Blair v. Dickinson , 133 W. Va. 38 ( 1949 )

The mandate of this Court reverses the decree of the Circuit Court of Nicholas County entered on the 18th day of February, 1948, and remands the cause to that court "* * * for further proceedings to be had therein according to the principles stated and directions given in the written opinion aforesaid * * *." The opinion referred to directs the circuit court to proceed with the partition or sale of the 11,000-acre tract "free of the alleged lease on a tract of 4700 acres thereof, set up herein;". A lease on the 4700 acres had been drawn to be executed by T. J. Blair, Jr., J. N. Berthy, Jr., John L. Dickinson and their wives, Dickinson had refused to execute, but Blair and Berthy and their wives had executed and delivered the lease to Gauley-Eagle Coal Coke Company and its validity and effect as to their two-thirds interest in the 4700 acres is not under attack by allegation or proof in this proceeding. Consequently I believe that this Court committed error by ordering the main boundary partitioned or sold "free" of the lease in question.

I otherwise disagree with the majority holding because in my opinion upon final submission in the Circuit Court of Nicholas County the controversies involved were based clearly upon issues of fact. This Court does not on principle reverse a lower court on a fact finding matter unless that court is clearly wrong. To the contrary, upon an examination of the complete record in my opinion in this matter the trial court was clearly right.

In order to attempt clarification, an abbreviated statement of the pleadings is necessary.

The bill of complaint filed in the Circuit Court of Nicholas County by T. J. Blair, Jr., and J. N. Berthy, Jr., against John L. Dickinson and Gauley-Eagle Coal Coke Company, after alleging that the plaintiffs and John L. Dickinson owned in fee 11,000 acres in Hamilton District, that county, the derivation of title, out sales and encumbrances, none of which is in contest here, alleges that on the 24th day of October, 1945, the plaintiffs, together with John L. Dickinson, leased to J. N. Berthy, Jr., all the coal above a level of 2250 feet in a tract of 404 acres within the principal boundary; that the lease was reduced to writing and executed by Blair and Berthy and their wives but not by John L. Dickinson, who refused to sign, due to certain technical objections not included in the lease as agreed to by him, Blair and Berthy; that J. N. Berthy transferred the lease in question to Gauley-Eagle Coal Coke Company which has since, in grading roadways and installing machinery and equipment, expended a very large sum of money in preparing to produce and in producing merchantable coal under the terms of its written lease and has paid and continues to pay rents and royalties thereon to John L. Dickinson and to the plaintiffs. The bill of complaint further alleges that in June, 1947, they, together with the defendant, John L. Dickinson, negotiated with Gauley-Eagle Coal Coke Company a lease for coal mining purposes upon approximately 4700 acres of land, the boundary of which includes the 404 acres then under operation by Gauley-Eagle, and that after having reached a verbal agreement upon the terms and conditions of the proposed lease Gauley-Eagle Coal Coke Company, in reliance upon the agreement of lease, entered upon and took possession of the 4700-acre tract, extending its operation beyond the boundaries of the original 404-acre tract leased by it, expending additional large sums of money in the construction of roads, railroad sidings and railroad loading facilities. The bill of complaint further alleges that in the year 1946 the plaintiff, together with the defendant, John L. Dickinson, orally agreed to sell and convey to J. N. Berthy, Jr., or his nominee, 398 acres of surface and coal above the level of 2005 feet, upon which agreement J. N. Berthy, Jr., relied and with which John L. Dickinson has since refused to comply. The bill of complaint prays that the interests and equities of the plaintiffs and John L. Dickinson, together, with Gauley-Eagle Coal Coke Company, be settled and determined, and that the land in question may be equally divided in kind if possible and if not, sold and the proceeds distributed.

