Arbuthnot v. Eclipse Land & Min. Co.

• Decision Date: 08 January 1906
• Citation: 115 Mo. App. 600,92 S.W. 170
• Court: Missouri Court of Appeals
• Parties: ARBUTHNOT et al. v. ECLIPSE LAND & MIN. CO. et al.

92 S.W. 170

115 Mo. App. 600

ARBUTHNOT et al. v. ECLIPSE LAND & MIN. CO. et al.

Kansas City Court of Appeals, Missouri.

January 8, 1906.

MINES AND MINERALS—LEASES—SUBLETTING —TERM—STATUTES.

Rev. St. 1899, § 8766, provides that, when any person owning real estate or leasehold interest therein for mining purposes shall permit any persons other than their agents or employés to mine thereon, a printed statement of the terms on which the lands are to be mined shall be kept posted, etc., for the information of persons digging on the land, and section 8767 declares that in case the owner or lessee failed to comply with the previous section a person permitted to mine or open a shaft on the land shall have the exclusive right to mine such shaft, etc., and a right of way over the land for purposes of such mining for a term of three years from the date of his permit. Held that, where a lessee of certain mineral land orally permitted plaintiff's assignors to mine on the land without posting mining rules and regulations, the rights acquired by plaintiff's assignors which they were authorized to assign were limited to a prior of three years.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by C. W. Arbuthnot and another against the Eclipse Land & Mining Company and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Robert A. Mooneyham and H. W. Currey, for appellants. Thomas & Hackney, for respondents.

BROADDUS, P. J.

The court sustained a demurrer to plaintiffs' petition, and they appealed.

The petition is substantially as follows: In February, 1901, the defendant the Eclipse Land & Mining Company held a mining lease for the unexpired term of eight years on certain real estate in the county of Jasper, and without putting up mining rules and regulations, as required by the statute, gave verbal permission to W. B. Smith and Orlando Williams to mine on a part of said premises; and it was also verbally agreed that they and their assigns should have the right to mine on the land during the terms of said company's lease. Afterwards, on May 2, 1901, said company posted rules and regulations, which, however, did not specify the time during which the mining right should continue; but it was agreed verbally, at the time when said Smith and Williams signed the register of the rules, that their right to mine should continue during the unexpired term of said company's lease. Afterwards Smith and Williams transferred certain of their interest to the firm of Lichliter & Co., by the terms of which the latter were to pay the Eclipse Company a certain royalty and also to pay Smith and Williams a royalty. Under the arrangement Smith and Williams and Lichliter & Co. operated the mines, and the latter paid royalty to the Eclipse Company and to Smith...