The contract between the parties hereto and the various phases of the controversy between them arising out of the mining of coal by defendant upon plaintiff’s land can be found in so many reported decisions that it is only necessary to state such facts as are particularly involved in the questions presented by this appeal.
This action is known as action Ho. 4 and was begun in February, 1891, and on its trial resulted in a judgment in favor of plaintiff for the value of a certain quantity of small coal extracted by the defendant from culm or mine waste, which on appeal to the Court of Appeals (167 N. Y. 608) was reversed unless plaintiff stipulated to reduce her recovery to the royalty per ton provided by the-mining contract executed by-her to defendant. This she did not do, but instead amended her complaint so as to demand royalties upon all tonage taken from the mine from its opening to the commencement of the action. The issues joined by this amended complaint and *734answer to it were tried before a referee and have resulted in a judgment for the plaintiff, from which-both, parties appeal.
By his decision the referee gave the plaintiff royalties on all pea and buckwheat coal separated and taken from the culm or mine waste resulting from mining on the plaintiff’s land, and sold or burned'by defendant in its own boilers from 1886. to 1891. He .also gave plaintiff royalties on seventy-nine per .cent of the culm deposited by defendant at what.is known as the Leggett’s Creek shaft, situated on defendant’s own land. Ordinarily, coal from plaintiff’s . land is brought to the. surface and broken at What is termed the liarvip shaft; but because of some accident.to plaintiff’s mine it became more convenient to take the coal from her lands under ground through defendant’s, own mine, and lift and break it at -the Leggett shaft. It is the culm resulting from' the breaking and sifting of coal thus mined on-which the referee allowed royalty.
The plaintiff insists that the referee should have allowed to her royalty on all the . culm as coal thus taken by the defendant to its own land, instead of deducting twenty-one per cent as foreign sub- ■ stance. And the defendant complains that .this taking was nót such ■an appropriation by it as to subject it to royalty at. all; but that if it was, the percentage of coal found by the referee was altogether .toó. high; and, further, that'it is not liable for the royalty On' the small coal actually separated from the culm at the Leggett -and Marvin- dumps, and sold by it or burned in its own boilers. ■
While the finding by the referee is not strictly in accordance with, the rule laid down by this court in another action between these parties (71 App. Div. 613) with respect to culm, as Culm actually transported from the-plaintiff’s land to .the defendant’s land,-yet .we do not feel called upon to disturb his finding that twenty-one per cent pf the mass of culm consisted of substances'which could not be denominated coal. The facts proved justified him in saying that the defendant had taken and appropriated at least all the coal that was contained in the culm which it placed upon its own land. With respect-to.the small coal sold and. burned by the defendant, there would seem to be'no reason why the defendant should not pay royalty. Indeed, the defendant does not really dispute its liability, but claims that in the adjustment of mining operations and the payment in certain years for ,coal not mined, it should have, credit for *735the coal thus charged to -it. From the mass of figures before the referee, and the conflicting claims thereon, he has concluded otherwise, and we think his conclusion should be upheld. So far, therefore, as the appeal of the defendant is concerned, the judgment must be affirmed.
There is another branch of the case, however, which presents • a more serious question. The plaintiff insisted on the trial, and sought to prove, that the defendant had appropriated all of the culm resulting from the mining of coal on her land, and was, therefore, liable for royalty thereon.. This culm was mixed with a large quantity of culm produced, from coal mined from defendant’s own mines, and all was piled on plaintiff’s land, and is designated the Marvin dump, and is the product of years of mining operations. When the contract between these parties was entered into all this was supposed to be waste, and one. of plaintiff’s obligations under the contract was to supply a place for its deposit. Improved mining operations and machinery, however, have rendered it possible to extract a large quantity of valuable small size coal from it. Thd referee refused to pass upon the question as to whether or not the defendant had appropriated this culm in such manner as to make it liable for royalty, because he deemed the plaintiff estopped from asserting claim thereto by reason of a prior action brought by. this plaintiff against this defendant. That action is known as action Ho. 2, and was begun July 1, 1886, and resulted in a judgment for the plaintiff, which upon appeal to the Court of Appeals (163 N. Y. 173) was modified, and as modified affirmed, and the judgment paid and satisfied.
