Brooks v. Gaffin

• Decision Date: 22 November 1905
• Citation: 192 Mo. 228,90 S.W. 808
• Parties: BROOKS et al. v. GAFFIN.
• Court: Missouri Supreme Court

90 S.W. 808

192 Mo. 228

BROOKS et al. v. GAFFIN.

Supreme Court of Missouri, Division No. 1.

November 22, 1905.

1. ACTION — LEGAL OR EQUITABLE — EQUITABLE DEFENSES—EFFECT.

Where, in ejectment to recover premises let to defendant under a mining lease, defendant filed an answer pleading mere equitable defenses to prevent a cancellation of the lease, but prayed no affirmative relief, such answer did not convert the case into a suit in equity.

2. MINES AND MINERALS — LEASES — FORFEITURE —DEFENSES.

Where a mining lease required defendant at once to enter on the leased premises and remove the coal therefrom, so that the face of the coal on the leased premises should be substantially even with the face of the coal on defendant's premises, it was no defense to an action to enforce a forfeiture of the lease for breach of the provisions thereof that defendant did not know that he was on the leased premises.

3. SAME — GROUND FOR FORFEITURE.

Where a coal lease executed to defendant provided that he should immediately enter and begin mining thereon; that he should remove coal therefrom, so that the face of the coal on the leased premises be substantially even with the face of the coal on defendant's premises; that he should keep strict account of the coal mined, make periodical surveys, and mine a certain amount of coal per month, or pay a certain minimum royalty; and provided that for breach of the lease plaintiff should have the right to re-enter—and defendant, for a period of more than 16 months between the execution of the lease and notice of forfeiture, never complied in good faith with any of such provisions, plaintiff was entitled to declare a forfeiture and recover possession, and was not limited to his right of action for damages.

Appeal from Circuit Court, Lafayette County; Sam Davis, Judge.

Action by Mary A. Brooks and others against Otho Gaffin. From a judgment for defendant, plaintiffs appeal. Reversed.

Alexander Graves and Wm. H. Chiles, for appellants. John Welborn, Chas. Lyons, and U. G. Phetzing, for respondent.

MARSHALL, J.

This is a suit in ejectment to recover possession of certain lands lying in section 1, township 50, range 27, and in section 36, township 51, range 27, in Lafayette county. Judgment was rendered for defendant in the trial court, and the plaintiffs appealed.

The Issues.

