The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1891-08-06
CoOSAw LOSES THE CASE.
Chief Justice Fuller Decides in Favor OF
the State-Judge Simonton Concurs.
ISnos.;al 10 The State.

this afternoon. The decision, as will be
seen, is a complete Knockout for the
"Coosaw octopus" and signal victory
for the State. The following is the de-
cision in full:
STATE OF SOUTH CAROLINA, eX rel,
TILLMAN ct. al. VS.. The COosAW
MINING COMPANY.
Two motions have been argued:
l. To remand.
,. To continue the order granting a
preliminary injunction anG appointing
a receiver.
My conclusions are:
l. That upon the face of this record
the motion to remand ought not to be
entertained. The question Of jurisdic-
| ton was adjudicated by this court on
the 2!st of April, 1891, and cannot be
re-examined at this stage Of the pro-
ceedings. But if the question were
open the result would be the same, rs l
concur in the opinion of the district
Judge, filed here on April p, 1891. (4o
! Fed. Rep, S04.) The motion to renIand
! is therefore overruled.
=. AS TO the motion to continue, &C.,
| the contention of the defendant is that
it has, by contract with the State, IN viz
| tue of the act OF 1875, the exclusive right
| to mine all the phosphate rock with
in defined part OF the CoosaW River,
for all time, at royal'y of one dollar
per ton. The defendant carried on its
mining operations prior to 1876, in the
particular locality, under an act of 1870,
which gave the right to mine for the
full term of twenty-one years at 81 per
ton. The act of 1876 made the right
exclusive, and it is argued, perpetual,
because it Was provided that defendant
las we'll as other companies) should
have the right, 80 long and no longer"
than it should make the returns and
pay the royalty prescribed. The royalty
thus referred to was fixed by the act OF
1870. It was decided in State vs.. Pacific
Guano Company 90 S. c. 50,) that the
rule of construction applicable to the
right to mine in the beds of navigable
/ streams containing phosphate deposits
is the ordinary one in the instance OF
grants of public rights, namely, that
the grant is to be construed strictly IN
favor of the State and against the
grantee. I concur in that view, and
applying the rule here, it forbids the
conclusion that the legislature in
tended an indefinite grant by the terms
I used. The act of 1876 must necessarily
be read in connection with that Of 1870,
and this being done, it seems clear that
the duration of the exclusive right, as
claimed, was not thereby enlarged.
This conclusion is strengthened by an
examination ofthe many acts in rela-
tions to phosphate mining referred to
on the hearing of this motion, which
show the policy of the State to have
been to limit the duration Of the right
to mine-a policy which it cannot be
properly held the State intended to
depart from by the Act of 1876. 1t
| follows that the claim of the defendant
to the exclusive right to mine within
the mentioned territory, indefinitely,
at one dollar per ton, cannot be sus-
tanned.
3. This being so, and in view OF the
provisions of the Act of 1880, an nJunc-
ton ought to 60 against the defendant,
restrainlngit as prayed, until it shall
take out license under the latter Act
and otherwise comply Herewith, and
such an order may be substituted tor
the order made by the State court,
which should be vacated, so far as is
inconsistent with the order so entered.
4. Pending the filing of the foregoing
memorandum and the entry Of the
order therein agreed to, the parties
having agreed to submit the case on
tthe- hearing already had, as on the
merits, and their. stipulation that
behalf having been duly considered, a
| final Judgment and decree may be en-
! tered in accordance with the result
above indicated.
| MELVILLE w. FULLER,
! August 8, 1891. Chief Justice.
JUDGE sIMoNToN's CONCURRENCE.
SimonGon, j., concurring:
| The acts of 1870 and 1876 must be
construed in pari maturid. Under the
first act the State gave the grantees, fol
twenty-one years, the right to mine IN
| it's navigable streams. This grant was
upon the condition that the grantees
should pay annually 81 a ton on each
| ton dug and mined, and that they
| should make a return of their opera
tions annually, or oftener If required
This was not an exclusive right,
bradley vs.. The Phosphate Co., l
Hughes.) 1t was upon condition, that
is to say, it existed so long and nc
longer than the conditions were tul'
filled. The act of 1875 proposed a
| modification Of this contract in four
| particulars
l. The time for making the returns
was definitely fixed at the end OF each
month. This was an advantage to
both the parties.
2. The royalty was made payable on
each ton dug, mined and shipped, not
on the rock mined. This was IN favor
fthe grantees. ;,
3. The royalty was made payable
quarterly, not annually-thls provision
TO 20 into effect Immediately and the
royalty for the two quarters of the cur
rent year to be paid at once. This was
in favor of the State.
4. The right to mine thereto, If moi
exclusive, was made exclusive upon the
acceptance Of the States proposals.
The original contract was unchanged
in every other respect. The royalty re-
manned the same-$l per ton. The
grant was wholly on condition-tha
is $50 long as and no longer than" the
conditions were fulfilled. The dura
ton of this grant, during which these
conditions were OF force, was .un
changed, twenty-one years from 1870
This is a reasonable construction OF
doubtful act, by which the doubt is re
! solved in favor of the sovereign gran
tor. 1t is a familiar rule of construc
ton that when statute operates as
grant of public property to an indivld
Ual, or the REIMBURSEMENT of publl
meaning of its terms, or as to its gen
eral purposes, that construction Will b
adopted which shall support the CLAIM
of the government rather than that o
the individual. Nothing can be en-
forced against the State" Field, j.
VS.. Slidel, grand juror, III U. 5, l31.
EX-SENATOR SAWYER DEAD.