Davis v. Byrd

• Decision Date: 15 February 1945
• Citation: 185 S.W.2d 866,238 Mo.App. 581
• Parties: R. H. Davis, Appellant, v. R. A. Byrd, O. H. Byrd, Lorrell Smith, et al., Respondents
• Court: Missouri Court of Appeals

185 S.W.2d 866

238 Mo.App. 581

R. H. Davis, Appellant, v. R. A. Byrd, O. H. Byrd, Lorrell Smith, et al., Respondents

Court of Appeals of Missouri, Springfield District

February 15, 1945

Appeal from Circuit Court of Jasper County, Division 1; Hon. Ray E Watson, Judge.

Affirmed.

Roy Coyne and R. H. Davis for appellant.

It is trespass for one cotenant or his lessee to mine real estate and to sell and dispose of the ores mined therefrom without the consent of his cotenant, and injunction will lie to enjoin and restrain the further mining of the property. Kansas City Southern Ry. Co. v. Sandlin, 173 Mo.App 384; Law v. Heack Oil Co., 145 S.E. 601; Paxton v. Oil Co., 94 S.E. 472; Anderson v. Horse Creek etc., Oil Co., 94 S.E. 716; Williams v. Jones, 27 S.E. 411; Strothers v. Cooperage Co., 116 Mo.App. 518; Zeigler v. Brenneman, 86 N.E. 597; Cecil v. Clark, 35 S.E. 11; Clark v. Whitfield, 105 So. 200, l. c. 206; Jaster Land Co. v. Manchester Saw Mills, 96 So. 417. The petition makes a prima-facie case of trespass by defendants Byrd and Smith, and the demurrer was improperly sustained, and the cause should be reversed and remanded for trial. Crane v. Wabash Ry. Co., 82 Mo. 588; State ex rel. v. Hallen, 260 Mo. 145; Hardesty v. Schaffer, 139 S.W.2d 1031. A plaintiff is not required to anticipate in his petition any possible or particular defense that might suggest itself to the mind of counsel for defense, especially where it is a question of fact. Span v. Coal & Mining Co., 322 Mo. 158, 16 S.W.2d 190; Sayer v. Wabash Ry. Co., 156 Mo. 468, l. c. 478; Bliss on Code Pleading (1st Ed.), sec. 200. Injunction is the proper remedy in all cases, to prevent the doing of a legal wrong whatever to real or personal property, whenever in the opinion of the court an adequate remedy can not be afforded by an action for damages. Sec. 1683, R. S. 1939. An action at law to recover damages for one cotenant to mine the common property without the consent of his cotenant is not an adequate remedy to prevent or redress a continuation of the trespass or continuing wrong, such as mining the property and selling of the ores mined. Hobart Tie Co. v. Stone, 135 Mo.App. 438; Metropolitan Land Co. v. Manning, 98 Mo.App. 248. And insolvency in such cases does not, under said Sec. 1683, R. S. 1939, have to be pleaded or proved. Teachout v. Clough, 143 Mo.App. 474; Palmer v. Crisle, 92 Mo.App. 513. And injunction will lie to prevent a multiplicity of suits. 32 C. J., sec. 33, p. 55; Metropolitan Land Co. v. Manning, 98 Mo.App. 248, l. c. 257; Strother v. American Cooperage Co., 116 Mo.App. 518, l. c. 525, 526.

Vern E. Thompson and Loyd E. Roberts for respondents.

A general demurrer in an equity action should be sustained when it appears that the only allegation in the petition upon which a judgment could be based is an allegation of a law action. Planet Property & Financial Co. v. St. Louis, O. H. & C. Ry. Co., 115 Mo. 613, 22 S.W. 616. One tenant in common cannot be guilty of trespass upon the common property unless he shall exclude his cotenant. Prairie Oil & Gas Company v. Allen (8 C. C. A.), 2 F.2d 556. A tenant in common has the right to mine the common property, so long as he does not exclude his co-tenant, and the extraction of the minerals does not constitute waste. 1 Barringer & Adams, "The Law of Mines & Mining, pages 18, 19; Clowser v. Joplin Mining Co. (Mo., 1877), Fed. & Cas. No. 2908A; Watson v. Union Red U. Gray Gravel Co., 50 Mo.App. 635; McCord v. Oakland Quicksilver Mining Company (Colo.), 27 P. 863. Minerals lying in and under the land constitute profits a prendre, the removal of which does not constitute waste. Black v. Elkhorn Mining Co., 49 F. 549, 551. The extraction of minerals constitutes the useful enjoyment of the property and not its destruction. Prairie Oil & Gas Company v. Allen, 2 F.2d 556; Graham et al. v. Pierce, 19 Grat. (Va.) 28; Job v. Potton, L. R. 20 Eq. 84, 93, 14 Morr. Min. Rep. 329; New Domain Oil & Gas Co. v. McKinney et al., 188 Ky. 183, 221 S.W. 245, 250; Compton v. People's Gas Co., 75 Kan. 572, 89 P. 1039, 10 L. R. A. (N. S.) 787; Silver King Coalition Mines Co. v. Silver King Consol. Min. Co. (C. C. A. 8), 204 F. 166, 122 C. C. A. 402, Ann. Cas. 1918B, 571.