The petition alleges: That the plaintiffs are the widow and children of Alexander Brooks, who died in February, 1901. That on the 1st of February, 1899, Alexander Brooks entered into a written coal lease with the defendant of the premises in controversy, whereby he leased to defendant the premises for a term of 25 years, unless sooner terminated or forfeited by the terms and provisions of the lease. That the lease conferred upon the defendant no right to use the surface of the land, except for the maintenance of one air shaft for ventilating the mine. That all coal mined from the premises should be removed through the slope and entry of the defendant on the land adjoining the premises leased. That the defendant by the terms of the lease agreed in good faith and with all proper expedition to mine and remove coal from said premises, "agreeing for the first two years of this lease to mine and remove sufficient coal at least to keep the face of the mine of the above premises even with the face of the coal of said second party on the adjoining land now being mined by him, and that during the remaining years of said lease he will mine and remove at least 16,000 bushels per month from September 1st of each year to April 1st of the following year, and at least one-fourth of that amount during the other months of the year, and, in default of mining such quantities, will pay for at least that number of bushels at each monthly pay day, whether mined or not, and whether in whole or in part. Said second party agrees to pay for such coal at the rate or royalty of one-eighth of a cent per bushel, provided that, if the amount mined in any one year shall be as much as 300,000 bushels, then he will only pay one-tenth of a cent per bushel. * * * Said second party agrees and binds himself to make a settlement, on the 20th of each month, of all coal mined to the 1st day of such month and unpaid for, and to make payment of the amount found to be due on said day and to ascertain the amount of coal so mined; agrees to correctly weigh all coal so mined and keep a full and correct account thereof. * * * Should said second party [Otho Gaffin] fail to mine the minimum amount of coal to be mined thereunder for four consecutive months, the first party has the right to terminate this lease on written notice to that effect given said second party or his heirs or legal representatives. * * * On the nonperformance or noncompliance with any of the terms and conditions of this agreement on the part of the second party [Otho M. Gaffin] this lease shall be forfeited at the option of the party of the first part, who shall be entitled to re-enter and take possession of the premises on ten days' written notice to that effect to said second party, his heirs or legal representatives. The second party [Otho M. Gaffin] for himself, assigns, and legal representatives, agrees to surrender the peaceful and full possession of the premises on the termination, expiration, or forfeiture of this lease without further notice or demand than expressed in this agreement. The second party [Otho M. Gaffin] agrees to have a survey made of said mine twice each year at his own expense, and exhibit said survey to said first party, so as to show how the face of the coal is progressing on his land." The petition then alleges that the defendant was guilty of a breach of the conditions of the lease in the following respects: First, that he failed and neglected, for the first two years of the lease and up to the filing of the petition, to mine and remove sufficient coal to keep the face of the mine on plaintiffs' premises even with the face of the coal of the defendant on the adjoining land mined by him; second, that he neglected and refused in good faith and expedition to remove coal from said premises; third, that he neglected and refused in good faith to mine during the remaining years of said lease and to remove at least 16,000 bushels per month from September 1st of each year to April 1st of the following year, and at least one-fourth of that amount during the other months of the year; fourth, that he failed and refused to make settlements, on the 20th of each month during said lease, of all or of any coal mined to the 1st of such month, and failed, neglected, and refused to make any settlement or payment whatever for any coal mined by him, and failed and neglected to mine the minimum amount of coal required by the terms of this lease for four consecutive months or more; fifth, that he failed and neglected to have a survey made of said mine twice each year at his own expense, and exhibit the same to the lessor during his lifetime or to the plaintiffs after his death, so as to show how the face of the coal is progressing. The petition then avers that in consequence of such breaches the plaintiffs, on the 21st of June, 1901, served defendant with a written notice of forfeiture of said lease, but that notwithstanding such notice the defendant continued in the possession of the premises and refused to surrender the same to the plaintiffs. The ouster is then laid as of the 21st of June, 1901. The monthly rents and profits are averred to be $100. The petition then avers that on and after June 22, 1901, the defendant committed waste on the premises, by digging, excavating, and carrying away coal therefrom to the amount of $500. The prayer of the petition is for possession, $100 monthly rents and profits, and $500 waste.

The answer of the defendant admits the ownership of the property and the execution and terms of the lease pleaded by the plaintiffs, and then by way of defense pleads that on the ____ day of September, 1899, the lessor and the defendant entered into a verbal agreement modifying the lease by stipulating that the defendant should make no more surveys until notified by the plaintiffs so to do; that thereafter, in September, 1900, the lessor notified the defendant to have a survey made of the mine, and that he had employed one J. A. Wilson to survey the mine, and that he had exhibited said survey to the lessor, and that the survey showed that the defendant was not upon the lessor's land and had taken no coal therefrom, and that the lessor accepted the survey and made no objection thereto; that in July, 1901, the defendant had said Wilson survey the mine, and that the survey showed that he had been excavating coal on plaintiffs' land, and that the survey made by said Wilson in September, 1900, was an imperfect and incorrect survey; that as soon as defendant ascertained this fact he caused said Wilson to determine the area of plaintiffs' land mined and excavated by defendant, and the number of bushels of coal taken therefrom, and what said coal would amount to at one-eighth of a cent per bushel, and on the ____ day of July, 1901, tendered to plaintiff the sum of $184.66, the value of the coal taken from plaintiffs' land, and deposited with the clerk of the circuit court, to the credit of the plaintiffs, the sum of $200; that on the 20th of March, 1901, and on each month after said date, "he had at his mine the number of bushels of coal mined by him on plaintiffs' land and the money therefor, and has at various times tendered the same to plaintiffs"; that defendant has made valuable and lasting improvements on the premises, has built and established roadways and passages, laid tracks, and at great expense has opened the face of the coal on plaintiffs' land to an extent of 300 feet; that defendant is ready and willing, and has been so at all times to carry out his part of the contract, and to pay any and all royalty that may be due plaintiffs, and that he has...