We think the referee erred in holding that the plaintiff was either estopped or barred by this former action from now claiming a royalty on the small coal remaining in the culm produced from coal mined on her land not heretofore extracted by defendant, and now lying in the Marvin dump. The former action was based on the theory that the culm or mine waste was the property of plaintiff, and that the defendant was not entitled to take any coal from the plaintiff’s land except such as would pass over a half-inch mesh, and that what passed through such a mesh was as much the property of herself as the soil or rock which was loosened in the mining operations. Proceeding upon this theory, the plaintiff charged by her *736complaint that the defendant 'by using smaller screens than, half? inch had separated and canned away and sold and consumed large quantities of coal known as “pea,” “buckwheat” and “birdseye,” and demanded that defendant pay her its market value. In addition, she alleged that the defendant had not accounted to her1 at the stipulated royalty for all of the coal produced by it from her lands, which would pass, over a half-inch mesh, but had made false returns to her and demanded an accounting therefor. In addition, it was alleged that defendant purposely broke up the. coal finer than was necessary in' order to rediice the quantity which would pass over a. screen of a half-inch mesh. In its answer to this complaint, in addition to its denials and separate defenses, the defendant pleaded that it was the owner of all the small coal contained in the culm, and. that the plaintiff had no right thereto. Under these, issues the plaintiff had a recovery at its market value for- a largé quantity of pea and buckwheat, coal which defendant had taken- from plaintiff’s lands and sold, and for a considerable quantity of culm which it had also taken and sold or burned. It is difficult to see how small Coal or culm which the defendant had never taken or sold or consumed, hut which remained in the Marvin dump, was embraced within the.issues of this action, or how.the plaintiff can be estopped from now asserting, that defendant has actually taken further coal from, this dump or has by its,acts appropriated and taken the whole mass.. The interpretation of the contract by the Court of Appeals. in holding that the defendant was liable only for royalty upon each ton so taken, instead of its value does not change -the situation. -The plaintiff did not charge the defendant with having appropriated the entire mass of culm, but oñ the contrary alleged that the culm jvas. hers and that the defendant had separated and taken coal from • it which belonged to her. , She not only claimed this Coal so taken,, but she claimed to be- the owner of w-hat remained -unseparated; and because itzwas finally determined that, the coal was not hers and that she was only entitled to a royalty on it, did not change.her attitude as to the whole mass.
With respect to- small coal which had been actually separated and used or sold by defendant, and culm -which had been actually taken from the plaintiff’s land and' Sold or consumed by' defendant prior to July 1, 188fi, the referee was correct in holding that the plaintiff *737was barred froto recovery in the present action. All these weTe directly within the former issue and plaintiff should have made proof of them on her former trial. If she failed to do so, nevertheless, they cannot be the subject of a subsequent action.
. In this holding that the plaintiff is not estopped or barred from asserting her rights in the culm or coal now remaining in the Marvin dump, we do not decide that the defendant has so appropriated it or excluded plaintiff therefrom, as to give her a present right of action for the coal therein or for the culm as a 'mass. This depends upon many elements, which can be developed upon a retrial, freed from the embarrassment of estoppel which the present referee felt constrained to apply.
The judgment should be affirmed as against the defendant, with costs to plaintiff respondent, and reversed on the appeal of plaintiff with respect to culm and coal remaining in the Marvin dump, and a new trial granted as to that issue before another referee, with costs to plaintiff appellant to abide the event.
Ingraham, McLaughlin and Laughlin, JJ., concurred.
O’Brien, P. J.:I think the judgment should be affirmed on both appeals.
Upon the defendant’s appeal judgment affirmed, with costs. Upon the plaintiff’s appeal judgment reversed, new trial ordered before another referee, with costs to plaintiff appellant to abide event.