The Roanoke times. [volume] (Roanoke, Va.) 1890-1895, 1890-07-08
An Important L egal D. cislon.

About one year ago Noah F. VERT, through
lis attorney, Judge Samuel Williams, filed I
dill In chancery in the Hastings court OF thi
,ity, in which he sought to set aside and can
col a lease executed by him to MeSsrs. a.
Lewis and Moses Preston,and all subsequent
assignments hereunder, on a tract OF land ncal
this city containing fOrty-threc acres and SUP
posed to contain very valuable deposits or iroi
ore. Judge Robertson rendered his Opinion
sustaining plaintiff bill. inc dccl
sion follows:
Noah F. Wertz VS.. the Rorer Iron Company
The first question to be considered IN TN
case is whether decree can be made wlthou
Lewis and Preston and their immedint .
grantees being made parties. AS they hay
parted absolutely with all interest in the sui
]ect matter and decree could not affect thcl
rights in any manner, there Is no necessity
make them parties, and the established rule :
courts OF equity is not to require that III
should be done In eases or this kind, oe
Sands suit I'M Equity 2Ol and section case
there cited.
In order to determine the respective rlghl }
OF the parties IL is necessary TO coustruc u
deed OF Noah +. Wertz and wife to Lewis an
Preston executed the 10Th April. 1881, undt :
which the Rorcr Iron Company claims TIT
IF that deed which on its face purports 10 DC
lease for the term OF twenty years or al u
iron. coal or othor minerals which may ! :
found upon the land. is TO he considered strict
US Il lease, creating between the parties the r
lntion OF landlord and tenant Tor the I'LL
i u
that the defendant and those claiming under
have clear right until the twenty years O.
pire to enter upon the land and mine and carl !
away the minerals, but IL such Is notthe natui .
create s license. then there can be no doul
that IA long rs the license remains executor
and the party has done nothing under II, IL
rcvokable.
These general propositions are clearly
tabishcd by the cases OF BurlSsdale vs.. Hari
to1 YIN -Il.nnl HnIps0D Perkins and MS
81 Va 106; also Reynolds VS.. Cook, ~ Va. 81
But in none OF the Virginia cases which hay
found is there any clear or satisfactory discu
sion Of the principles upon which IL has bee
dctormined that Il mining contract is or is III
n license. In the case of Rorcr Iron COmpan
vs. Trout and wife, 50 Va. 80, there was dec
very similar TO the one in this case but thcl
the deed was declared 10 he void on account
fraudulent representations made by IL
grantees and the construction and effect OF II
deed was not directly passed upon. rs II W;
not necessary to do so. but In referring TO II
language OF the deed Judge Richardson spenl
ing for the court uses this language: III
lease was for term OF twenty years, yet looi
ing to its nature and object, il cannot be COZ
tended that the esSceS had the option to Won
or not to work the ore mines for IN indcinil
time and thus convert what was designed
yield Il handsome daily income 10 the lessee
into q mere barren incumbrancc on his land,
cloud on his title, an incubus and manac
which would Cypress him and destroy II
marketable value of his land. No lease of Ian
for u rent. for Il return 10 the landlord out Il
the land that passes. can be construed 10
intended to enable the tenant To hold the len:
for purposes OF speculation, without doingaI
performing in connection Herewith what q
lease contemplated" This language in refe
cnce to the contract in that case which Is
most exactly similar 10 the one here Is Vel
significant as tending TO show what the op
ion OF the Court or Appeals would be of q
legal effect OF Il contract OF this kind when u
question directly arises for decision. II
other cases referred to,whilc dccidingithat II
contracts in question were mere licenses M
hence rcvokable at the option OF the license
are not exactly similar TO this case and do IL
clearly show by what rules or principles wea
to be governed i'll determining whether such
contract constitutes an easement or me
license although they are important rs ten
ing to show the drift OF the courts oplniC
llpon such questions.