Gauley-Eagle Coal Coke Company filed an answer and cross bill alleging that after the execution and assignment of the lease upon the 404-acre tract it had proceeded to expend a large sum of money in grading and constructing all-weather rock roadways, in building a side track and ramp, and in purchasing machinery and equipment; that it had mined and produced a large quantity of coal upon which it had paid royalty to the two plaintiffs and to John L. Dickinson, who had been fully informed concerning the development and the operation of the leasehold by the defendant, Gauley-Eagle, which had received their approval. The cross bill alleges that, after operations were begun on the 404-acre tract, the three owners of the 11,000 acres of coal caused to be laid out and described by metes and bounds a part of their principal boundary containing 4700 acres which acreage embraced and included the 404-acre tract. The cross bill alleges that the 4700-acre tract was located and laid off for the purpose of leasing it to Gauley-Eagle and that in recognition of the fact that more convenient and closer loading facilities would be necessary in the more extensive operations demanded by the larger tract, the owners Blair, Berthy, Dickinson and their wives, on May 8, 1947, conveyed to The Baltimore and Ohio Railroad Company 4.77 acres for the purpose of locating thereon a railroad siding, restricting its use exclusively to the parties of the first part and their successors and assigns. It is alleged that the conduct and promises of the three owners induced and persuaded Gauley-Eagle to expend large sums of money in building a siding, tipple and roadways and otherwise preparing to produce coal from the 4700-acre boundary outside the 404-acre tract. The cross bill alleges further that in the month of June, 1947, Gauley-Eagle negotiated with the three owners a lease upon the 4700-acre tract under the terms and conditions satisfactory to and accepted by them, John L. Dickinson expressly stating to the President of Gauley-Eagle that the terms of the lease were satisfactory to him and that it was unnecessary for Gauley-Eagle to be represented by counsel in further negotiations.

After alleging that John L. Dickinson had wrongfully refused to sign the lease, which was executed and delivered to Gauley-Eagle by both Blair and Berthy and their wives, a copy being attached as an exhibit, the cross bill proceeds to pray that John L. Dickinson be required to specifically perform his agreement to execute that paper and that a partition in kind or by sale that may be accomplished in this proceeding be made, subject to the lease of the described boundary to Gauley-Eagle, or, in the alternative, that the boundary so leased be embraced within the consolidated boundary assigned to Blair and Berthy and that the interest and equities of Gauley-Eagle be otherwise fully protected.

At a special term held January 1, 1948, an order was entered which recites the regular maturing of the cause upon the original bill and the cross bill of Gauley-Eagle, grants leave to the plaintiffs to file without objection an amended bill of complaint, files the answer of John L. Dickinson to the original and amended bills of complaint, his answer to the cross bill of Gauley-Eagle, to which the plaintiffs replied generally, and files his cross bill naming J. R. Maust, Excavators, Inc., Bert Jacobson and Lee Matheney, all of whom appeared, waiving the formal maturity of Dickinson's cross bill as to them, to all of which various joint and separate demurrers were filed. Not passing upon the demurrers submitted, the court, by agreement of counsel, proceeded to take testimony in open court, not completed on that day. The foregoing order was entered nunc pro tunc as of the seventeenth of December, 1947.

