Staunton.

#### Cranes Nest Coal and Coke Company v. Virginia Iron, Coal and Coke Company.

September 13, 1906.

Absent, Keith, P., and Cardwell, J.

1. *Contracts—Construction—Mining Lease—Incidental Rights—Case at*Bar.—It is the province of the court to construe a^contract so as to give it effect, if practicable, rather than to defeat it, and, applying this principle in the present case to a certain mining lease, which, as construed by this court, confers upon the lessor the present right to use certain designated haulways and other instrumentalities through the demised premises jointly with the lessee for the purpose of transporting coal from the lessor’s adjoining lands, it is held that the right of the lessor to bring coal from the adjoining land to the haulways on the demised premises is an essential incident to the right to transport it along such haulways, and hence that the lessor has the right by cutting cross-entries to connect its adjoining .lands with the designated haulways. Driving such entries does not violate the terms of the present contract, nor is it within the meaning of section 2570 of the Code of 1904 forbidding excavations in any mine or shaft within five feet of the dividing line of other property without the written consent of the owner of the adjoining land.

2. Contracts—Construction.—Where a written contract is unequivocal, the court is not at liberty to search for its meaning beyond the instrument itself.

Appeal from a decree of the Circuit Court of Wise county. Decree for complainant. Defendant appeals.

*Reversed.*

The opinion states the case.

*786*J. Norment Powell*and *Ayers & Fulton,*for appellant.

*D. D. Hull, Jr., Bullitt & Kelly*and *Vicars & Peery,*for appellee.

Whittle, *J.,*

delivered the opinion of the court.

By successive transfers of the original demise the appellant and the appellee stand in the relation of lessor and lessee with respect to a certain coal mine, located on the waters of Fuller's branch, in AVise county, Virginia.

The appellant, by virtue of the provisions of a compromise agreement, amendatory of the original lease, was proceeding to drive certain cross-entries from its adjoining coal lands, on the north and west, over the dividing line between the properties, for the purpose of forming connections with the haul-ways extending through the leased mine, when it was injoined by the lessee from prosecuting the work on the ground that cutting entries constituted a trespass, the consummation of which would interfere with its mining operations and rights under the lease, and inflict irreparable injury upon it.

There was a demurrer to the bill, which was overruled; and from a final decree perpetuating the injunction this appeal was allowed.

The correctness of the ruling of the trial court on the demurrer depends upon the construction of clause 4 of the compromise agreement, which is as follows: The “lessor reserves, during the continuance of this lease . . . the right of way over any and every part and portion of the . . . demised premises, for roads, railways, waterways, and sidetracks, also such -use -as it . . . may desire, of all tracks, roads, rail-ways, waterways and sidetracks, constructed by the said lessee *787upon, the . . . demised premises; and also the right - . . to such use as it . . . may desire, for the purpose of removing coal other than that hereby leased, of entry or entries made by the said lessee through the coal hereby leased, if the same shall not injuriously interfere with the operations of the said lessee. Provided that proper compensation shall be made by the said lessor ... for such of said tracks, roads, railways, waterways, sidetracks constructed by the said lessee, such proper compensation to be determined by arbitration as hereinafter provided for; and provided, further, that the said lessee shall first have the refusal of leasing any such other coal, so as aforesaid to be moved through the coal hereby leased, whenever offered for lease, upon the conditions attached to such lease by the said lessor. But nothing herein contained shall be construed as requiring the lessee to keep open or maintain, otherwise than by placing in the first instance proper supports and leaving coal necessary to properly protect and support any entry or entries, tracks, waterways, sidetracks, headings or ravines, for the purpose for which the lessor . . . may have the right to use the same under this section. It is agreed that the lessor shall have the right at any time or times to designate not exceeding three haulways as those which it desires to be kept open for its use under this section, and which haulways, with necessary and proper ventilations and air courses, shall at all times be maintained and preserved as here- - inbefore provided, and the lessor shall make compensation only for the use of the tracks, roads, railways, waterways and sidetracks therein constructed by the lessee, as hereinbefore provided; but it is understood that the arbitrary right here given to the lessor to designate not exceeding three haulways in no way limits the right of the lessor to use any other haulway or haulways, and to have the same maintained as hereinbefore *788provided upon payment to the lessee ... of a reasonable compensation therefor and for the loss which the lessee may sustain hy reason of leaving the coal which will he required to support such haulway, which shall he determined by arbitrators if the parties ’ hereto cannot agree, which right is hereby expressly conferred.”

