Kirk v. Mattier

• Decision Date: 08 June 1897
• Citation: 41 S.W. 252,140 Mo. 23
• Parties: Kirk, Appellant, v. Mattier et al
• Court: Missouri Supreme Court

41 S.W. 252

140 Mo. 23

Kirk, Appellant, v. Mattier et al

Supreme Court of Missouri, Second Division

June 8, 1897

Appeal from Jasper Circuit Court. -- Hon. W. M. Robinson, Judge.

Reversed.

McAntire & Gardner for appellant.

(1) It was a lease, not a license. Hobart v. Murray, 54 Mo.App. 256. (2) The lease contained a covenant to work continuously and in good faith, and also to sink a shaft two hundred feet deep upon the land within one year, and upon a failure to do either of these things the lease was to be forfeited and the plaintiff could enter. The remedy of the plaintiff was ejectment instead of an actual entry. Ruddick v. Railroad, 116 Mo. 26; Green v Railroad, 82 Mo. 653; Beatty v. Gregory, 17 Iowa 109; Beatty v. Gregory, 9 Mor. Min. Rep. 234; Boone v. Stover, 66 Mo. 434; Hamilton v. Wright Adm'r, 28 Mo. 199. (3) While at common law it was necessary for the grantor to enter upon land to work a forfeiture on condition broken; the modern rule is that the bringing of an action of ejectment will operate as a common law entry. Ruddick v. Railroad, 116 Mo. 26; Tredman on Real Property, sec. 277; Osgood v. Abbott, 58 Me 73; Jackson v. Allen, 3 Cowen, 220; Bowen v. Bowen, 18 Conn. 525; Gray v. Blanchard, 8 Peck, 284. (4) The defendants had an interest in the land greater than that of an incorporeal hereditament until condition broken. Desloge v. Pierce, 38 Mo. 588; R. S. 1889, secs. 7034, 7035, and 7038.

Edward C. Crow for respondent.

The grant of the right, license, power, and authority to dig, work, mine, and search for and remove, all ores within certain lands, and make the same merchantable and dispose of the same for a certain period of time upon a fixed royalty gives the grantee an incorporeal hereditament and is a license and not a lease. Iron Co. v. Wright, 32 N.J.Eq. 248; Hanley v. Wood, 2 B. & A. 734 (Kings Bench, 1819); Gillette v. Treganza, 6 Wis. 343; Gloninger v. Franklin Coal Co., 55 Pa. St. 9. (2) A grant of the privilege of raising iron ore on the land of the grantor at a certain price per ton is an incorporeal hereditament. Iron Co. v. Iron Co., 32 Pa. St. 241; Funk v. Haldeman et al., 53 Pa. St. 229; Grubb v. Grubb, 74 Pa. St. 25. (3) Ejectment can not be maintained for incorporeal hereditament. 6 Am. and Eng. Ency. Law, p. 232; Clement v. Youngman, 50 Pa. St. 341; Caldwell v. Fulton, 31 Pa. St. 483; Taylor v. Gladden, 40 Mich. 232. (4) The common law rule that an action of ejectment would not lie for anything upon which an entry could not be made, or of which the sheriff could not deliver possession. The interest must be visible and tangible so that a sheriff may deliver possession to plaintiff under the writ of possession issuing out of the courts. Newell on Eject., ch. 2, sec. 1; Black v. Hepburn, 2 Yates, 331. (5) Ejectment will not lie for the recovery of an easement or an incorporeal hereditament, and the question to be determined in these mining cases is whether the contract is a grant of the mines and metals in place in the ground, or whether the contract is simply a grant of a license to mine or search for metals or minerals or a privilege to dig in mines; if the contract grants the metals and minerals in place in the ground, ejectment will lie; if the contract simply grants the right to mine and remove the minerals found, ejectment will not lie; injunction or an action for damages would be the proper remedy. Grubb v. Bayard, 2 Wall. Jr. 81; Grubb v. Grubb, 74 Pa. St. 25; Hanley v. Wood, 2 B. & Ald. 724; Cheathem v. Williamson, 4 East. 469; Funk v. Haldeman, 53 Pa. St. 229; Harlow v. Lake Superior Co., 36 Mich. 105; Union Petroleum Co. v. Blevin Petroleum Co., 72 Pa. St. 173. (6) Ejectment will not lie for those parts of land necessarily occupied by shafts or mining excavations, or erections under mining reservations made and used only for mining purposes; the use of such parts of the land is in the nature of an easement which is appurtenant to the mine. Ericson v. Mich. L. & I. Co., 50 Mich. 604; Newell on Eject., sec. 31. (7) The right to mine and remove minerals with the right of egress and ingress as an incorporeal hereditament. Gloninger v. Coal Co., 55 Pa. St. 9; Doe v. Wood, 9 Mor. Min. Rep. 182; Iron Co. v. Iron Co. et al., 32 Pa. St. 241. (8) An action of ejectment will not lie for the right to quarry stone. Clark v. Brazzeau, 1 Mo. 290; Brown v. Chadwell, 7 Irish C. L. P. 101.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is an action of ejectment for the following real estate in Jasper county, Missouri, to wit, all of the lead, zinc and other ore substances of that part of said land underneath the surface and in the shafts thereon of the southeast quarter of the northeast quarter of section 33, township 28, range 32, with the exception of a strip of land four hundred feet wide running north and south on the west side of said southeast quarter of the northeast quarter, less two mining lots two hundred feet square in the northeast corner of said strip. And also all that part of said land underneath the surface of the strip of land four hundred feet wide, being the south side of the northeast quarter of the northeast quarter of section 33, township 28, range 32, and the shafts thereon.

