Fuhr v. Dean

• Decision Date: 31 October 1857
• Citation: 26 Mo. 116
• Parties: FUHR, Respondent, v. DEAN et al., Appellants.
• Court: Missouri Supreme Court

26 Mo. 116

FUHR, Respondent,

v.DEAN et al., Appellants.

Supreme Court of Missouri.

October Term, 1857.

1. Where one having title to land and a right of entry enters thereon, although the entry be by force, the common law affords no civil remedy to the party dispossessed; he must resort to the statutory remedy by action of forcible entry and detainer.

2. A right of easement can be created only by deed.

3. A right to enter on another's land and to remain there for a certain time, or indefinitely at the pleasure of the party claiming the privilege, is an interest in the land which can only be created by deed.

4. A license can not be revoked so as to make acts done under it trespasses.

Appeal from Washington Circuit Court.

Plaintiff, Frederick Fuhr, set forth in his petition that on the 23d of January, 1854, and for a long time, say two years, prior to that day, he was “legally in possession, for the purpose of mining of lead ore, of a lot of ground in the ‘Gum Diggings,’ in Washington county, about one mile and a half northwest from Potosi, containing one acre, more or less, and set apart from the adjoining ground by stakes,” &c. and, for the purpose of exploring said ground and raising lead ore therefrom, he had at great expense of time and money sunk a shaft upon said lot, and cribbed it up securely with timber; that he had run two drifts from about the bottom of said shaft--one sixty, the other fifteen feet in length--which drifts had exposed the lead ore to view, and from which shaft and drifts he could daily raise a large quantity of ore; that on said 23d day of January, 1854, the defendants unlawfully and with force and violence and against the will of plaintiff entered into said shaft, drifts, &c., belonging to said plaintiff and took possession thereof and expelled the plaintiff therefrom, and are using the said shaft and drifts of plaintiff and raising the lead ore from the said lot and converting it to their own use; and they still have and hold to their own use the lead ore which said plaintiff had dug to the value of thirty-five or forty dollars. “The said plaintiff states that he has sustained damage by the unlawful acts of the said defendants to the amount of $1600; and for the recovery of which sum he brings this suit.”

It appeared in evidence that John Dean was the proprietor of a certain tract of land embracing the lot in controversy; that on the 1st of November, 1853, he sold said land to the Missouri Lead Company, of which defendants were the agents; that Fuhr, the plaintiff, was at that time, and had been for some time previously, in possession of the lot mentioned in the petition; that he was engaged in mining for lead ore; that after the said sale, early in January, 1854, the defendants, as agents of said company, gave notice to said Fuhr to quit said lot; that on the 23d day of January, 1854, the defendants entered and forcibly ejected the plaintiff. The court, of its own motion, instructed the jury as follows: “1. The extent as to quantity and the 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 where 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 and consent of the miner; and if, while such right continues, the proprietor interferes and puts the miner out of his ground, then by such act he becomes a trespasser and is liable in damages for the value of the privilege of which the miner is thus deprived.”

The jury rendered a verdict in favor of plaintiff for three hundred dollars.

Noell, for appellants.

I. The court should have given the instructions asked by the defendants, and erred in giving the first instruction given at its own instance. The plaintiff had no greater interest than a tenant at will. Defendants had a right to terminate the tenancy at any time upon giving reasonable notice. There was no proof of a custom. Besides, no custom can be sustained in opposition to the established rules of law. (R. C. 1845, p. 529; 6 Binn. 417; 1 Wash. C. C. 227; 2 Id. 24; 10 Mass. 29; 3 Watts, 179; 2 Johns. 335; Wright, 573; 1 Hall, 602, 619.) The criterion of damages is wrong. The court instructed, first, that a miner's privilege extends to any length of time he chooses, and second, that whatever may be the value of such privilege, he is entitled to recover. This gives to a mere tenant at will the full value of the fee simple by way of damages for terminating without his consent his tenancy.

Frissell, for respondent.

I. The plaintiff was entitled to a much longer notice to quit. It is conceded that he was a tenant at will. The instructions given were not erroneous.

RICHARDSON, Judge, delivered the opinion of the court.

The action of trespass quare clausum fregit may be maintained on a naked possession against a wrongdoer, but it will not prevail against a party who had the title and right of entry. A defendant can justify under the plea of liberum tenementum, and can...