So it would appear that the conveyance here in question is an assignment. See, Haynes v. Eagle-Picher Co., 295 F.2d 761 (10th Cir. 1961), cert. denied, 369 U.S. 828, 82 S.Ct. 846, 7 L.Ed.2d 794 (1962). However, Spears v. Canon De Carnue Land Grant suggests that in New Mexico, this conveyance would be considered a sublease.
Factual backing for other issues is nevertheless presented in the Opinion, and in detail in the Findings of Fact following it. A universal rule of landlord and tenant law is expressed in Haynes v. Eagle-Picher Co., 295 F.2d 761, 763 (10th Cir. 1961), cert. denied 369 U.S. 828, 82 S.Ct. 846, 7 L.Ed.2d 794 (1962): It is well settled that a conveyance by a lessee of an estate less than his own, retaining a reversion, is a sublease, while a conveyance which operates to transfer the entire interest of the lessee is an assignment.
"`Concentrates' is hereby defined to mean the marketable zinc and/or lead mineral as recoverable at the mill or concentrating plant where treated, including in addition to lead and zinc metal any and all other metals or elements contained in such concentrates." In 1961 this court interpreted a royalty clause contained in a lease between non-Indian owners in the Tri-State Mining District and Eagle-Picher. Haynes v. Eagle-Picher Company, 295 F.2d 761 (10th Cir. 1961). The clause required the lessee to pay "`a sum of money equal to five (5) percentum of the market value at the place mined or produced of all oil, gas, asphaltum, lead, zinc and all other minerals or substances whatever, which may be mined or removed by the said party of the second part * * *.'"
"Produced" has been determined to mean, in the collective bargaining context, having acquired something of ascertainable value. Haynes v. Eagle-Picher Co., 295 F.2d 761, 765 and n. 2 (10th Cir. 1961). Coal is produced for use or sale when it is first made marketable or usable as fuel.
Plaintiffs have not sustained their burden of proving that multiple payments were made or were contemplated by the parties to the Wage Agreements. That Olyphant Coal Company was not a party to the Wage Agreements is not relevant to this reasoning or to the Court's interpretation of the term "produced for use or for sale." See Lewis v. Kerns, 175 F. Supp. 115, 118 (S.D.Ind. 1959): Haynes v. Eagle-Picher Company, 295 F.2d 761, n. 2 at 765 (10th Cir. 1961). III. CONCLUSIONS OF LAW
VII The wording of the lease in the case of Haynes v. Eagle-Picher Company (Tenth Cir.-1961), 295 F.2d 761, is totally different than in the 1922 and 1945 leases herein. Moreover, as to the 1945 leases the knowledge possessed by the parties at the time the leases were executed is totally different than in the Haynes case.
However, as Rocklen makes clear, Connecticut courts do not look to the intent of the parties, but instead determine whether the transferor's entire interest is transferred. See also Joseph Bros. Co. v. F.W. Woolworth Co., 844 F.2d 369, 372 (6th Cir. 1988): Thomas v. United States, 205 Ct.Cl. 623, 505 F.2d 1282, 1286-87 (1974); Haynes v. Eagle-Picher Co., 295 F.2d 761, 763 (10th Cir. 1961), cert. denied, 369 U.S. 828, 82 S.Ct. 846, 7 L.Ed.2d 794 (1962). Contrary to Pierce's assertions, the Assignment did convey his entire interest for the entire term of the lease.
Hence, when the lease expires, the interest reverts to the sublessor, herein Columbia. Haynes v. Eagle-Picher Co. (C.A. 10, 1961), 295 F.2d 761; Shearer v. United Carbon Co. (W.Va. 1958), 103 S.E.2d 883; Williard v. Campbell (Mont. 1932), 11 P.2d 782; Garner v. Knudsen (Cal.App. 1955), 277 P.2d 890; Halbert v. Hendrix ( Ind. App. 1950), 95 N.E.2d 221; Sunburst Oil Refining Co. v. Callender (Mont. 1929), 274 P. 834. Moreover, if the 1949 Assignment is considered an assignment and not a sublease, then the rights to drill in the Berea Sands revert to the landowners-lessors, the Clarks, upon abandonment of the Berea wells by the assignee.