Ouster is laid as of November 11, 1893, and damages claimed in the sum of $ 200.

The answer of defendant Bremmerman is a general denial. No answer was filed for the other defendants who appeared to be mere day laborers for defendant Bremmerman. The trial court rendered judgment for the defendant and plaintiff appeals.

On the trial plaintiff offered and read in evidence a warranty deed to himself in due form, properly acknowledged from John J. Kirk and wife and Stephen P. Kirk and wife to James A. Kirk, the plaintiff, of date October 25, 1882. He also offered testimony showing that he had been in the peaceable possession of all of said lands for ten years. He then offered and read in evidence the following instrument in writing:

"MINING LEASE.

"This indenture, made on the 13th day of October, 1892, by and between James A. Kirk of Jasper county, State of Missouri party of the first part, and Frederick Bremmerman of Jasper county, State of Missouri, party of the second part. Witnesseth that the party of the first part, in consideration of the sum of $ 1 to him paid and hereby acknowledged, does by these presents demise and lease unto said party of the said part, his heirs and assigns, for mining purposes only, for the term of ten years from the date above written, the following described real estate in Jasper county, to wit:

"The S. E. one fourth of the N. E. one fourth of section 33 township 28, range 32, with the exception of a strip of land 400 feet wide, running north and south on the west side of the S. E. one fourth of the N. E. one fourth, less two mining lots 200 feet square, in the northeast corner of said strip. And also a strip of land 400 feet wide off the south side of the N. E. quarter of the N. E. quarter of said section, township and range, dependent at all times upon the full and proper performance of the following conditions: First. The party of the second part shall within ten days from date, begin mining said land in good faith, sink a shaft to the depth of 200 feet, within 12 months of the date above written, and shall, when required by the first party, place on said land pumps and machinery to drain the same of water so as to permit the efficient mining thereof. Second. Said party of the second part shall mine said land in a good and miner like manner, shall keep all shafts and drifts well and securely timbered and supported. Mining shall be carried on in good faith continuously, and shall not be suspended at any time, except on account of unavoidable accidents, for a longer period than ten days at any one time, without the written consent of the party of the first part, and the working of said land for one or several days between cessation of work thereon for ten days at different periods, shall not be construed as a compliance with the terms of this lease. Third. All ores and minerals shall be cleaned and prepared for market and no rough or crush rock shall be removed therefrom to be cleaned without the written consent of the party of the first part. Fourth. The party of the second part shall keep a correct account of all mineral mined, the amounts and receipts thereof to whom sold and the price received therefor, which accounts shall be open to the inspection of the party of the first part at all times. He shall on the first day of each month render to the party of the first part a correct statement of the kind and weights of all minerals sold during the preceding months, to whom sold and the prices received therefor. Fifth. The party of the second part shall pay on or before the fifth day of each month to the party of the first part, at the Exchange Bank in Webb City, Mo., 10 per cent of the price received for all ores sold the preceding month as royalty thereon. Sixth. The party of the second part shall have the right to erect all necessary buildings and machinery on said land for the purpose of mining and cleaning ores thereon, and to remove the same at the expiration of this lease except timbering and other improvement necessary to support the ground. Seventh. The party of the second part shall provide necessary gates through which to enter upon and from said land and at all times to keep the same closed to prevent stock from trespassing upon said land. Eighth. The party of the first part shall have at all times the right to enter all shafts and drifts to see that the requirements of this lease are complied with. And any time failure to comply with or perform the requirements and conditions of this lease in good faith shall end and...