Boone v. Stover

• Citation: 66 Mo. 430
• Parties: BOONE et al., Plaintiffs in Error, v. STOVER et al.
• Decision Date: 31 October 1877
• Court: Missouri Supreme Court

66 Mo. 430

BOONE et al., Plaintiffs in Error,

v.STOVER et al.

Supreme Court of Missouri.

October Term, 1877.

Error to Morgan Circuit Court.--HON. GEORGE W. MILLER, Judge.

Action for damages for breach of an implied covenant for quiet enjoyment of a mining right granted by an instrument under seal. At the trial plaintiffs were forced to take a non-suit. Hence, this appeal.

Spurlock & Richardson for plaintiffs in error.

1. Implied covenants for peaceable and quiet enjoyment arose from the instrument or lease. There can be no doubt of this, where rent was paid and received, as in this case. 4 Cruise's Dig. title, lease, p. 51, marginal 68; Mack v. Patchin, 29 How. (N. Y.) 20; Hamilton v. Wright's Admr., 28 Mo. 199; Vernam v. Smith, 1 Smith (N. Y.) 327; 2 Story on Contr., Sec 906. In this case the defendants had made a prior lease under which the plaintiffs were evicted, and that of itself was a breach of the implied covenant.J. L. Smith for defendants in error.

1. The mining permit, under which plaintiffs entered into possession of the premises, does not contain any covenant for quiet enjoyment, nor any words from which the law will imply such covenant. The words “have permission,” are neither a translation nor the equivalent of the words demisi, concessi, and unless this is so, no covenant will be implied. There is none growing out of the simple relation of landlord and tenant. Meader v. Carondelet, 26 Mo. 112.

2. The instrument referred to is not a lease, it is a mining license. 1 Washburn Real Prop. 148; Cook v. Stearns, 11 Mass. 533; Bainbridge Mines & Min., pp. 129, 39, 237, 269, 321; Chicago Oil Co. v. U. S. Pet. Co.,57 Penn. St. 83; Norway v. Rowe, 19 Vesey 158, 144; Chetham v. Williamson, 4 East 464; Doe d. Hanley v. Wood, 2 B. & Ald. 724; Thomas v. Sorrel, Vaughan 330.

1. MINING LICENSE: covenants.

NAPTON, J.

In this case we are under no necessity of referring to the distinction which is recognized, both in England and in this country, between parol licenses and licenses by deed, which in some cases is important. The distinction is clearly, though somewhat quaintly explained by C. J. Vaughn, in Thomas v. Sorrel, (Vaugh. 351), “a dispensation or license properly passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful, without which it had been unlawful, as a license to go beyond the seas, to hunt in a man's park, to come into his house, are only actions which, without license, had been unlawful. But a license to hunt in a man's park and carry away the deer killed to his own use, to cut down a tree in a man's ground and to carry it away the next day after to his own use, are licenses as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and the tree cut down, they are grants. So to license a man to eat my meat, or to fire the wood in my chimney to warm him by, as to the actions of eating, firing my wood and warming him, they are licenses; but it is consequent necessarily to those actions that my property may be destroyed in the meat eaten and in the wood burnt. So as, in some cases, by consequence and not directly, and as its effect, a dispensation or license may destroy and alter property.”

A license, therefore, which gives some usufruct of the land itself, is an incorporeal hereditament, and can only be created and transferred by deed. Bainbridge on Mines 252. The deed produced in evidence in the present case, was a license and a grant of an incorporeal hereditament. This deed, had it contained formal provisos and covenants entered into by both parties, would have had the same effect as a lease, though not technically one. Muskett v. Hill, 7 Scott 855; 5 Bing. N. C. 694. It was not revocable, because it was not simply a license which might be by parol, but was accompanied with the grant of a beneficial privilege in lands. It contains covenants on the part of the grantees to deliver weekly all minerals raised on the lot to the Granby Mining and Smelting Company, or their agents, at the current market prices, and to perform not less than twenty days work every calendar month, unless prevented by sickness or unavoidable accident, and authorizes the Granby Mining and Smelting Company, by their agents, to inspect the work, whenever they desire, and empowers such agents, when they are of opinion that said work is not done in a workmanlike manner, or when any other agreement or covenant of the grantees is not complied with, to re-enter and take possession of the mine, without resorting to any court of law or equity. On the part of the grantors the deed gives permission to plaintiffs, the grantees, to mine on the lot described in it, “so long as they do regular mining work on said lot.” Being under seal, and granting not merely a permission, but a beneficial privilege in the lot, it was not revocable except for breaches of the contract by the grantees. The grantors could not eject the grantees while the latter were doing “regular mining work.” Mr. Bainbridge in his work on Mines and Mining observes, that “it may be generally laid down, that if it appears to be the intention of a deed of grant or license, that the grantee should be solely and exclusively entitled to work for mineral, the grantor will be afterwards precluded from abridging or derogating from his grant by any attempt to exercise a right similar only in deed, but incompatible with his former disposition. This intention should properly appear in the granting part, for the use of the granting part is to give an accurate description of the thing granted. It is an essential part of the thing granted that it is freed from the interruptions and claims of others.” (Ch. 8, Sec. 4, p. 255.)

Mr. Taylor, in his Treatise on Landlord and Tenant, also makes a similar observation. “A license may have the force of a grant of an incorporeal hereditament if it be valid and delivered; and if granted for a consideration, it may take effect as a covenant; as, if it authorizes the party to whom it is made to go upon the land of the party granting it, to use the land for his own profit; in which case it would be equivalent to a lease, or it may be limited to some particular purpose, as to cut wood, to draw water, &c., and in either case would be supported as a covenant, and effect would be given to it, in the same manner as any other contract.” The thing granted in this case is the privilege of mining on a described lot so long as regular mining...