Davis v. Solomon

• Decision Date: 08 July 1922
• Docket Number: No. 3136.,3136.
• Citation: 243 S.W. 410
• Parties: DAVIS et al. v. SOLOMON et al.
• Court: Missouri Court of Appeals

243 S.W. 410

DAVIS et al. v. SOLOMON et al.

No. 3136.

Springfield Court of Appeals. Missouri.

July 8, 1922.

guilty of any conduct thereafter that induced them to remain, though they dealt with such son in good faith, believing him the owner, as against whom, or persons claiming under him, one entering by his permission or consent without his having complied with Rev. St. 1919, § 7436, relating to notice, may continue to mine and prospect for three years from the date of such permit, as provided by section 7437.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Suit by J. B. Davis and another against Quint Solomon and others. From orders dissolving a temporary injunction and dismissing the bill, plaintiffs appeal. Reversed and remanded, with directions.

Howard Gray, of Carthage, for appellants. S. W. Bates, of Webb City, for respondents.

BRADLEY, J.

Plaintiffs sought to enjoin defendants from trespassing on their land. A temporary writ was issued, but, on trial, the temporary writ was dissolved, and plaintiffs' bill dismissed. Failing in their efforts to obtain a new trial, plaintiffs appealed.

Plaintiffs, husband and wife, on March 28, 1921, purchased 160 acres of land in jasper county from Laura F. Thomas. Warranty deed was executed on that day, and duly acknowledged on April 7th, and filed for record April 20th. On March 18th, defendants, according to their evidence, obtained the consent of Franklin Greenwood, son of Laura F. Thomas, to go upon this land to prospect for minerals. Defendants entered upon the land for the purpose of searching for minerals March 21st, and found some lead on a certain 40. They found lead at two places and were prospecting in a third place, all near each other, when the temporary writ was served about April 18th.

The court found: That, at the time defendants entered upon the land, Mrs. Thomas was the owner, and that she had not given defendants permission to enter and prospect or mine on the land. That there is no "evidence that Mrs. Thomas knew that defendants were prospecting on the land. That, before defendants entered upon said land, they consulted Franklin Greenwood, the son of Mrs. Thomas, believing him to be the owner. That before plaintiffs purchased, the plaintiff J. B. Davis had learned from one Hart that lead ores had been discovered on said land and that some persons were on the land prospecting and mining. That Hart had been on the land and had seen the men mining and producing lead ores. That Hart was an old miner and solicited plaintiff J. B. Davis to purchase the land and let him (Hart) mine it, and that Davis consented, and purchased, for the purpose of having the land mined by Hart. That, after the purchase, plaintiff J. B. Davis, in company with Hart, went to the place where defendants were engaged in the work of prospecting and mining, and ordered them to cease work and get off the land, and was informed by defendants that they refused to comply with this order, that they had rights on the land and would resist being put off and would continue to mine thereon and asserted their rights to do so.

"That thereupon said plaintiff took the position and asserted to defendants that, while he did not doubt their rights and gloried in their spunk to assert them, yet he had bought the land and had a clear title and intended to put them off, and that they could make some one pay them for their rights. The court finds that, by taking this position, said plaintiffs encouraged the defendants to continue to remain on said land and to continue to assert mining rights therein, and therefore did not come into court with clean hands, and the plaintiffs are not entitled to maintain the suit and the court finds the issues for the defendants."

Defendants attempt to support the order of dismissal on two theories, first, that, if plaintiffs have any remedy, it is in ejectment or some other remedy at law, and not by injunction; second, that plaintiffs are estopped to complain.

If plaintiffs have an adequate remedy at law, then they cannot have redress in a court of equity, and we will first dispose of that question. The land in question is farm land and was used as such. Defendants claimed only the right to mine on the middle 40. Three 40's lie end to end, and then a 10-acre strip immediately west. If defendants had a lawful right to open mines on the 40 acres as, claimed by them, then the location of the 40 would not be of consequence. But, if they have no such right, then the location of the 40 acres would, we think, be of some importance in determining whether plaintiff may have redress by injunction. The prospecting and mining, whatever was done, and in progress, required a way of ingress and egress. Just how such might affect the land is not stressed in the record, but is mentioned. But aside from this feature we think that injunction will lie here. 14 Ruling Case Law, p. 444, lays down the general rule that, where the trespass complained of tends to the impairment or destruction of the substance of the estate as it has been held and enjoyed by the complainant, the injury caused thereby is regarded as irreparable; that trespasses committed by digging into mines of coal or precious metals and carrying away their valuable deposits or the cutting of timber are regarded as such injuries that will justify injunctive relief. Such injuries subtract, the text says, from the very substance of the estate and tend to its ultimate destruction, and that equity is prompt to restrain them on a proper showing. In Landrum v. McMinds, 205 Mo. App. 66, 218 S. W. 899, and in the concurring opinion of Sturgis, P. J., in Stough v. Steelville Electric Light & Power Co., 206 Mo. App. 85, 226 S. W. 295, the field of injunctive relief was discussed and considered by this court. It is sufficient to say here that we are of the opinion that injunction will lie in the instant case.

The question of remedy disposed of, we take up the second question, to wit: Are plaintiffs estoppel? Defendants do not in terms plead estoppel, but we will pass that, and consider that the question is properly presented. The learned chancellor ruled that, by reason of the fact that plaintiff J. B. Davis...