318 "1,
.. ,FEDERAL REl'OB'.DER,
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Attgullta will donateJo rour company 3 acres of: laud; to be selected Jby 1.tr on its property : oppoSMle Augustar ihdhvinpromptlY'build; or caUSe to be built;: to ·the laildso doriated, a side, traek, 'and wlieIJ!'.your factory is commeuccessful[operation, ,:will buy! from you $2,500 of ypPX ,sto\ll{at itl;l,Plll:;value, when your factory is in successful ovel'atl.on,as, aforesaid. The above is conditioned' upon your begtnIiing' "'otilt at onee."', Held, that the completion of the factory was nota) oondltton precedmtt to the buildl.ng of the side track, and that parol that effect should not be admitWd. 2. Sl'EOIFI() f'JlIJ.f,!l'OJUI'ANCE......REQUISITES QFTHE ,CONTRACT.
l10Plpany the land'and subsequently f\.Cquirecl a right of )i\e side 'track. The wll.sbuUt, bUt its machinery prove6.. bUi1ll.elent, and was run from time to time merely to dIscover defects allillimllkeneoessary!improvements. Held, that specUic performance of OQlltr/lct to build, t)1!'l side t11Lck' r;hould be enforced. PERFORHANCE-DAMA,GES. "
8; CONTR4,QTSt+-M.ATTERS
tor delay1Jl. ouil<ling the side track should uQtbe awarded for the the tana company dtd ndt own the right of way, it having used evf!rY effort to acquire, it. '
, In Equity. Bill by the,Southern Pine Fibre Company against the North Auguste. Land QQmpany for ,the Elpecifiaperformance' of a contract. A demurrer to ,the bill was ,overruled. 50 Fed. 'Rep. 26. The ca.se is now on flnalhearing. Decree for complainant. ,Fleming & Alexander,. tor complainant. , 9Uve, JUdge. This case has already been heard on demurrert\) the roll. 50 Fed. Rep. 26. The demllfl'er was overruled, and, the answer having been :filed, the cause comes up on full hear· ing. a location fora factory, and for that purpose its!}lresident vi$itetl several ,of the southerniiltate81. Finally, he met, in Mr. Fatrick Calhoun, president of the North Augusta Land Company; This company was the owner of a body of land opposite the city of Augusta, which they wished to de· velop.At "the instance of Mr. Calhoun, the president of the complainant visited the tract of the land, company, found it in many respects suitable for his purposes, and opened negotiations fora site. The only objection to it was its distance, from a railroad. After correspondence and interviews in which the views of each party were made known, .a proposal was forn:1ulated by the land: shapeoUhe following letter: "New York, June 20th; 1891. "J. B. N. Beri:y, Esqr., Presdt. Southern FIbre Co.-Dear Sir: The North Augul-lta Land Company will donate to your comp:my 3 of land, to be selected by it, on its prope-rty opposite the city of Augusta, and will promptly build, or cause to be built, to the land so donated, a side track; and when your factory is completed, and machinel'Y in snccessful operation, will buy
SOUTHERN PINE FIBRE CO.
NORTH AUGUSTA LAND CO.
319
from you ($2,500) twenty :fI.v.e hundred dollars' worth of your treasury f>1:ock at var value, Wht'll your factory is in successful operation, as aforesaid. "Yours,. trUly, . .. . Pat Calhoun, Presdt. "Tlie above is conditioned upon your beginning work at once. P.O."
'ts
This proposal was accepted. Contracts for building the factory were given out. Its construction began at the end of June 01. the first part of July. It was finished, and machinery all put in, some time in ,November or December of that year. The machinery did not prove to be efficient; and it was run from time tQ time in order to discover defects, and to make such improvements as showed themsalv.es necessary. It is not yet in complete condition. The presi. dent of thtfcompany is confident that success will attend his efforts. His difficulty is not in the patents for his processes, but in adapting the machinery to them. It is manifest that the· complainant companyin good faith is using every effort to put the enterprise in successful . operation. The $2,500 of treasury stock has never .been :tendered, by complainant to defendant. On the other hand, the land company donated the three acres salectedby the fibre company, and has executed to the latter company a conveyance in fee simple without any condition, qualification, or defeasance whatsoever, accompanied by a warranty of title against itself and its successors "and against every person whomsoever." The lot selected lies between two lines of. railroad. The right of way over the lands between the site of the factory and a railroad was not controlled by the defendant company, in whom the right of eminent domain did not exist at the date of the contract or of the filing of the bill, or at the filing of the answer. It has, however, purchased and now is in possession of the right of way. The bill prays specific performance of the uncompleted part of the . contract,-building the side track,-and damages for the failure thus far to complete it. 1:'he position taken in the answer is this: The defendant was induced to· enter into this by representations of the plaintiff that it owned patents and machinery for the manufacture of a valuable article of commerce, and that it would pnt these in active and successful operation on such land as defendant would donate to it; that relying on this, and wholly induced by this, defendant signed the contract, the condition precedent being that it was not to be bound by any of its term/:! until the defendant hall erected, established, and put in successful operation its factory thereon. The only evidence before the court of the contract between the parties is the letter of Mr. Calhoun, above quoted, and th"l fact that it was accepted by the complainant, and that the condition in the postscript was performed. The reduction into writing of the proposition of plaintiff excludes all eyidence of antecedent conversations and understandings, except, perhaps, to explain some latent ambiguity, if any existed. \Ve look, therefore, to this written instrument as containing the intent of the parties. It contains three propositions on the pat1i of the land company: (1) To donate to the fibre company three acres of land, to be selected by the fibre company, on the property of the land company opposite the city of Augusta; (2) to promptly build, or cause to be built, to. the land so
