Cleveland & A. Mineral Land Co. v. Ross
| Citation | 36 S.W. 216,135 Mo. 101 |
| Court | United States State Supreme Court of Missouri |
| Decision Date | 16 June 1896 |
| Parties | CLEVELAND & A. MINERAL LAND CO. v. ROSS et al. |
Appeal from circuit court, Lawrence county; W. H. Robinson, Judge.
Action by the Cleveland & Aurora Mineral Land Company against J B. Ross and others. Judgment on a verdict directed for plaintiff. Defendants appeal. Reversed.
Wm. B. Skinner, H. H. Bloss, and Cloud & Davies, for appellants. Carr McNatt and Henry Brumback, for respondent.
Ejectment for possession of a mining lot, numbered 28, of the "Bonanza Tract," being 200 feet east and west, by 223 feet on the west end north and south, and 210 feet on the east end, in Lawrence county. Ouster is laid March 25, 1893. The answer, after a general denial, avers that in September, 1891, with the knowledge, permission, and consent of the then owners, defendants entered the premises to dig for lead and other ore, and in good faith dug and opened shafts, extended and operated drifts, therefrom, and have ever since been in possession for the purpose of mining, under and in accordance with the provisions of section 7035, Rev. St. 1889, and have erected buildings and machinery on the surface, and have made no other claim than such as was necessary to carry on such mining operations. Plaintiff, in its reply to defendants' answer, alleges that, after defendants entered and commenced work, they failed and neglected to work, or cause to be worked, their shaft, mine, drift, or deposit of mineral for 10 days, not including Sundays, in the calendar month of March, 1893, viz.: from March 1st to March 18th, without such failure and neglect having been caused by unavoidable circumstances, or by the act of plaintiff, and without plaintiff having consented thereto, and thereby defendants have forfeited all right to work or hold the premises; and, second, that defendants have failed and refused, when demanded by plaintiff, to pay royalty to the plaintiff on the ores and mineral by them mined from the premises, and thereby they have forfeited their right. The trial was before a jury, and after the evidence was all in, under peremptory instruction by the court directing them so to do, they returned a verdict for plaintiff, upon which judgment was rendered, and defendants appealed.
It was stipulated between the parties at the trial that they claim title through the same common source, to wit, John S. Wilson, Carr McNatt, the Brinkenhoff Mining Company, Warren Vertrees, R. R. Lyon, and J. R. Simmons, and that in September, 1891, A. Y. Ross, J. B. Ross, and E. H. Williams went into the ground, at which time said McNatt was acting as the agent, and representing said Lyon and Simmons with respect thereto. Plaintiffs showed legal title to the land described in the petition. The evidence on the part of defendants tended to show that prior to September, 1891, Wilson, McNatt, the Brinkenhoff Mining Company, Vertrees, Lyon, and Simmons had staked a tract of land of 9 acres off into mining lots 200 feet square, for mining purposes, and that the lot in question is one of those lots. They had no written or printed rules, but permitted miners to enter upon the lots, and prospect for mineral, under the statutes of the state, reserving to themselves a royalty of 20 per cent. on the mineral mined. In the fall of 1890, at which time said Vertrees was one of the owners, and superintendent of the land, and before McNatt took charge of it, one Connett went on the land, with the permission of Vertrees, and, in connection with one Adams, commenced to sink a shaft. In March, 1891, they sold a one-third interest of their claim to E. H. Williams, and the three continued to work the shaft until September, 1891. In the early part of September, 1891, Vertrees ceased to be superintendent; and, after that, McNatt was superintendent, and gave permission for persons to mine on the lots. In the same month, E. H. Williams, A. Y. Ross, and J. B. Ross purchased the mining property, and succeeded to the rights, of Connett, Adams, and E. H. Williams. E. H. Williams and J. B. Ross went to see McNatt, who was then agent for the land, to arrange about it, and made an arrangement with him to mine the lot, by which he agreed to reduce the royalty to 15 per cent., and in pursuance of this arrangement they went on mining. After the arrangement with McNatt, defendants claim to have acquired from one Drake the lot immediately east of and adjoining the lot in question, and the right to mine the same through the drifts and shaft upon the lot in question, by and with the consent of McNatt, the agent and representative of plaintiffs. There was no proof, however, that McNatt ever consented to this arrangement, or that plaintiffs ever did, except as hereinafter stated. Defendants had erected a number of sheds, buildings, and machinery, such as are usually used in the kind of mining in which they were engaged on lot 28, and were operating the same at the time plaintiff was incorporated, and became the owner of both of said lots; and when H. J. Baldwin, one of said corporators, and its representative and agent, was thereafter looking over said premises, and getting the names and claims of the miners operating the lands acquired by plaintiff, J. B. Ross showed him the boundaries of the claim of defendants; and they thereafter paid to him the royalty, and continued to do so, and mine the ground, until about the 1st of February, 1893, when Baldwin suggested that they give up their lease, and pay him 20 per cent. royalty, instead of 15, which they had been paying under their contract with McNatt, stating at the time if they did not then surrender the old lease, and enter into a new contract with plaintiff, and pay 20 per cent. royalty, when their lease was out he would not let them have it for another term. They declined to accede to this proposition, and on February 5, 1893, plaintiff served on defendants the following notice: ...
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