Troxell v. Anderson Coal Mining Co.

Citations

• 213 Pa. 475
• 62 A. 1083
• 1906 Pa. LEXIS 510

Syllabus

<p>Mines and mining — Royalties—Minimum royalty — Faults in strata — Lease • — Review.</p> <p>Where a coal lease provides for the mining of a stated number of tons of coal per year, and the payment of royalty thereon whether the coal is mined or not “unless prevented by faults in the strata unforeseen,” the lessor will not be prevented from recovering the minimum royalties for the first year, because the lessee in attempting to reach the coal from an adjoining mine was prevented from doing so by faults in the strata of such mine. In such a ease if it appears that at the time of the trial, which was after the termination of the first year of the lease, the coal had been reached without difficulty by an opening on the leased premises, it is reversible error for the court to refuse to charge that the lessee had not made the effort to mine the coal in the first year, whiqh was required by the terms of the contract. The lessor cannot bo charged with having acquiesced in the claim made by the lessee, that the unavailing effort to reach the coal from the adjoining mine was a sufficient compliance with the terms of the lease; and the rule does not apply that “When a case is submitted to the jury from a standpoint from which both parties to the issue manifestly tried it, the court cannot be said to have erred because it was not submitted from another, which may really have been the true one.”</p> <p>Appeals — Review—Assignments of error.</p> <p>Where no error is assigned to a particular instruction of the trial court, the appellant cannot, in anticipation of a reversal, ask the appellate court to pass upon the correctness of such instruction for the guidance of the court below on a retrial of the case. The appellate court does not sit as an advisory board for lower courts, but to correct errors brought up by proper assignments.</p>