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Nance v. Donk Bros. Coal & Coke Co.





APPEAL FROM the Circuit Court of Bond County; the Hon. J.E. FLEMING, Judge, presiding. MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 21, 1958.

This case involves the legal sufficiency of a complaint which seeks the construction or reformation of two deeds to adjoining tracts of land in Bond County. The basic question is whether or not the deeds conveyed the underlying oil and gas and the right of access to it through the surface of the land. The circuit court dismissed the complaint on the ground that it did not state a cause of action, and entered a decree for the defendant. The plaintiffs appeal directly to this court. A freehold is involved.

Theodore Rassieur is the grantee in each of the deeds, which are identical except as to the grantors and the description of the land involved. Each deed was on a printed form captioned, "Warranty Deed to Coal and Mining Rights," and each conveyed "All coal and other mineral under the surface of the following described tract of land: * * * together with the right to mine and remove said coal and other mineral and the right to conduct mining operations under the surface of said tract of land therefor, and the right to use all rooms, entries and mining ways at coal depth under the surface of said tract of land as and for mining ways, to and from beds of coal or other mineral in other lands." The words "at coal depth" were interlined with a typewriter in each of the printed deeds.

One of the plaintiffs is Kate B. Nance, who, with her husband, now deceased, executed one of the deeds on June 15, 1907. She alleges that she is the owner of one of the tracts, subject to the rights conveyed to Rassieur. The other plaintiffs are Lee Nance, Thomas Nance, Glenn M. Nance, and their respective wives. They allege that they are the successors in title to Nancy A. Brown, who executed the other deed on September 28, 1907, and that they are the owners of the tract that she conveyed, subject to the rights conveyed to Rassieur. On March 29, 1911, Theodore Rassieur and his wife by quitclaim deed conveyed to the defendant, Donk Brothers Coal & Coke Company, the rights acquired under the two deeds. The quitclaim deed was identical with the other two deeds, except that it omitted the words "at coal depth."

The complaint is in five counts. Counts 1 and 3 are filed on behalf of Kate B. Nance, and counts 2 and 4 on behalf of the other plaintiffs. Count 5 is filed on behalf of all of the plaintiffs. It includes many of the allegations of the earlier counts, and it makes additional allegations. Defendant rightly concedes that although the deeds were executed by different persons, on different dates and related to different tracts of land, the joinder of plaintiffs and of causes of action is proper under section 23 of the Civil Practice Act. (Ill. Rev. Stat. 1957, chap. 110, par. 23.) Defendant contends, however, that count 5 is formally defective because section 33 of the act provides that "Each separate claim or cause of action upon which a separate recovery might be had shall be stated in a separate count * * *." (Ill. Rev. Stat. 1957, chap. 110, par. 33(2).) This contention overlooks the fact that steps were taken at the outset, in the rules adopted by this court when the Civil Practice Act became effective, to prevent the importation into equitable actions of the common-law practice of pleading by counts. To that end Rule 10 expressly provides that a single equitable cause of action "shall be pleaded without being set forth in separate counts and without the use of the term `count;' * * *." (Ill. Rev. Stat. 1957, chap. 110, par. 101.10.) The plaintiffs may have erred under Rule 10 by labeling the divisions of their complaint as "counts." They did not err by failing to divide their count 5 into further counts.

The complaint alleges: The defendant, Donk Brothers Coal & Coke Company, was incorporated in 1899. Theodore Rassieur was one of the five principal shareholders and directors of the company. In the years 1907 to 1911, inclusive, and for some time thereafter, Rassieur and other agents of the company solicited and obtained a large number of options for the purchase of coal rights under lands located in two townships in Bond County, including options covering the two tracts here involved, for the purpose of testing the supply of coal thereunder, and, if the supply was satisfactory, mining and producing the coal therefrom through shafts located on other lands than plaintiffs' property. The company's agents represented to Kate B. Nance and to Nancy A. Brown, and to other land owners in the vicinity, that the company desired to obtain only the ownership of the coal underlying the lands and the right to mine and remove it therefrom by means of underground passageways.

Theodore Rassieur executed a "Notice of Acceptance of Coal Rights Under Option" dated June 6, 1907, and directed to Nancy A. Brown, which stated:

"You are hereby further notified that I accept said coal and mining rights in said lands under and pursuant to the terms of said option, and you will please proceed at once with reference to abstract and deed accordingly.

"In response to your inquiry regarding the phrase `other minerals' it is my intention to buy only the coal and such other minerals as may be mined with coal at coal depth."

As the result of the solicitations and representations of defendant's agents the then owners made their deeds conveying to Rassieur certain coal and mining rights under the lands, and in order to make definite the intention of the parties to the deeds, that no rights to the surface or to anything below coal depth were being conveyed, the words "at coal depth" were interlined in the original deeds.

It is alleged that during the period from 1900 to 1911 and for many years thereafter, the southern half of Illinois, including Bond County, was recognized as one of the great coal mining areas of the United States, and that coal mining was then the predominant industry in this section of the State; that during the same period, the presence of oil and gas in Bond County was unknown, and was not within the contemplation or consciousness of the people of the county, and that oil and gas were not considered to be within the term "mineral" or "minerals," as the terms were then used by them. It is also alleged that the grantors did not intend to sell or the grantees to buy the oil and gas underlying the land, or the right to drill for and recover said oil and gas.

It is next alleged that the deeds to the coal rights were prepared by the grantee and that the form of deed used in the two conveyances here involved was used when the grantee's rights were to be confined to coal depth and were not to include any right to the surface or to anything below coal depth. When it was intended to convey to the coal company the right to use the surface of the land in its mining operations the grantee prepared the deed to contain the words "enter upon the surface of" or words of the same import. The present deeds are alleged to have been intended to convey only such coal or other mineral as could be mined and removed by means of underground ways from shafts on other lands.

In the alternative, it is alleged that when these deeds were executed a custom existed in Bond County whereby the words "coal and other mineral" were used as a protection to the purchaser of coal rights against claims of unlawful taking of other mineral substances while mining coal, and with the intention of transferring to the grantee only such mineral substances as formed a part of, or were found lying with, the coal conveyed, and that the grantors in the two deeds involved here intended to convey, and the grantee to acquire, only the coal and such mineral substances as formed a part of, or were found lying with, the coal in place so sold and acquired under the deeds.

The plaintiffs pray for a decree adjudging that the coal company has no right or title to the oil and gas under the land, no right to drill for or attempt to recover it, and no right to enter upon the surface of the land for any purpose; removing any clouds upon the titles of the plaintiffs resulting from the deeds under which the defendants claim; adjudging that the plaintiffs are the owners of all oil and gas under the land and of the right to explore, drill for and produce said oil and gas; permanently enjoining the defendant and its successors and assigns from asserting any right ...

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