Ross v. Cleveland & A. Mineral Land Co.

• Decision Date: 07 May 1901
• Court: Missouri Supreme Court
• Parties: ROSS et al. v. CLEVELAND & A. MINERAL LAND CO. et al.

62 S.W. 984

162 Mo. 317

ROSS et al. v. CLEVELAND & A. MINERAL LAND CO. et al.

Supreme Court of Missouri, Division No. 2.

May 7, 1901.

PLEADING—SEVERAL COUNTS—ELECTION— AMENDED PETITION—DEPARTURE.

1. Plaintiffs filed a petition, consisting of several counts, and, on motion of defendants, the court ordered plaintiffs to elect on which count they would proceed to trial, and subsequently plaintiffs, by leave of court, filed an amended petition. Held, that the fact that the plaintiffs did not comply with the order to elect constituted no ground for striking out the amended petition, since the filing thereof constituted an abandonment of the original.

2. Plaintiffs alleged that they were conducting a mine under a lease which had two years to run, and that, by reason of defendants' unlawful interference, plaintiffs were compelled to suspend mining operations. Held, that an amended petition, which alleged that plaintiffs occupied the land by permission of the owners, did not constitute such a variance from the original as to justify the court in striking out the amended petition.

3. Plaintiffs alleged that they were operating a mine on certain lands under a lease, and that defendants, in contravention of plaintiffs' rights, commenced to dig a mine on the land, and maliciously interfered with and prevented plaintiffs from carrying on their mining operations. Held, that an amended petition, which averred that defendants conspired together to compel plaintiffs to abandon their mining operations, and that in pursuance of such conspiracy defendants entered upon the premises, and began mining operations thereon by digging and sinking shafts, to the exclusion and in contravention of plaintiffs' rights, constituted a departure from the original petition.

Appeal from circuit court, Lawrence county; J. C. Lamson, Judge.

Action by J. B. Ross and others against the Cleveland & Aurora Mineral Land Company and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Cloud & Davis, Wm. B. Skinner, and H. H. Bloss, for appellants. McNatt & McNatt, Henry Brumback, and T. K. Skinker, for respondents.

BURGESS, J.

In 1893 plaintiffs began suit against the defendants in the circuit court of Lawrence county, alleging in their petition that in January, February, and March of that year, and long prior thereto, they were in the possession of the following real estate. Then follows a description of the ground. The petition then proceeds as follows: "That plaintiffs, during the months aforesaid and long prior thereto, had been engaged in mining on said tract of land, and taking out lead and zinc ores therefrom, and had therein and thereon mining shafts, drifts, machinery, buildings, and other appliances for the carrying on of said mining business. That plaintiffs had a mining lease on said land for a period having some two years yet to run, at a royalty of fifteen per cent., and the mining operations conducted by plaintiffs thereon prior to said months had been of great profit to the plaintiffs, to wit, of the net profit of $400 per week. That plaintiffs, in their shafts and drifts on said land, had developed a large body of valuable mineral, and were constantly taking the same out in large quantities, and plaintiffs' mining lease on said land, on account of the large amounts which plaintiffs had invested therein, and the extensive body of mineral which they had developed, was of great value, to wit, of the value of twenty-five thousand ($25,000.00) dollars. Plaintiffs further state that in the conduct of their mining business they employed a large number of men. That at the end of each week they sold to mineral buyers the ore which they had mined during the said week, and that the funds so realized paid off the men and defrayed the other expenses of operating the mine, and thus kept their business moving. That on or about the 1st day of January last the defendants, with a view of compelling plaintiffs to abandon said premises and mining operations thereon, and surrendering their mining rights and lease, so that the defendant the Cleveland & Aurora Mineral Land Company, whose agents and officers, the other defendants, might get possession of said premises and the mines thereon, and the large body of mineral which plaintiffs had developed thereon and were entitled to take out for the unexpired term aforesaid, and to deprive plaintiffs of their mining rights on said land, entered upon said premises, and began to dig and mine thereon, and undertook to lease said premises to other parties, and to deprive plaintiffs of their possession thereof, and did lease said premises, or portions thereof, to other parties, in contravention of plaintiffs' rights, and did dig and mine thereon, and cause digging and mining to be done thereon, and did maliciously interfere with and prevent plaintiffs from carrying on their mining operations on said land, and did state and declare to divers persons that they intended to vex and harass plaintiffs in their operations on said land, and in their possession thereof, until they compelled plaintiffs to surrender their rights thereon to the Cleveland & Aurora Mineral Land Company. That, with this end in view, the said Cleveland & Aurora Mineral Land Company, and the other defendants, as its agents and officers, served divers notices on these plaintiffs to vacate said premises, and that their mining rights thereon were terminated, and in addition to entering on plaintiffs' occupancy and possession, and hindering and preventing plaintiffs from carrying on mining operations thereon, the defendants set about a steady policy of maliciously breaking up plaintiffs' business and forcing them to discontinue mining operations on said premises, and to vacate said premises, in the manner following: Plaintiffs state that the said Cleveland & Aurora Mineral Land Company and the other defendants are possessed of great capital, and these plaintiffs have a small capital, and, in order to carry on their business of mining on said land, have to realize each week on the mineral taken out during the said week. That defendants, knowing this fact, and the mode in which plaintiffs conducted their business, and that the same was the only mode in which plaintiffs could conduct their said business, began to replevy and take away from plaintiffs, before they could sell the same, all the mineral which plaintiffs mined and took out on said land, and under such replevin suits did seize and take away, on three different occasions, all the mineral which plaintiffs had taken out of said mine, thereby depriving plaintiffs of the power to sell the same in order to pay their employes and carry on their expenses in mining said land, and compelling plaintiffs to wait to get the money for said mineral until said suits should be determined by decision of the courts. That the defendants openly expressed and declared that they were taking this course for the purpose of oppressing these plaintiffs, and making it impossible for them to carry on their business of mining on said lands, and compelling plaintiffs to surrender their lease and rights thereon to the said Cleveland & Aurora Mineral Land Company. That, in addition to said vexatious and malicious litigation undertaken by the defendants against these plaintiffs and the said other unlawful and malicious conduct, said defendants notified all mineral buyers who bought mineral from miners in the Aurora camp not to buy any mineral from these plaintiffs taken out of their mines on these premises at their peril, and further notified said buyers that the plaintiffs did not own, and had no right to sell, mineral taken out of said mines, and that all of said mineral belonged to the said defendants, and said defendants would sue any buyers who might purchase mineral from these plaintiffs; thereby so alarming said buyers that it became impossible for plaintiffs to find purchasers for their mineral and ores taken out of said mine. That, by all the aforesaid malicious and unlawful acts of the defendants, the plaintiffs have been deprived of the power to carry on their mining operations on said land, or take out the ores which they have developed thereon, or to enjoy the rights and profits under the mining...