Dickinson's answer to the bill of complaint, after admitting its formal allegations, denies the lease of the 404 acres to J. N. Berthy, Jr., alleging in connection therewith his critical illness beginning August 5, 1945, and his absence in Florida from December 3 of that year until early in the following May. It is alleged that on account of its terms he declined to execute, denying that a lease in writing was delivered to Berthy, and also that Gauley-Eagle was placed in possession of the premises described in the bill with Dickinson's consent or acquiescence. The answer goes on to deny that Gauley-Eagle has made valuable improvements and has installed valuable equipment necessary to its mining operations. It alleges, on information and belief, that Gauley-Eagle does not own any equipment or machinery now on the 404 acres; and that the roadway and improvements have been constructed by Excavators, Inc., and Bert Jacobson; it is denied that either Gauley-Eagle or Excavators, Inc., has produced a substantial amount of coal from the 404-acre tract, alleging that coal in the adjoining tracts, known as the Catlett and Groves land, has been hauled and transported over that tract to the railroad; it is admitted that the respondent has received checks in payment of royalty for coal produced from the 404-acre tract, but is alleged that they were accepted accompanied by his statement that he was not bound by the lease, and that later respondent refused to accept checks from J. N. Berthy, Jr., not Gauley-Eagle, because Berthy would not state positively that they were in the payment of royalty for coal produced from the 404-acre tract and no other land owned in part by respondent. The answer further alleges that it is true that during the months of June, July and August, 1947, the complainants and respondent negotiated with Gauley-Eagle Coal Coke Company concerning the terms of a lease proposed to be executed to that company on the southern boundary of the main tract. It is denied that Gauley-Eagle, in reliance upon any lease agreement by respondent, extended its mining operations beyond the 404 acres and expended additional large sums of money thereby. It is alleged that respondent cautioned Gauley-Eagle to suspend said work. Respondent is advised and believes that Gauley-Eagle, Bert Jacobson, and Excavators, Inc., wrongfully and willfully mined coal beyond the boundaries of the 404-acre tract. The answer denies the agreement to sell to J. N. Berthy coal above the 2005-foot elevation in the 398 acres, stating that at that time that boundary was under litigation in a proceeding brought by John H. Hoffstot seeking specific performance of an agreement to convey to him the named boundary, J. N. Berthy having refused to agree to convey to Hoffstot because the agreement did not include the reservation of a right of way on Laurel Creek, the answer alleging that Blair and Dickinson had offered to convey to Berthy the 398 acres at the same price that was contended for by Hoffstot, provided that he, Berthy, would finance the Hoffstot litigation and would place in escrow the purchase price accompanied by a deed, both to be delivered if Hoffstot failed in his contention, the case then being upon appeal and to be submitted at Charlotte, North Carolina, in the 1948 January term. The answer alleges that the only part of the entire boundary prospected for coal is the 404-acre tract, the 398-acre tract, and land lying along the west bank of Laurel Creek, that only the southern part of the 11,000 acres is served by a railroad, and that consequently the entire boundary is not susceptible of partition in kind, even subject to the outcome of the Hoffstot case. The respondent therefore prays that the tract may be ordered sold and the proceeds equitably distributed among the three owners.

Dickinson's answer to the cross bill of Gauley-Eagle, after denying that he executed or approved the lease to Berthy of the 404 acres and at any time assented and agreed to the assignment thereof by Berthy to Gauley-Eagle, denies that Gauley-Eagle has expended large sums of money in providing road transportation, a railroad siding, ramp and loading facilities, or has been begun and since continued large scale operating for coal upon the land in question. It is alleged that Gauley-Eagle does not own any of the equipment or machinery on the 404 acres; that it is owned and the roads were constructed by Excavators, Inc., and Bert Jacobson. Respondent denies knowledge of the various transactions between Berthy and Gauley-Eagle and Excavators, Inc., and denies that he has ever approved of the conduct thereof. It is denied that Dickinson, his agents or engineers have inspected and approved the operations of Berthy, Gauley-Eagle and Excavators, Inc., on the land and denies that he has ever agreed to lease to J. N. Berthy, Jr.; admits that he has received certain checks representing tonnage royalties for coal produced from the 404 acres, but that he has always done so without waiving his right to have the terms of the lease made satisfactory to him; that strip mining operations were suspended February 18, 1947, and that respondent has accepted no checks from Berthy since that time. The answer denies that the respondent, Blair and Berthy caused the 4700 acres to be laid off; denies that the owners conveyed to The Baltimore and Ohio Railroad Company land for a railroad siding for the service of the 4700-acre tract to be operated by Gauley-Eagle. It does not allege for what use the siding was to be constructed. It is denied that respondent had promised a lease which induced Gauley-Eagle, at tremendous expense, to construct a railroad siding and to purchase and construct thereon a coal tipple with all necessary equipment and to construct a stone based all-weather roadway in connection with that service. It is denied that respondent has negotiated with Gauley-Eagle, together with Blair and Berthy, a lease upon terms represented by the owner to Gauley-Eagle to be satisfactory to them. Respondent expressly denies his statement in the June negotiations that they had reached an agreement and alleges that he has at no time agreed upon the terms and provisions of the coal mining lease to Gauley-Eagle. It is alleged, on information and belief, that Blair and Berthy and their respective wives did not execute and deliver to Gauley-Eagle a lease in the form of a copy filed with the answer of Gauley-Eagle. After praying discovery in answer to four queries largely evidential, the answer prays that the lease dated June 21, 1947, upon the 4700-acre boundary and that dated October 24, 1945, upon the 404-acre tract, may be held void and of no effect.

