Desloge v. Pearce

• Citation: 38 Mo. 588
• Parties: C. A. DESLOGE et als., Defendants in Error, v. PEARCE & WILLOUGHBY, Plaintiffs in Error.
• Decision Date: 31 October 1866
• Court: United States State Supreme Court of Missouri

38 Mo. 588

C. A. DESLOGE et als., Defendants in Error,

v.PEARCE & WILLOUGHBY, Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1866.

Error to Washington Circuit Court.

This was a suit of ejectment, instituted by plaintiffs as heirs of Firman Desloge, to recover the possession of a piece of ground, about one-half of an acre in extent, the orifice or landing-place of a shaft known as Pearce & Willoughby's shaft. It also includes a prayer that defendants be restrained from taking out the mineral from the shaft, the plaintiffs, as owners of the land claiming to be the owners not only of the mine, but of the right to work it. The plaintiffs gave six months' notice to quit before bringing their suit.

Defendants relied upon the general custom of the country which they established to have existed during French and Spanish times, and to have continued down to the present time, whereby a distinction is made in the proprietary title to the fee of the land and the miner's right to dig for mineral. By the custom, any one could go upon lands thrown open to mining and ““prospect;” and if successful, could then mine, and was entitled to a certain space of the surface land around the shaft, paying, by way of rent to the proprietor of the fee, a certain percentage of the ore; which ore (by a custom grown up since 1849) was left by the miner for the proprietor in the hands of the smelter to whom he sold his ore.

The custom established certain rules whereby the miner was compelled to work the mine with diligence or forfeit his rights, but which need not be mentioned here inasmuch as the court in its instructions ignored the custom.

The testimony for the defence proved clearly, not only that this custom was general throughout the mining districts, but that defendant Pearce as early as 1835 commenced these mines and had continued them up to the institution of the suit, the defendant Willoughby having been associated with him since 1842; that during all this period the custom had been observed between the defendants, of the one part, and Firman Desloge, ancestor of the plaintiffs; Desloge accepting the rent in ore delivered to the smelters, and refusing to sell his title to the lands except upon the express understanding that he did not sell the miners' right of defendants.

Jones had, previously to the defendants, prospected and mined these same lands, but unsuccessfully.

The court of its own motion gave the following instructions, to which the defendants excepted:

The jury are further instructed that if they believe from the evidence that Firman Desloge, the ancestor of the plaintiffs, gave permission to the defendants to enter upon said tract of land, to dig and prospect for mineral, and that the defendants did, by reason of said permission, enter upon said tract of land and expend large sums of money in prospecting, sinking shafts, & c., then the license so granted is executed, and is not revocable at the will of the grantor or those claiming under him, and the jury will find for the defendants unless it is proven that the plaintiffs have given three months' notice to the defendants to quit, and offered to pay them all necessary expenses they have incurred in digging of shafts, &c. But they will take into consideration the length of time the defendants have had to work out their claim and the profits made by them from the mineral dug out of the same; and if they find that the profits exceeded the expenses, and that the defendants have been rewarded for their labor and risk, then the plaintiffs are not bound to give the notice to quit.

The defendants asked of the court to give the following instructions, to-wit:

1. If the jury believe that there was no special arrangement between the ancestor of the plaintiffs and the defendants for the payment of the rent on the mineral raised, through the smelter at Perry's Furnace or other purchasers of the mineral, but that they should find that such was the custom, and that the defendants did after the death of the plaintiffs' ancestor cause the rents due on all the mineral raised on the land in question to be so returned, with directions for the same to be paid to those entitled, then plaintiffs cannot recover for rents in this action.

2. The jury are instructed that the extent as to quantity and duration in point of time of a miner's right, in the absence of any special arrangement between the miner and the proprietor, is a matter to be determined and regulated by the custom prevailing in that behalf in the particular locality where the right attaches; and when it appears that such right has attached with the consent of the proprietor, then it continues and is obligatory upon all persons claiming under such proprietor until forfeited or otherwise determined by the act or consent of the miner; and if the jury find that such right existed in the defendants at the time of the com mencement of this action, then the plaintiffs cannot recover, and they will find for the defendants.

3. If the jury believe that the ancestor of the plaintiffs made arrangements with the defendants for the rents due on the mineral raised on his land by defendants, to be retained in the hands of the smelter at the Perry Furnace, and that the defendants complied with that arrangement after the death of plaintiffs' ancestor up to the bringing of this suit, then they cannot recover for rents in this action.

