G. M. Mining Co. v. Hodge

• Decision Date: 14 November 1914
• Docket Number: No. 1265.,1265.
• Parties: G. M. MINING CO. v. HODGE et al.
• Court: Missouri Court of Appeals

170 S.W. 689

185 Mo. A. 138

G. M. MINING CO. v. HODGE et al.

No. 1265.

Springfield Court of Appeals. Missouri.

November 14, 1914.

Motion to Set Aside Judgment and Transfer to Supreme Court Denied November 27, 1914.

1. MINES AND MINERALS (§ 83) — ACTIONS — SUFFICIENCY OF EVIDENCE.

In an action of ejectment, defended on the ground that defendants entered upon the land with plaintiff's knowledge, permission, and consent to dig for ores, and in good faith opened shafts and extended and operated shifts, thus acquiring rights as licensees, evidence in support of this defense held sufficient to sustain a verdict for defendants.

2. COURTS (§ 231) — APPELLATE JURISDICTION — CASES INVOLVING TITLE TO LAND.

The Court of Appeals had jurisdiction of an appeal, in an action of ejectment in which defendants admitted plaintiff's title, but set up rights under Rev. St. 1909, § 8409, providing that when any owner of real estate shall permit any person to enter and dig for lead ore or other minerals thereon with his consent, without complying with section 8408, relative to posting a statement of the terms upon which such lands may be mined or prospected and the time during which the right to mine or prospect shall continue, and such person has so entered by the permission and consent of such owner, and has in good faith dug or opened any shaft, etc., or extended or opened from any shaft any room, drift, etc., he shall have the exclusive right, as against such owner, to continue to mine and dig such shaft, mine, etc., so dug or opened by him for three years, as the statutory mining license has nothing whatever to do with the title to real estate, and confers no interest in the soil containing minerals nor estate or interest in the ungotten minerals.

3. MINES AND MINERALS (§ 83) — MINING LICENSES — STATUTORY PROVISIONS.

Under Rev. St. 1909, § 8409, where a lessee of mineral lands abandoned the lease, and the surrender was accepted by the lessor, and the lessor thereafter, but before the actual delivery to it of the surrendered lease, instead of treating as trespassers persons who had entered with the lessee's consent and engaged in mining, encouraged them to go on with their work, and they did thereafter drive their drifts further and sink the shaft deeper, they thereby acquired a statutory mining license, entitling them to mine the ground and extract ores for the term of three years.

4. LANDLORD AND TENANT (§ 109) — TERMINATION OF LEASE — ABANDONMENT.

Any act amounting to an agreement on the part of a tenant to abandon and on the part of the landlord to resume possession of demised premises amounts to a surrender by operation of law.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by the G. M. Mining Company against James Hodge and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Thomas & Hackney, of Carthage, for appellant. J. D. Harris, of Carthage, for respondents.

FARRINGTON, J.

Ejectment. Plaintiff sought to recover the possession of land in Jasper county, together with damages and the alleged value of monthly rents and profits. Defendants for answer admitted plaintiff's title to the land, but denied its right to possession on the ground that they had theretofore entered upon said land with the knowledge, permission, and consent of the plaintiff to dig for ores, and in good faith dug and opened shafts and extended and operated shifts therefrom and assembled machinery for carrying on mining operations, and thus acquired rights under section 8409, R. S. 1909; that they make no claim to the premises except as licensees; and that, under the statute, they are entitled to mine this ground and extract ores for the term of three years. Verdict and judgment to the effect that defendants are entitled to the possession of the premises. Plaintiff appealed.

The evidence shows that the G. M. Mining Company, the plaintiff and appellant herein, was the owner in fee of the land described in the petition, including lot 36 mentioned in the answer, at all times mentioned in the record; that on June 12, 1912, the G. M. Mining Company executed a mining lease to S. Y. Ramage for a term of ten years from that date on said land; that Ramage entered into possession of the land under the lease about that time and platted the ground into mining lots for miners to enter thereon and mine, but posted no rules governing such mining. Ramage continued mining operations on a portion of the land, through his superintendent, W. B. Shackleford, and in this connection pumped water from the ground and operated a mill thereon. About the 6th or 7th day of July, 1913, while Ramage was still operating under his lease, the defendants entered upon lot 36 of the Ramage plat thereof, with the permission and consent of Shackleford, superintendent for Ramage, and engaged in mining on said lot under the terms of section 8409, Revised Statutes of Missouri 1909.

Mrs. Henrietta Glenn was, at all times mentioned in the record, the president and general manager of the plaintiff, G. M. Mining Company, and seemed to have entire charge and control of its affairs.

Some few days prior to August 18, 1913, W. B. Shackleford, for and on behalf of S. Y. Ramage, notified Mrs. Glenn, when she was on the leased premises, that Mr. Ramage was going to abandon the lease and surrender back the premises. The president of the plaintiff company made no objection to this, and, in pursuance of this determination, the Ramage people stopped operations, and on August 18, 1913, pulled their pumps, abandoned the premises, and surrendered the same to the G. M. Mining Company. On August 28, 1913, the G. M. Mining Company wrote to Mr. Shackleford asking that the lease be surrendered. On September 17, 1913, Shackleford sent the lease in a letter to Mrs. Glenn, explaining that Mr. Ramage (who resided in the East) had delayed forwarding it. Plaintiff gave a notice forfeiting the Ramage lease, and a copy of this notice was posted on lot 36 about September 12, 1913. On the said day the defendants tendered the plaintiff 10 per cent. royalty on an ore sale made that day, which tender was refused. This was the first sale of ore made by the defendants. On September 18, 1913, the day plaintiff received the surrendered lease, written notice was given defendants to surrender to plaintiff the possession of lot 36. This ejectment suit was commenced on September 23, 1913. The defendants continued mining after this, and on October 2, 1913, plaintiff gave defendants notice of an application for an injunction to be heard on October 9, 1913. The injunction was granted on the last-mentioned date. The defendants contended at the trial that, between the date of the pulling of the pumps by Ramage (August 18th or 19th) and the surrender of the lease (September 17th), Mrs. Glenn, president of the plaintiff company, gave her consent to defendants to mine lot 36. There...