The cross bill of John L. Dickinson against the plaintiffs, T. J. Blair, Jr., and J. N. Berthy, Jr., and against Gauley-Eagle Coal Coke Company, J. R. Maust, Excavators, Inc., a corporation, Bert Jacobson and Lee Matheney, after alleging that the purpose of the proceeding is to procure partition of the 11,000-acre boundary, confirmation of the lease of October 24, 1945, upon the 404-acre tract, to procure specific performance of the alleged oral lease by Dickinson of the 4700-acre tract, and of the agreement to convey to Berthy the 398-acre tract, complains that J. N. Berthy, Jr., Gauley-Eagle, J. R. Maust, Excavators, Inc., Bert Jacobson and Lee Matheney have unlawfully mined and removed coal and timber from the said tract of 11,000 acres. Dickinson's illness commencing August 5, 1945, his trip to Florida, and his return in early May, 1946, are alleged, coupled with the fact that upon his return the lease of the 404-acre tract to Berthy was submitted to him for approval and execution, which he declined due to his disagreement with its terms. His subsequent receipt of royalty checks, with the denial that the 404 acres were under lease from him, is admitted, and his subsequent refusal to accept royalty checks, unaccompanied by a statement in writing to the effect that the coal removed was from the 404-acre tract and not from another part of the 4700-acre tract, is asserted. It is alleged that in December, 1946, complainant learned for the first time that Gauley-Eagle was conducting a strip mining operation upon the 404-acre tract under a purported assignment from Berthy to which complainant had not consented, the nonassignability provision being absent from the written lease submitted to complainant for execution being one of the reasons that he had refused to become a party thereto. It is alleged that the actual operations upon the 404-acre tract were conducted by Excavators, Inc., and Bert Jacobson, the president of that company, upon agreement with Gauley-Eagle and J. R. Maust at an agreed price per ton to be paid by Gauley-Eagle. It is alleged that from February 18, 1947, operations on the 404-acre tract were suspended and not resumed for five months, during which period coal was unlawfully transported across the 404-acre tract from the Catlett and Groves land without the consent of complainant. It is alleged that Maust, Gauley-Eagle, Excavators, Inc., and Jacobson have unlawfully removed coal from certain parts of the 11,000-acre tract not within the boundary of the 404-acre tract covered by the alleged lease to J. N. Berthy, Jr., without the knowledge and consent of Dickinson, and that they now are indebted to Dickinson for one-third of the market value of the quantity of coal thus removed. It is alleged further that Berthy has caused a large amount of timber to be so removed under an arrangement with Lee Matheney to which complainant has not consented, but that Berthy and Matheney are indebted to complainant for one-third of the market value thereof. It is alleged that complainant first learned of operations within the 4700 acres outside the 404-acre tract during the negotiations between complainant, Berthy and Blair, as landowners, and Gauley-Eagle as prospective lessee, for a lease on the 4700-acre boundary; that complainant thereupon advised Maust that he had not consented to said operations, and that Maust and Gauley-Eagle and any one conducting that sort of operation had no right to do so. It is further alleged that on June 20, 1947, during the course of such negotiation, complainant's representative learned that such operations were continuing and again notified Maust that those conducting them were doing so at their own risk and, in the absence of an agreement being consummated, would be held liable therefor. It is alleged that the cutting of timber and removal of coal is continuing in spite of frequent admonitions and notices to cease. After alleging that Maust is President of Gauley-Eagle and Jacobson the President of Excavators, Inc., the companies being subject to their exclusive management and control and therefore that the unlawful conduct of those two companies is in fact the willful conduct of their presidents, appropriate injunctions are prayed for, together with discovery and relief for the unknown damage resulting to complainant from the unlawful removal of coal and timber; that the alleged lease, dated October 24, 1945, purported assignment thereof by Berthy to Gauley-Eagle, as well as the purported lease to Gauley-Eagle dated June 21, 1947, may be held void and of no effect. Note that this cross bill prays that the lease to Gauley-Eagle be held absolutely void and not void alone as to the Dickinson interests. There are no allegations to sustain this prayer. The prayer concludes by asking a reference to a commissioner in chancery for the purpose of settling several accounts alleged.

