Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1870-02-23

without authority, there being no judg
= ment on which to base it. Verdict 70
: plaintiff against Latin and Faunce 70
: $40. Sutlif for plaintiff; Hutehins 70
defendants.
Hugh B. Wick VS.. Jonathan Warns
and others, was next tried. This was
suit brought against the Executor Q
Myron 1. Arms, late of Youngstown
2 and Crawford & Son Of Cleveland, upor
a coal lease made between plaintiff anC
Henry Wick, as lessons, and Myron !
Arms in his lifetime, an interest, il
which had been assigned to Crawford &
Son by Arms. Subsequently and befor'
commencement of suit, Henry Wick as
signed all his interest to plaintiff. The
lease among other provisions, had the
following:
"And the said party OF the second part
for himself, his heirs and assigns, fur.
Their covenants and agrees to mine and
remove from said tract of land at least
$1,000 tons Of coal per year from the date
hereof, and to pay therefor to the said
lessons at the rate Of A cents per ton for
all coal mined from said land as the same
comes from the mines or bank, withoutde-
duction for slack, water ~severings or any
other account, and all to be paid as here
matter particularly specified, aud the
ssid party of the second part, for himself,
his heirs and assigns, further covenants
and agrees that in the event ofhis failure
TO mine and take out 10000 tons of coal
yearly as above specified, he will, never
thelesS accoun 10 and with the lessons,
and pay them their proportion as above
set forth, of that quantity of coal the
anne as though he had mined and re-
moved the same from said premises"
Lease further provided 'that lessee
should keep accurate account of all coal
mined during the month, and at expira-
ton of every 3 months to account and
pay lessons in the proportion and at tie
price stated for all coal mined during
said 3 months, but in no case to be less
than a payment for 5000 tons quarterly.
And in the event of said second party,
his heirs and assigns falling TO make
such payment, then the lessons shall
have the right TO suspend mining opera
tons until payment is made, but in such
case said second party shall remain liable
TO pay said lessons for their proportion Of
10000 tons annually as h~ereinbefor pro-
vided."
The defendants took possession of the
coal bank Feb, sth, 1862, and mined coal,
paying royalty as required by the lease,
until Nov. I'd, 1865, when they abscond-
ed the premises on the plea that the bank
had been exhausted of all coal which
could be probably mined. They had,
however failed to raise the amount
named ia the lease, and this snit was
brought to recover damages for that fail
ure. The defence commended that the
mineable coal was exhausted, and that
they could notbe required 10 mine coal,
or pay for it, unless it actually existed
on the premises and could be reasonably
mined; that IN fact the lease was but a
purchase of the coal. The plaintiff, in
reply, contended that the terms of the
lease were absolute and bound defend
ants to pay for the amount stipulated,
whether in the bank or not The con-
of the lease-in this respect, was
argued at considerable length by the OPP
posing counsel. The Court held and
charged the jury that if the defendants
had shown, by fair preponderance of ev-
idence, that they had mined all the coal
which was in the bank, reasonably mine
able, that would constitute a defence.
Verdict Saturday morning for plaintiff,
S4,S9S.S7. Plaintiff claimed abeatSlS, O00.
Notice Of second trial by both parties.
F. Z. Hutehins and Gen. Sanderson for
plaintiffs; Judge Hoffman, Hon. Geo.
Wiley Of Cleveland, and Judge Sutliff
for defendants
On Saturday morning the case of Ira
h. Bunnell VS.. r. B. Potter, Receiver,
vas commenced. In this case the plain
tiff claimed damages for injuries to his
person oocasioned by a hIl of some 40
feet Or more, down into a gravel bank,
to have been dug by defendants
employees across the travelled road lead
ing from Ravenna, Portage county, to
Hudson, Summit county. 1t appeared
from the testimony that in September,
1856, the Atlantic & Great Western Rail-
way Co., for the purpose of opening a
gravel bank and getting gravel for bal
their road, dug into a hill over
passed the road above mentioned
and to accommodate travel, with
approval of the supervisor Of
road district, directed the travelled
road around the hill, the old road over
hill, being Immediately thereafter
rendered impossible. This situation Of
the Receiver found when he took
Of the Railroad about the lst, Of
1867. He continued to dig from
the gravel bank during that fall and du-
ring the season of 1867. When the new
road was made Instructions were placed
across the old road to turn the travel
the hill, and these distractions
remained for sometime, though when
hey were removed, or by whom, did
not appear. The workmen in the Re-
,eivers employ were CARING dirt during
he summer and fall of 1857, from the
on either side of the old road,
Town by the point OF divergence, up ,
IN the new road, using the old road bed
part of the time and making cart tracks
IN either side. The accident occur
ed on the night of Nov. 18th, 1857,
bout 6 o'clock. The plaintiff was driv-
ng from Ravenna 10 Hudson in a COW
red buggy, having with him a Mrs.
a lady of 80 or 60 years of age, and
vas picking the way along with a lsntern.
lie had been well acquainted with the
oad in former years, but did not know
# the change. They passed by the
Joint where the new road led TO the !
and assembled the hill by the old
Dad, leading directly to the gravel pit, !
distractions having been placed in j
he way. The night being very dark.
horse was unable to see, and the first :
hing the travellers knew Of danger they .
we're precipitatsd over the bank and |
lown a distance Of about 40 feet. The l
lorse was killed, the buggy smashed to
and Mr.. Runnell broke one of 7
he bones near the knee and received =
evere injuries in the abdomen, while g.,
frs. Merrill was so little hurt that she ]
Eas able to get up and run for help
Fhich soon arrived, and Mr.. B. was re- 6
ieved from his ENHANCEMENT. .
The defence denied that it wa the /
.~eeeiver's duty to keep distractions e
.roaa the old road and If mt ha uaS {