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;whettthefact<n'Y is 'completed, and ip.sp:ccessful operation, to buy from the .c,«:)mpany $2,500, worthOfits at par, payable when the factory is in successful operation. So far there is no quaJification. or conditibnannexed to the first two propositions. :Thepostseript adds' the' cOndition, "The' above'isoonditioned upon your. . beginning work at i notoompleting and p.uttmg into sueoossful 'operation. This is the contract. When it was made, the Its expression excludes the idea of another condition. Indeed; it iscleal' that both parties entertained the same idea thattJ there was to be put upon the land a factory, and ,that the fact()1y[wa.s to be put in operation successfully. The contract was intended ,to contribute," to that end. To reach this end the land for .asitemust first be selected and obtained. The factory must' be,evected. Facility,. of reaching market must be afforded it. Then the-adventure would be equipped for sucOOSIllfulexperiment. We see that the land was donated, and after a short delay, caused in no way by any reluctance or hesitation or doubt on the part of the land company, but by the engrossing bmdness engagements of the president, the deed of conveyance was executed in' the most solemn form, without or defeasance and with warranty. The sidetrack was not built; but the delay was explained by the president of the land company, and its early construction promised. for a day anterior to the completion ,of the factory, long before it could be ascertained whether it could or could not· be put in successful operation. Surely the successful operation of the factory could not have been intended to be a condition precedent to the performance by the land company of the first two propositions in Mr. CaJhoun's letter. The ,real' meaning of this contract and the postscript condition is this: "If you begin the work at once, the land company will donate you ,such three acres of land as you select, and will promptly build, or cause to be built, to the land so donated, aside track." "Promptly;" that is, at an early day thereafter; that is to say, "after your selection and our donation. of the land." when the factory is completed and machinery in successful Qperation."".And when" indicates an event to happen in the future; that is, after the occurrences provided for in the preceding sentences. "And [that is to say,. in addition to the above] when your factory," etc.,-aconditionnot heretofore expressed, and confined by its location and language to the proposition in which it is contained, ''We will buy $2,500 worth of stock at pal'." The complainant is entitled to a decree for specific performance of this part of the contract;-the building of the side track. This conclusion has been reached in the absence of all evidence of fraud or of mala fides upon the Pal't of the complainant; and it is without prejudice to any right which the defendant may have in case the complainant fail to put in operation a factory on the land conveyed to it, or should cease to use the land for the purposes of a factory. :No opinion is e:s:pressed on these points. The bill prays damages for the nonperformance of this part of the oontract. It puts damages for tl;J.e to construct the side track
RICO-ASPEN CONSOLIDATED MIN · CO. V. ENTEnPRISE MIN. 00.
321
while the'faetory was in process of erection, and another set of damages since its completion. There is no evidence whatever that any damages were caused by the absence of the side track during the erection of the building. There is an item of transportation of the boiler, and with this are items for transportation of coal and of 278 tons of fibre. There is, of course, no evidence of damage to the busi· ness of the factory since its completion, for it is not yet completed, and has done no business. Considering the whole case, there is no' ground for granting damages in this court. The delay in constructing the side track was not caused by any willful act on the part of the defendant, but from its inability to do so. It did not own the right of way, and had no means of condemning it or compelling its sale. During the whole time it was earnestly endeavoring to get it, and finally, after much "effort, has succeeded. Without this successful effort a decree for specific performance would scarcely have been made. The case came on to be heard on bill, answer, and testimony taken in open court. Hearing the same, and on due consideration thereof, it is ordered, adjudged, and decreed that the defendant, the North Augusta Land Company, do, within 40 days from the date of this decree, specifically perform its contract with the complainant of building a side track to the land donated and conveyed by defendant to plaintiff on the property of plaintiff opposite the city of Augusta, by beginning the construction thereof, and by completing the same within a reasonable time thereafter; the complainant to have ]e,ave at the foot of tllli; decree to apply for any order which may become necessary. Further, let defendant pay the costs of these proceedings.
RICO-ASPEN CONSOI.IDATED :MIN. CO. et al. v. ENTERPRISE MIN. CO.
(Circuit Court, D. Colorado.
December 22, 1892.)
Nos. 2,827, 2,829,2,838. ,L MiNES AND MINING-TUNN'EL LOOATIONS-LoCAI, REGUI,ATIONS.
The location of a mining tunnel under Rev. St. § 2323, does not entitle the locator to the full length of a suL'face location (1,500 feet) on any vein or lode discovered on the line of the nronel, but leaves the length of such location to be determined' by the local laws or regulations; and in Colorauo such length is fixed by Act 1861, § 5, (1st Bess. 166,) at 250 feet each way from the tunnel. Tunnel Co. v. Pell, 4 Colo. 507, distinguished. A miner who discovers a lode or vein while driving a tunnel, under the provisions of Rev. St. § 2323, must mark the boundaries of his claim on the surface, and tne his certificate of IVf'ation, but the discovery in the tunnel for the usual work, such as a shaft, adit, or other opening; and the date of SUCh location on the surface will be carried back to the date of locating the tunnel, alld will thus shut out intermedi:ite surface locations by others.
2.
SAME-MARKING ON SURFACE-DATE OF TUNNEL LOCATIONS.
InEquity. Bills by the Rico-Aspen Consolidated Mining Company and others against the Enterprise Mining Company. Injunctionl!l pendente lite granted, and final decree for complainants in respect W v.53F.no.3-·21