's i'm not sure that i would agree that it's the wrong term because under is a distinction isn't there well there's the under kentucky law there is a theoretical distinction but the long kentucky for sixty years has been that those two terms are synonymous unless there is proof that the parties intended something to the contrary and  mr mr willows is correct that there are a couple spokes on the wheel one is what is the documents say does the document itself contemplate that a written renewal is required and that that's the situation that discord dealt with in the sixteen fifty one north collins case that you know that there is in the document in that case said that ronald rates would be determined by market value at the time the renewal was was  attempted and market value is not a definite term so that contemplated that they would there would have to be a determination of what market value is so arriving wouldn't would naturally have to be required that's not the case here the royalties are what the royalties are the the other consideration and probably the most important consideration is the conduct of the parties before the dispute arose and here there really is can't be any serious argument that the conduct of the parties before this dispute arose indicated that no written renewal was required the stories cashed more than four hundred royalty checks p had to renew the lease and riding never once even hinted that the that the leases had not that the lease had not been renewed so the conduct of the parties here clearly establishes the lexington flying service case created is the kentucky rule and that is what you look at is the conduct of the party and that is infinitely more important stories can't have it both ways they they either granted permission to use their property in connection with the coring of other properties or they did and and you can't say on the one hand that we didn't grant that permission and therefore you breached the lease but then on the other hand say you did grant that permission you knew we knew you were doing that and therefore you were not possessing or using the property actually openly and notoriously in some way that we did not give you permission to do so you can't they they can't have it both ways and if it i indeed their position innit it is because they planned it that we did not happen the right to use the product their property in connection with corn of other properties were the payments intermingled that is or or were they separate separable for the the so called trespass on the other property they received one check they received one check they received it and it was a royalty che important no but particularly for the mining or the coring that they did on the other properties no there was no they didn't receive anything other than the royalty check they didn't receive it separate check for the there was some compensation for that use we believe that the compensation was the roll to payments that they were receiving because partly arthel it's all correct because the lease does not does not say that we we can't use the property for the lease it's silent on whether we can do that we did it they knew we did it because they lived right next to the quarry and they farmed the property right next to the quarry and the testimony in the record from mr story was he went to the quarry hundreds on hundreds of occasions and he saw the quarry on almost a daily basis and he could see the quarry from his backyard so they certainly knew what the extent of the operations were they knew that there were buildings and activities and operations going on that day  you know now claim that we're not allowed by the lease and they didn't say anything until two thousand and thirteen i want to just briefly  notion that the that the leases were were violated the payment terms of the that they claim that the leases were were the conditions precedent were not performed that the payment terms were not satisfied  that was kind of a moving target for both of these appellants throughout but that the district court correctly concluded that there was really no legal basis interpret in the documents for agreeing with they claim the payment terms were that the district court also agreed that they're claiming that we were required to put back you know put it on a truck and take it out to their fields to spread it form is simply not supported by the lease so with that i see my time is up your honor and i will turn it over to the gentleman from le farge just in case you have any questions that you want to direct specifically before thank and as a result there i need to try to get deeper into that you say they weren't able to they got not one penny for that additional use will call it the adjacent jason land use i thought i understood from your learned opponent that big but it was all together whatever use they made they mean they paid you and i know you didn't cash the checks lately but they paid it all it's all together we they know what they took you know what they what they mind are quarried and then they wrote you a check for that now the indistinguishable from the the other work but how do we know how do you know that you weren't paid for that because elise said we were to get seven have percent seven have cents per per four thousand so there was a number a finite number based upon that and so there was no language at all in the same same league if they took if they took up for example from another property and you didn't try to find out about it we really don't know whether they were being compensated for rock that came from other property if neither one of segregated and you're being paid a royalty on the production of the kwara but not the other lands your honor not the of the lands that that there's nothing in the seventy seven lease that gave them the right to do what they did  all right thank you both are all for your argument will consider the case carefully