It will be seen from the foregoing resume of the pleadings, which omits the unlimited number of exhibits in the form of leases, maps, conveyances and letters, that the ground work upon which this cause turns is a rather complicated and, in certain instances, a self-contradictory issue of fact, all turning upon an inter partes controversy concerning the title and rights, including equities, sought to be partitioned as parts of the same parent title, partition of which is prayed.

In order to determine the existing relationship between the three owners it is necessary to amplify the statement of facts contained in the majority opinion. Before December, 1944, the 11,000-acre tract, subject to the usual exceptions in boundaries of that size, which are of no consequence here, was owned by Muddlety Coal Land Company. That company existed for the primary purpose of owning in fee simple and leasing coal land. The ownership of its stock was equally divided among Blair, Berthy and Dickinson. It had leased several small boundaries for coal mining purposes. Any two of the three stockholders had absolute control of its affairs. At that time Dickinson asked Blair and Berthy to consent to having the land conveyed to the three as individuals in like proportion to their stock ownership and to surrender the corporation's charter, advancing his, Dickinson's, tax difficulties as a reason. This was done evidently with the notion that the individuals would carry on their business for the same purpose and in the same manner as had the corporation.

Immediately after the transfer took place the owners manifested their desire to have their land developed by more substantial operations, John L. Dickinson taking the lead. Two or three negotiations undertaken by Dickinson in behalf of himself and the other two owners came to naught. Berthy then stepped into the picture and he testifies without contradiction that he had Dickinson's express authority to represent his interest in effecting a lease.

The statement in the majority opinion that Berthy claimed no right to represent his co-owners in the leasing of the 4700-acre tract is a clear mistake. Both Berthy and Maust testified categorically to that effect and Blair certainly confirmed it in executing the lease to Gauley-Eagle. Berthy took in his own name a lease on 404 acres lying within the boundary of the 4700 acres in controversy. This lease, like the lease on the 4700 acres in controversy, was executed and delivered by Blair, Berthy and their wives, but not by Dickinson. Berthy verbally assigned the lease in question to Gauley-Eagle which employed Excavators, Inc., to strip mine the coal on a tonnage basis. Royalties were paid to Blair, Berthy and Dickinson, the latter by his acceptance being estopped to deny the validity of the lease in writing which had been submitted to him for his approval. These royalties were knowingly paid by Gauley-Eagle to Berthy, he transmitting their shares to Blair and Dickinson.

The business of Gauley-Eagle apparently was quite successful because at the instance of Berthy, J. R. Maust, its president, began to expand his boundary and his operations. Maust testifies that with this in view the owners had laid out in the explored and acceptable section of the 11,000 acres a 4700-acre tract of which his company was the sole prospective lessee, with Berthy authorized to act for the owners.