In examining the decisions of other courts
find that this question is one that has give
rise to much discussion from the time Of Lo
Coke down TO the present time and has bet
the subject of various cases in other state
The best and clearcSt statement OF the In
that ] have found Is contained IN the case
Mascot Us. Moses decided BY the Suprcn
Court of South Carolina and reported X
American Reports. 6g,.
As clearly shown in that case, whether n co
tract IS lease or license IS 10 be gathert
from construction OF the entire lnstrume
with view to isccrtaning the intent OF u
parties. The chief distinction between u
two is whether the instrument intends 70 We
in the grantee the exclusive possession OF Il
premises or not. II the possession OF Il
rrante,. Is exclusive then the contract is
lease II ii is not exclusive then 1t Will be col
sidcrcd q mere license. And in dctclmn!r
whether the grantee has the exclusive posse
sion or not. while the whole language OF II
deed must be looked 10. the character OF II
consideration 10 be paid is the most importai
test. IL the grantee is to pay an entire 1iXe
sum OF money for the privileges OF mimi
then il is obvious that the parties intende
that the grantee should have the eNclusiN
right 10 the possession Of the premises. whcr'
as II the grantee is only TO pay for the minera
obtained and IS not required 10 get out an
particular quantity then his possession cannC
be construed 10 be intended rs exclusive.
See also on this question Shirly's leadn
cases at c. LIP. 119note where it is said: "Di
iiculties sometimes arise in practice as
whether an instrument creates Il tenant
merely licensee. The test appears 70
whether the intention of The parties Is that III
person let into possession should have the e'
elusive possession or not.
five apply this test 10 the instrument
question in this case, the conclusion must L
that il constituted Il license and not Least
The fact that ii expressly allowed the GRANTED
to assign their interest or that the technic;
word demise" is used makes no difference, o
Is laid down in some OF the cases cited IN Mas
sot Moses above referred 10. And when
look at the circumstances OF the parties an
tIk1 Intention ~ It
OF the entire instrument this conclusion seem
10 he In accord with what is just and right.
The counsel for defendant admits that th
grantee would not have the right to hold IA
lease and do no work under &c for On ur
reasonable length OF time and keep the glanto
ont of the property and pay him no compen
sation therefor, but claims that nine years
not an unreasonable time under the circum
stances OF this case. This admission has TO
made in view OF the obvious injustice OF an
contrary view. but in making il, itseems to III
that il is admitted that the grantees do nc
stand in the position of tcnantS,Strictly speak
ing. If they were tenants they would unques
riOnably have the RICH To the exclusive pos
session of the premises for the full period
twenty years whether they worked the mine
or paid the grantors anything during thu
period or not. Anything less than this col
stitutes them licensees, not tenants. Bu
even IL the view that they were entitled
hold the property fora reasonable time Will
out paying anything to the g,lntor thereto
We're the correct one (and ind no law II
such view, yet ii seems 70 me absurd to. sa
that nine years is not IN unreasonable time
have held the property without doing anythin
towards accomplishing the object for whic
the agreement was made.
1t seems TO me that the true intention OF III
parties was to give the grantees permission
license at any time within twenfy years
enter upon the lands and mine them upo
their paying the grantor one-fourth OF the pre-
fits arising from any sales made but that
any time before they entered and begun wor
the grantor had the right to revoke the licens
for which he had received nothing and Will
he would do no injustice TO the grantees. Tn
grantee here has never taken possession OF tn
property and never taken any minerals froI
the soil and il seems to me TO be clear tina
the license is still cxecutory and the license
has the right to revoke it and this being IN
case it seems to me that he is entitled TO hay
the cloud removed from his title by deere
setting aside and annulling the pretended leas
und er which the defendant claims. As counso
for the Virginia Development Company waiy
notice of this suit on behalf OF that compan
it is not necessary to bring it before the coul
by formal process.
a Popular lady Dead.