Fulbright, J. Blair, P. J., concurs in result, in separate opinion; Vandeventer, J., not sitting.

OPINION

FULBRIGHT

This is a proceeding by injunction, the purpose of which is to restrain and permanently enjoin defendants from prospecting, mining and removing mineral ore from certain tracts of land. To plaintiff's petition defendants Byrd, Smith, Long and Richards filed their general demurrer for the reason "that said petition does not state facts sufficient to constitute a cause of action." The demurrer was sustained by the court and plaintiff, electing to stand on his petition, refused to plead further. Whereupon, the court dismissed the cause and plaintiff duly appeals.

Since the sufficiency of the petition is the issue to be determined we deem it proper to set it out in full, omitting caption and signatures:

"Plaintiff for his cause of action states that he is now and was at all of the times herein mentioned, the owner of an undivided one-half interest in and to the north east quarter of Section 19, Township 28, Range 32, that is not platted and laid out in city lots, in Jasper County, Missouri, upon said northeast quarter are located miscellaneous lots 2 and 4, said lots having been platted under either the authority of the City of Webb City, Missouri, or of the County of Jasper, State of Missouri, for the purpose of taxation; that defendants Hendrickson and Hendrickson are the owners of an undivided one-fourth each in and to said above described real estate. Plaintiff further states that defendants Byrd and Byrd and defendant Smith, without any authority or permission from plaintiff, on or about the day of , 19 , entered into and upon said lots above described, and commenced prospecting and mining said lots 3 and 4 for the lead and zinc ores therein contained, and have up to the present time continued to prospect and mine said lots, and to extract and take therefrom all lead and zinc ores located and found in said lots, and have been selling and disposing of all ores mined and taken from said lots and converting the proceeds thereof to their own use and benefit.

"Plaintiff further states that defendants Byrd and Byrd and defendant Smith claim and assert that they are prospecting and mining said lots 3 and 4 under either a contract for a lease or a lease of said lots from defendants Long and Richards and Hendrickson and Hendrickson.

"Plaintiff further states that such contract or contracts or lease or leases, if any, are as to plaintiff null and void and of no force or effect, and that they have no legal right to mine and prospect said lots and to take from said lots the mineral ores found therein, against the will of the plaintiff. Plaintiff further states that defendants Long and Richards have no right, title or interest in and to said lots or any part thereof, and that all contracts and leases, if any, given by them to defendants Byrd and Byrd and Smith are, as to plaintiff, null and void and of no force and effect.

"Plaintiff further states that defendants O. H. Byrd and Smith are wholly insolvent and have no property subject to attachment or execution; that defendant R. A. Byrd is a non-resident of the State of Missouri, and has no property in the State of Missouri, subject to attachment or execution; that defendant C. N. Hendrickson is a nonresident of the State of Missouri, and cannot be served in this State with the ordinary process of law, and that defendant R. A. Byrd is also a non-resident of the State of Missouri, and cannot be served in said State with the ordinary process of law. Wherefore, plaintiff prays the court to permanently enjoin and prohibits defendants Byrd and Byrd and Smith from prospecting and mining said lots 3 and 4 and from selling and disposing of the ores mined and extracted therefrom and from selling and disposing of them and from all other relief to which plaintiff may be entitled under the pleadings and evidence in the case."

Since the pleadings clearly reveal the issues no further statement is required.

"By filing their demurrer defendants admit all the material allegations of the petition and if, when taken as a whole, the petition states a cause of action the demurrer was improperly sustained, but if, admitting all of the allegations in the petition to be true, plaintiff has a complete and adequate remedy at law, the demurrer should be sustained. [Planet Property & Financial Co. v. St. L., O. H. & C. Ry. Co., 115 Mo. 613, l. c. 619, 22 S.W. 616, l. c. 617.]

It must be kept in mind that the parties hereto, according to the allegations of the petition, are tenants in common of mineral lands. Plaintiff contends that "it is trespass for one cotenant or his lessee to mine real estate and to sell and dispose of ores mined therefrom without the consent of his cotenant, and injunction will lie to enjoin and restrain the further mining of the property." His theory is that a tenant in common, regardless of the extent of his interest may prevent the mining of mineral lands by refusing to join his cotenant in the enterprise, and that said cotenant cannot mine the land himself or through lessees, even though in so doing such cotenant or his lessees do not exclude or attempt to exclude their tenant in common from exercising the same rights and privileges. Such a rule, of necessity, must be based on the theory that one cotenant entering upon and mining the common property against the will of the other, is a trespasser and that the digging into the soil and removing ore therefrom constitutes waste. We find no...