October 5, 2012

Mullins v. Dees, Rockcastle, 1910



124 S.W. 828; 1910 Ky. LEXIS 672

February 1, 1910, Decided


Appeal from Circuit Court, Rockcastle County.

Action by P. M. Dees against Cal. Mullins. Judgment for plaintiff, and defendant appeals.


COUNSEL: C. C. Williams, for appellant.

L. W. Bethurum, for appellee.




 [*829]  HOBSON, J. P. M. Dees executed to Cal. Mullins the following lease: "December 3, 1907. Livingston, Kentucky. Article of agreement made and entered into between P. M. Dees, of the first part, and Cal Mullins, of the second part; P. M. Dees, of the first part, does this day lease the coal on the farm known as the Sambrook land that said Dees bought of the heirs. Said Mullins is to pay the said Dees one cent royalty for same and said Mullins is to go to work at once and this contract is to hold for ten years from date, unless said Mullins fails to work from his own negligence, for which this contract shall be annulled and void." On December 2, 1908, Dees brought this action against Mullins to cancel the lease, charging in effect that he had neglected to operate the mine continuously; that he had refused to pay the royalty, and that he was operating the mine in such a way as to destroy it; that he was pulling out the props which supported the roof, and drawing the ribs to such an extent as to render the mine useless. Mullins answered the petition, denying its allegations; proof was taken, and on final hearing the court granted the plaintiff the relief sought. Mullins appeals.

The proof in the case shows conclusively that Mullins was operating the mine in such a way as to ruin it. He had taken out no coal from the mine except that which he obtained by drawing the ribs or supports between the rooms of the mine. He had begun at the back of the mine, and was doing what is called taking out the stumps; that is, he was taking out the pillows that had been left between the rooms to hold the roof up; and when he had done this, there would be not enough to hold up the roof; the result being that the slate overhead would come down, rendering it impossible to work the mine any further, and also causing the surface of the ground above to settle and crack, thus injuring it. The work which Mullins had done is shown, not only by the witnesses introduced on behalf of the plaintiff, but there is little contradiction in the evidence. The testimony for Mullins, when read carefully, substantiates the testimony taken for the plaintiff. Section 2328, Ky. St. (Russell's St. § 291), provides: "If any tenant for life or years shall commit waste during his estate or term, of anything belonging to the tenement so held, without special license, in writing, so to do, he shall be subject to an action of waste, shall lose the thing wasted, and pay treble the amount at which the waste shall be assessed." Mullins was a tenant for years; he had plainly committed waste. The thing wasted was the mine. The course he was pursuing would soon render it absolutely useless. He was not using the mine in the way contemplated by his lease, but was simply misusing and destroying the property.

Judgment affirmed.

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