#### Tichenor, et al. v. McHenry Coal Co.

(Decided November 18, 1919.)

Appeal from Ohio Circuit Court.

1. Mines and Minerals — Royalties—Damages.—In tbis action by lessors to recover of *the*lessee of coal lands, royalties which *they*claimed tbey would bave received under tbe lease for coal mined tbereon, but for tbe lessee’s abandonment of tbe lease before tbe expiration of tbe term; and also to recover damages, claimed to bave resulted to tbe leased premises, from, tbe lessee’s alleged improper manner of conducting its mining operations tbereon: Held, that the judgment of tbe circuit court rejecting both claims and dismissing tbe petition, was authorized by tbe evidence.

2. Mines and Minerals — Royalties—Evidence.—Tbe first claim was properly rejected because, according to tbe evidence, the royalties admittedly received by tbe lessors, altogether, not only paid what was due them under the lease as long as tbe mining operations were conducted by tbe- lessee thereunder/ but also what tbey would bave been, entitled under tbe terms of tbe lease to receive,: by way of royalties, if tbe mining operations on- tbe land bad continued the full term of the lease, ......

*7283. Mines and Minerals — Damages—Pleading—Evidence.—If it could be said that the averments of the petition respecting the second claim showed that the injuries to the land complained of, resulting mainly from the dumping of waste from the mine on it, were not necessarily incidental to the proper conduct of the mining operations and such as the parties, in entering into the lease, must have contemplated would necessarily result to the land, it was, at any rate, made to appear from the weight of the evidence that •this was the case.

WOODWARD & KIRK and HEAVRIN & MARTIN for appellants.

H. P. TAYLOR for appellee.

Opinion of the Court by

Judge Settle

Affirming.

This action was brought by appellants in the Ohio circuit court, seeking to recover of appellee damages alleged to have resulted to certain leased premises while in its possession; also certain royalties, at the rate of $30.00 per month, claimed’ by appellants for coal that was or might have been mined by appellee on the sam0 premises. The answer of appellee put in issue all the allegations of the petition and the trial resulted in a judgment dismissing the petition, from which judgment this appeal is prosecuted.

The demands of appellants arose out of the alleged abandonment by appellee of a lease of certain coal lands made it by appellants, appellee claiming that such abandonment resulted because the supply of coal under the land became exhausted and made the further mining of same unprofitable and impossible, and gave it .the right, reserved therein, to’ terminate the lease. The showing made by the answer and proof as to the matter of the royalties claimed, seems to fairly sustain the defense! that nothing was due appellants on that score; in other words, that the royalties admittedly received by appellants altogether, paid what was due them under the lease and all they would have been entitled to receive, if the mining operations on the land had continued for the full term of the lease, We think the claim of appellants to the royalty was properly refused by the court.

• The alleged injuries to the leased premises for which appellants ■ claimed damages were not sufficiently shown by the evidence. It may-well be questioned whether the averments of the petition show that the injuries complained of, which seem to have resulted mainly from the *729dumping of waste from the mine on the land, were not necessarily incidental to the proper conduct of the mining operations and such as the parties, in entering into the lease, must have contemplated would necessarily result to the land. At any rate, the weight of the evidence seems to be to the effect that this was the case.

It is true appellee did not notify appellants of its purpose to abandon the lease after nearly completing the term, but as the latter received all the royalty they would have been entitled to had the lease not been abandoned, and the land escaped any injury that might have resulted to it by further operation of the mine, we quite agree with the circuit court that they were not damaged by the failure of appellee to give them notice of its purpose to abandon the lease.

As we find no cause for disagreeing with the conclusions reached by the circuit court, the judgment must be and is affirmed.