Consolidated Plaster Co. v. Wild
| Decision Date | 03 February 1908 |
| Parties | CONSOLIDATED PLASTER CO. v. WILD. |
| Court | Colorado Supreme Court |
Rehearing Denied March 2, 1908.
Error to District Court, Larimer County; Christian A. Bennett Judge.
Action by the Consolidated Plaster Company against Alfred Wild. From a judgment for defendant, plaintiff brings error. Reversed.
John R Dixon and L. R. Rhodes, for plaintiff in error.
Hugh Butler and F. J. Annis, for defendant in error.
The plaintiff in error, the Consolidated Plaster Company, a corporation, instituted this action against Alfred Wild, the defendant in error, to establish its ownership of, and its right to the exclusive possession and enjoyment of a certain leasehold estate and interest in, certain described real estate, and in and to a certain gypsum mill known and designated in the record as the 'New Buckhorn Mill,' under and by virtue of the terms of a written and oral lease. Upon the conclusion of plaintiff's testimony the trial court, upon defendant's motion, dismissed the action, upon the ground that plaintiff had not shown that it was in possession of the premises at the time of the institution of the proceedings. The merits of the controversy between the parties were not considered by the trial court and it is conceded by counsel for the respective parties that the only question presented for our consideration and determination by this record is whether the court erred in sustaining the motion of defendant to dismiss the action upon the ground stated.
The facts pertinent to the inquiry, as they appear from the pleadings and testimony, are in brief as follows: On the 11th day of October, 1892, the defendant was the owner in fee of certain premises, situated near Wild Spur, in Larimer county on which there was a large and valuable deposit of gypsum rock, upon which at the time was a gypsum mill, referred to in the record as the 'Old Buckhorn Mill.' On that date he executed to the plaintiff a written lease for said premises, together with the improvements thereon, for the period of 20 years from that date, in consideration of certain royalties to be paid as rental. Early in 1894 this mill, proving inadequate for the purposes of the company, was superseded by what is designated in the pleadings and evidence as the 'New Buckhorn Mill.' The machinery placed in the New Buckhorn Mill was purchased by the defendant at an execution sale, and removed from the city of Denver by the plaintiff to Wild Spur, pursuant to an oral agreement between the plaintiff company and the defendant. By this agreement it was arranged that defendant should purchase the machinery at an execution sale, and that the company should waive its right to retain the same in Denver under an existing lease held by it thereon, and should have the machinery transported to Wild Spur and set up, and should erect thereover a suitable mill building, and should also cause to be constructed thereto a spur connecting the same with the railroad, at its own expense, in consideration of which the company was to have the use of the new mill so erected for the remainder of the period mentioned in the written lease. This agreement was fully carried out by the plaintiff. Plaintiff alleges that such removal and erection of the new mill, and construction of the railroad switch, cost it over $3,000, and that it had, for a period of 8 years before the commencement of this action, been in the continuous and unchallenged use and occupation of the new mill, and during all of said time paid all taxes and insurance thereon, as well as on all the rest of the leased property. At all times subsequent to the 11th day of October, 1892, and until this action was instituted, in December, 1902, the defendant, Wild, was by appointment of the board of directors the manager of the plaintiff company, and as such was placed in charge and continuously kept in charge of said property and the business of the company. The defendant was an active promotor and one of the organizers of the plaintiff company, an original stockholder, and also a director and vice president, and participated in all its transactions, and during the 10 years the company operated the property was its manager in charge, and during that period received the stipulated royalties on the product manufactured from the material used from his land. On the 9th day of October, 1902, he addressed a communication to the secretary and treasurer of the plaintiff company, wherein he claimed that the company was organized for an unlawful purpose, and because of such unlawful organization the written lease, together with all claim of the plaintiff to or connection with said land and the New Buckhorn Mill, was void, and that he was no longer bound thereby, and announced his intention of severing his relationship with plaintiff, to hold possession of the said mill and property, and to conduct the business theretofore carried on by plaintiff, through him as manager, for his private and individual use and benefit. On November 11, 1902, in a communication addressed to the president of the company, he stated he had resumed possession in his own right of the gypsum mill and of the gypsum quarry or mine, together with all appurtenances, with the intent to use the property exclusively for his own use and benefit, and on the same date mailed to some of the officers of the plaintiff company and to its patrons the following printed notice: ...
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