Which instructions the court refused to give, to which refusal the defendants excepted.

The jury having found a verdict for the plaintiffs, defendants moved for a new trial for the errors of the court in the instructions given and refused.

Garesche & Mead, for plaintiffs in error.

I. Simply as a question of tenancy, and without reference to the custom, the case should be reversed. For “a general letting without any limitation as to time, although the payment of the rent be quarterly or monthly, is in construction of law a letting from year to year.” A tenancy at will must be created by express contract, for if the terms are indefinite it will be a tenancy from year to year. In the absence of proof, the legal presumption remains that the tenancy is a yearly one--Ridgeley v. Stillwell, 25 Mo. 571, and cases there cited; Tayl. Land. & Ten. p. 35, §§ 59 & 60.

To terminate the tenancy, a notice should have been given of not less than three months next before the end of the year--R. C. 1865, p. 739, § 12; R. C. 1855, p. 1012, § 12.

A notice is insufficient if not given at least three months prior to the period of the year at which the tenancy commenced--Tayl. Land. & Ten. p. 310, § 475.

The proof was that notice was given six months before the suit was brought, and the 6th instruction for the plaintiffs is therefore evidently erroneous.

II. The custom, limiting as it did the miner's right to “surface land”-- imposing upon him a percentage of the ore as a toll to the proprietor--and requiring the diligent working of the mine--was reasonable. It is a common occurrence in mining districts for the ownership of the land to be vested in one person, and the ownership of the mines in another.

“In all freehold lands, an adverse claim to the mineral” must be distinctly established against the owner of the surface. This may be effected by documentary evidence; or, in the absence of documentary evidence, or in opposition to such evidence, a title to them may be made out by proofs of acts of ownership and length of possession--Bainb. on Mines, p. 5; Stewart v. Chadwick, 8 Clarke (Iowa), 468.

By custom, a title can be acquired to mines--74 Law Lib., Coll. on Mines, p. 21, § 17; Bainb. on Mines, 28.

In Curtis v. Daniel, 10 East. 273. Ld. Ellenborough says: “Why there may not be two customs, one for the lord of the manor to have tin, and another for these tenants to have the copper under their estates, and waste in question.”“The usage which establishes the right of the lord will also that of the tenant; and here has been an adverse possession of the copper mines by these tenants for above twenty years past.”

In Barnes v. Mawson, 1 Maule & Sel. 77, by Ld. Ellenborough--“that one may have a freehold title to the land, and another the exclusive right of the mines in it. And that he could show by evidence of general reputation, as well as acts of taking coal under the lands of other freeholders within the same boundary, that the right to the coal was in the lord.”

A custom like that upheld by appellants exists in Cornwall, and was good-- Rogers v. Brenton, 10 Q. B. 26; Adol. & Ell. (N. S.) 40; Coll. on Mines, pp. 22-41; Bainb. Mines, pp. 456 & 468; McGarrity v. Byrington, 12 Cal. 427.

III. No evidence being offered of the particular demise to defendants, recourse must be had to the custom to define it.

Every demise between landlord and tenant in respect to matters in which the parties are silent, may be fairly open to explanation, by the general usage of the country, or the district where the land lies. Every person under such circumstances is supposed to be cognizant of this custom and to contract with a tacit reference to it. Hence a tenant could remove valuable buildings--Van Ness v. Paccard, 2 Pet. 148; Keagh v. Daniel, 12 Wis. 163.

Local custom is admitted to explain the termination of a written lease--Wilcox v. Wood, 9 Wend. 349; (Parol lease) Moore v. Eason, 11 Ired. 568. So in case of a written lease custom may be shown that the tenant is entitled to the waygoing crop--Stultz v. Dickey, 5 Binn. 285; also Foster et als. v. Robinson, 6 Ohio, (N. S.) 95, and cases quoted; Templeman v. Biddle, 1 Harr. 522. Or, to be paid for his labor on the land--Womersley & Dally, 40 Eng. L. & Eq. 488.

Parties are always presumed to contract with reference to a general custom or usage--Bartin v. McKelway, 2 Zab. 175; Soutier v. Kellermon, 18 Mo. 509; Martin v. Hall, 26 Mo. 386. And where hiring was general, term fixed by the custom--Gleason v. Walsh, 43 Me. 397.

Mining claims are held by possession, but that possession is defined by usage...