The meaning ascribed hy the trial court to the foregoing* clause denies to the appellant the right to the joint use with the appellee of the haulways, tracks, roads, railways, waterways and sidetracks referred to therein, thus adopting the pretension of the appellee that, according to the true interpretation of the. contract, the appellant’s right to use the three haulways which it is specially authorized to designate, and other subsidiary easements agreed on, was not to commence until after their use had been discontinued hy the lessee; or that, in any event, their use hy the appellant is coupled with the condition that it shall not injuriously interfere with the mining operations of the appellee.

It is also insisted that driving these entries across the dividing line between the properties violates the stipulation of the compromise agreement that the lessee “shall not at any time drive any drift, tunnel, room or entry within sixty feet of any boundary lines mentioned in this lease . . . unless hy written consent of the mining engineer of the lessor”; and section 2570, Va. Code, 1904, which forbids excavations in any mine or shaft within five feet of the dividing line of other property without the consent in writing of the owner of the adjoining lands.

We are of opinion that none of these contentions are well taken. It is quite clear that it was the general scope and purpose of the compromise agreement to invest the lessor with the right, by means of cross-entries, to connect its adjoining coal *789lands with the designated haulways through the demised premises, and to use these haulways and other instrumentalities provided for, jointly with the lessee, upon the terms agreed on, for the purpose of transporting coal mined on adjoining lands to the surface at the drift-mouths of the leased mine. The construction insisted upon, and which prevailed in the trial court, would wholly defeat that object.

There is nothing in the language of the compromise agreement to indicate that the appellant’s right to use the haulways in the manner indicated was not to commence until after the lessee had ceased to use them; but the contrary plainly appears. Thus it' confers on the lessor the right, at any time or times, to designate not exceeding three haulways for its use, and imposes on the lessee the duty, at all times, of maintaining and supplying these haulways with proper ventilation and air courses. These privileges are to continue during the term, and in return therefor proper compensation is to be made by the lessor. The original lease clothed the lessor with the right to require all entries to be kept open for future use, and the amended agreement unmistakably contemplates present use of the three haul-ways to be designated.

Having reached the conclusion that an immediate joint user of the three haulways to be designated by the lessor was intended, it necessarily follows that unavoidable inconveniences ‘incident to *the fair exercise*of the rights granted were within the contemplation of the parties, and assumed by the lessee; and it cannot now escape the consequences of the contract on account of resultant annoyances which naturally flow therefrom. The limitation that the use of the haulways shall not injuriously interfere with the operations of the lessee was intended to protect it against the abuse, but not against the fair enjoyment by the lessor of its contractual rights.

*790In regard to the allegation that driving the cross-entries over the dividing line between the properties violates the covenant prohibiting excavations within sixty feet of the dividing line/ and also the cognate statutory inhibition: It will he observed that the former is restrictive of the rights of the lessee, and the authority to drive these cross-entries being a necessary inference from the written contract is as much a part of it as if plainly expressed in the body of the instrument, and is, therefore, not in contravention of the statute.

It is'the province of the court to construe a contract so as to give it effect if practicable, rather than to defeat it; and to do that in this instance we must hold that the right of the lessor to bring coal from the adjoining land to the haulways on the demised premises is an essential incident to the right to transport it along such connecting haulways. *Southern Ry. Co.*v. *Franklin, &c., Ry. Co.,*96 Va. 693, 32 S. E. 485, 44 L. R. A. 297; *Gumbert*v. *McCracken*(Pa.), 18 Atl. 1068.

This construction of the compromise agreement disposes of the case on demurrer and renders further consideration of it unnecessary. The written contract being unequivocal, we are not at liberty to search for its meaning beyond the instrument itself. *Towner*v. *Lucas,*13 Gratt. 705; *Woodward, Baldwin & Co.*v. Foster, 18 Gratt. 200; *Martin*v. *Lewis,*30 Gratt. 672, 32 Am. Rep. 682; *Bank*v. *Walton,*96 Va. 435, 31 S. E. 890; *Slaughter*v. *Smithers,*97 Va. 202, 33 S. E. 544.

It follows from what we have said that the demurrer ought to have been sustained and the hill dismissed; but the dismissal must he without prejudice to the rights of the appellee to compensation for any coal to which it is entitled- and of which it may he deprived by the appellant.

*Reversed.*