In the late fall of 1946 and in the early spring of 1947 Gauley-Eagle began to extend its roadways and works beyond the boundaries of the 404-acre tract. Dickinson and his representatives were on the ground several times with the opportunity to observe this expansion. In the meantime Maust had negotiated with The Baltimore and Ohio Railroad Company, owners and operators of Strouds Creek Muddlety Railroad Company, for a siding to serve his enlarged works upon the 4700-acre tract. This was done with the knowledge of the three owners so that on May 8, 1947, Blair, Berthy, Dickinson and their wives conveyed a strip of land to the railroad company for the purpose of building a siding and permitting in part construction of a tipple and a siding. This siding was to be constructed for the sole use and benefit of the grantors, their heirs, successors and assigns. Immediately after this conveyance, the railroad commenced the construction of the siding. Gauley-Eagle prepared to move a steel tipple and did move and construct one at considerable expense upon the site in question. It contended that in the construction of roadways, grading, procuring equipment, and moving the steel tipple, Gauley-Eagle expended not less than $125,000.00, partly done with the personal knowledge of John L. Dickinson and all of it with his constructive knowledge, if, as Berthy testified, he was in fact authorized to represent Dickinson. That, viewing the testimony, as this Court should, favorably to the finding of fact by the trial tribunal, is the situation in the rough. The negotiations for a lease in writing began at the insistence of Gauley-Eagle in the late fall of 1946 and ended in June of 1947.

On June 6, 1947, in a meeting at the office of John L. Dickinson on the mezzanine floor of the Kanawha Valley Building, after having selected one of two leases prepared by different counsel and having agreed to alter that draft as to the payment of minimum royalty and four other matters that were minor, Dickinson stated: "We have an agreement here." Berthy, Blair and Maust agreed. Maust, the President of Gauley-Eagle, who left this conference believing that the terms of a lease had been approved by the three owners and that a writing would be so executed and delivered, returned to the operation and continued expenditures of substantial sums of money by Gauley-Eagle under that lease.

After the meeting of June 6, John L. Dickinson attended no further meetings. This, according to his contention, was not because an agreement upon all of the material terms of a lease had been arrived at, but due to the advice of his physician. His brother, C. C. Dickinson, appeared for him. C. C. Dickinson states that he discussed with his brother the question of whether a complete agreement upon all of the material terms had been reached at the meeting of June 6, and was assured that it had not. He states further that at the meeting he first attended on June 18 he raised that question at the outset, telling Maust that if he, Maust, took the position that an agreement had been reached, the meeting about to be held would be called off. C. C. Dickinson says that Maust reluctantly admitted that no agreement had been reached. All of this Maust expressly denies. With contradictory statements under oath, the one supporting and the other undermining the decree of the trial court, this Court is required to accept as true the supporting statement.

In my opinion the complainants and Gauley-Eagle have clearly established their right to have the 11,000-acre tract partitioned subject to the lease to Gauley-Eagle of the 4700-acre boundary which was occupied and improved at substantial expense after a verbal lease thereof subsequently to be reduced to writing had been entered into with the owners. John L. Dickinson should be required to execute the lease of June 21, 1947. Any equity Berthy may have in the 404-acre tract may be provided for. I do not believe that he has shown a right to the 398-acre tract beyond his one-third undivided ownership thereof.

In my opinion the development of this proceeding would sustain a finding that T. J. Blair, Jr., J. N. Berthy, Jr., and John L. Dickinson were partners engaged in the business of acquiring and selling or leasing coal lands or, if not, certainly that they were together engaged in a joint adventure for the purpose of carrying out a single transaction, i.e., the leasing of 4700 acres of coal land to Gauley-Eagle Coal Coke Company. In either case as to third persons all three would be bound by the act of one in the course of and within the scope of the intended business. Here we have two of the three persons concerned executing a coal lease to Gauley-Eagle.

