Citations
- 122 N.Y. 505
Full opinion text
Brown, J.
The plaintiff sought to establish his first cause of action by proving a parol agreement made at the time of the execution of the written agreement, or prior thereto, and as a condition of its delivery. Hpon well settled rules of evidence proof of such an agreement was properly excluded.
So much has been written by this court within recent years upon the rule which forbids the admission of oral evidence when offered to vary the terms of a written contract and the modifications and- exceptions which exist as to that rule that the subject is about exhausted, and no further discussion is needed or desired. It" is sufficient to say of the plaintiff’s appeal, therefore, that this case does not fall within any of the exceptions to the rule, and the judgment dismissing the complaint as to the first cause .of action must be aifirmed.
Upon the defendant’s appeal we are to inquire into the propriety of the injunction that has been granted and the damages that have been awarded, and the first and most important question presented is whether the defendant, under the contract, acquired a present, absolute right to use the shaft, breaker and machinery and other structures erected upon the surface of plaintiff’s land to mine and prepare for market coal from, adjoining and contiguous property.
This right defendant has heretofore exercised, and has mined coal from plaintiff’s property and from adjoining property through the Marvin shaft, the proof showing that from 1876 to May, 1886, 497,614 tons had been mined from plaintiff’s property, and 608,771 tons from adjoining lands. This right has been denied to the defendant by the judgment awarded by the referee, and it has been granted conditionally by the General Term, but upon such terms as absolutely nullifies the right.
The solution of the question requires an examination of the contract to determine precisely the rights and obligations of the parties thereunder. It is necessary to understand clearly what it is that the defendant has acquired, and what obligations it has assumed.
The first thing acquired by the defendant was “ all the coal contained in or under” the lands described in the contract, “ together with the right to enter upon and into said lands, and to dig, mine and remove said coal.”
It has the right to mine all the coal upon the land described in the contract, and this is without limitation as to time, except so far as that element may be controlled by the covenants and obligations thereto of the defendant, and it has the privilege to increase the quantity to be mined in any one year beyond the amount stipulated to be mined, i.