G. M. Mining Company v. Hodge
| Decision Date | 14 November 1914 |
| Citation | 170 S.W. 689,185 Mo.App. 138 |
| Parties | G. M. MINING COMPANY, Appellant, v. JAMES HODGE, VIRGIL HODGE, AL WEBB and BAILEY WEBB, Respondents |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division Number Two.--Hon David E. Blair, Judge.
AFFIRMED.
Judgment affirmed.
Thomas & Hackney for appellant.
(1) Jurisdiction of an appeal from a judgment in ejectment is in the Supreme Court and not in the Court of Appeals. Bell v. Winkleman, 73 Mo.App. 451; Mitchell v Blatt, 76 Mo.App. 408; Peters v. Worth, 164 Mo 92; Baker v. Squire, 143 Mo. 92; State ex rel. v. Muench, 225 Mo. 226, following and affirming the 143 Mo. and 164 Mo. supra. (2) The interest and title asserted by defendants in the case at bar is an interest in real estate, as it is the right to dig and remove and sell and dispose of the realty itself (zinc and lead ores) for a period of three years that defendants claim. "A license to work mines . . . confers not only the right to enter and occupy, but to commit waste and carry away part of the realty itself, and is, therefore, necessarily an interest in lands, tenements and hereditaments." Desloge v. Pearce, 38 Mo. 599. (3) To entitle a miner to a statutory mining right under section 8409, R. S. 1909, three things must concur: 1. Permission and consent of the owner for the miner to enter and mine. 2. Actual physical entry; i. e., being let into the actual possession under and by virtue of this consent. 3. The opening up of a mine after such entry and consent in the good faith, reliance upon, and solely in consequence of such consent and entry. Lacking any one of these elements no statutory mining right accrues. The court, therefore, erred in refusing plaintiff's peremptory instruction and erred in giving the instruction authorizing a verdict for the defendants. In re Nagle, 12 N.Y.S. 707; Brunson v. State, 140 Ala. 201, 37 So. 197; Spalding v. Conzelman, 30 Mo. 177; Emmel v. Hayes, 102 Mo. 194. (4) In order to invoke the mining statute, there must be an element of estoppel as against the owner in favor of the miner. Robinson v. Troupe Min. Co., 55 Mo.App. 662. (5) The defendants having entered under Ramage, their continuance in possession even with plaintiff's consent, did not bring them under the mining statute. It is settled law that where one in possession of land verbally contracts with the owner for the land, or a new lease thereon, his merely continuing in possession after the making of the alleged contract, is not an act of performance within the meaning of the rule so as to justify a decree in his favor according to the contract. Spaulding v. Conzelman, 30 Mo. 177; Emmel v. Hayes, 102 Mo. 194; Browne on Stat. of Frauds (3 Ed.), sec. 477; Roberts v. Templeton (Ore.), L.R.A. (N. S.) 790, and note. (6) Even as against Ramage the defendants could not acquire a three-year statutory mining right upon the lot for the reason that the lease to Ramage was never recorded in the recorder's office of Jasper county, and he therefore never came within the category of lessees named in sections 8408 and 8409.
J. D. Harris for respondents.
(1) The title to the land is not in dispute. Defendants merely claim a miner's license under the statute. Under such license they do not even have title to the ore in place. Boone v. Stover, 66 Mo. 434; Foundry & Machine Co. v. Cole, 130 Mo. 6; Hough v. Light & Fuel Co., 127 Mo.App. 570; Arnold v. Bennett, 92 Mo.App. 159. (2) Where in ejectment the title is not in question and simply the right of possession under an easement is in issue, the title is not affected so as to divest the Court of Appeals of jurisdiction over an appeal. Hough v. Light & Fuel Co., 127 Mo.App. 570, and cases cited therein. (3) Defendants merely held a miner's license to enter and dig for ore. Sec. 8409, R. S. 1909; Lytle v. James, 98 Mo.App. 340; Foundry & Mach. Co. v. Cole, 130 Mo. 1; Rochester v. Gate City Mining Co., 86 Mo.App. 447; Arnold v. Bennett, 92 Mo.App. 156. (4) Ejectment is a possessory action; the plaintiff to maintain it must have the right of possession, but be out of it. For it to lie against the defendant, the defendant must be in possession adversely to the plaintiff at the time suit is brought. And since one granting a miner's license, retains the possession and the licensee thereunder does not acquire the possession, ejectment will not lie in favor of the owner of the land, who grants a miner's license to enter and dig for ores thereon, against his licensee. It follows from this that the judgment of the circuit court should be affirmed. Boone v. Stover, 66 Mo. 434; Foundry & Machine Co. v. Cole, 130 Mo. 6; Rochester v. Gate City Mining Co., 86 Mo.App. 447; Zinc Co. v. Amsden, Leonard & Co., 125 Mo.App. 515; Arbuthust v. Land & Mining Co., 115 Mo.App. 600.
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, Revised Statutes 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 sixth or seventh 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 ten 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 is ample evidence offered by the defendants to the effect that Mrs. Glenn was at this place where the defendants were working three or four times a week after August 16 or 17, 1913, one witness testifying that she was there almost every day in August; that defendants were taking ore out of this drift at the times Mrs. Glenn was there. J. A. Webb testified that he went to work on lot 36th about the 16th or 17th of August, 1913, and that she was there something like a week or two after that when they had about twelve or fifteen wagon loads of ore-bearing dirt on top the ground; that at that time she expressed satisfaction with the way they were mining and complimented them on the ore lying out there, and said: ...
To continue reading
Request your trial