It is clear and without contradiction that the original purpose of their ownership of the 11,000-acre tract was to own and lease coal lands, real estate and personal property. That was the object of forming the West Virginia corporation known as Muddlety Coal Land Company. That purpose was never abandoned by the three owners, although at the behest of John L. Dickinson, the ownership of the land was transferred to the three individuals by the corporation not for the purpose of their ceasing to engage in the same business but to carry it on as individuals in lieu of in the name of a corporate entity. In fact the business of the corporation was continued without deviation. J. N. Berthy, Jr., continued to be their field representative and John L. Dickinson continued to handle the routine office affairs. Rentals seemed to have been paid to each individual and each individual contributed to the payment of taxes and other running expenses. Admittedly Dickinson acting alone failed in more than one undertaking to lease all or a part of the property. They did have small parcels leased to operators and also surface tracts to farmers. This all occurred before the illness of John L. Dickinson in August, 1945.

With the foregoing as its background the lease of the 4700 acres was by no means the first but easily the most important transaction that the three owners, either acting by and through a corporation or as individuals, engaged in together. Viewing that transaction alone and their other transactions as mere casual incidents, it may be said that they were acting as joint adventurers, if not, certainly as copartners. 30 Am. Jur. 684.

For the foregoing reasons I would affirm the decree of the Circuit Court of Nicholas County.

FOX, JUDGE, Replying for the Majority:

The dissenting opinion filed herein by Judge Kenna affords us an opportunity to explain the intended meaning of certain language of the majority opinion appearing in the last two paragraphs of that opinion, the effect of which was to require a partition of the 11,000 acres of land involved, free of the alleged lease on 4,700 acres thereof, which we held had never been executed or agreed to by John L. Dickinson. Our position was, and is, that if Dickinson did not make or agree to execute a lease on his one-third interest in the 11,000 acres, then certainly a partition thereof should be made without regard to the lease agreed to by Blair and Berthy as to their interests. Dickinson, as we held, not having agreed to or executed a lease on his share of the 11,000 acres, was not in any way affected by the lease on the 4,700 acres thereof which Blair and Brethy executed, and was entitled to have his share therein assigned to him as though Blair and Berthy had not entered into the lease they executed. This procedure, it seemed to us, necessarily followed our holding that Dickinson did not make, or agree to execute, a lease on his interest in the 4,700 acres involved.

It seems, however, that Judge Kenna, and, (as appears from petitions for rehearing filed herein) counsel for the appellees, construe the language employed as an attempt to nullify and make ineffective the lease on the 4,700 acres, aforesaid, executed by Blair and Berthy to Gauley-Eagle, dated June 21, 1946. How, in the circumstances of this case, they find themselves able to reach this conclusion, is beyond our comprehension.

The most important issue involved in this case was whether John L. Dickinson should be held to have agreed to execute to Gauley-Eagle a coal lease covering his one-third interest in the 4,700 acres, on which Blair and Berthy have executed such lease covering their interests. No question was ever raised as to the right of Blair and Berthy to make the lease they executed, either in the pleadings, or in the evidence on which the case was heard, or in the argument of counsel; and therefore, no issue was presented to this Court as to the effect or validity of the Blair-Berthy lease, or the respective rights thereunder of the parties thereto. Despite the implications arising from the position of counsel to the contrary, we know that it is not only improper, but, in most instances, beyond the power of this Court to pass on questions not submitted to it for decision, and it has not done so in the case at bar. The language employed was not intended to, and, given a reasonable construction in the circumstances of the case, did not affect in any way, as between Blair and Berthy on the one hand, and Gauley-Eagle on the other, their respective rights under the lease between them. This Court did not assume to pass on this question, because it was in no way involved in the case, and was not, and could not, have been presented for decision either in the trial court or in this Court. That question, if it is ever raised, will have to be determined in a future suit or proceeding, unaffected by the decision we have made in the case at bar.

This memorandum is written to make clear the intended meaning of the language of the majority opinion referred to above; and further to make defense to the implications involved in the contentions that, without excuse or attempted justification, we assumed to decide issues not presented in the case, and attempted to destroy what may be valuable property rights without giving interested parties their day in court. We are unwilling to permit such an interpretation of the opinion filed by us to go unchallenged.