Gates v. Steckel
| Decision Date | 11 December 1913 |
| Parties | HATTIE GATES et al., Defendants in Error, v. PHILLIP STECKEL et al., Plaintiffs in Error |
| Court | Missouri Court of Appeals |
Writ of Error to Jasper County Circuit Court, Division Number One--Hon. Joseph D. Perkins, Judge.
AFFIRMED.
Judgment affirmed.
A. G Young for plaintiffs in error.
(1) A license is a contract, and a licensee has a right to enjoy it as long as he complies with its terms. Boone v Stover, 66 Mo. 430; Sheppard v. Drake, 61 Mo.App. 134; Mining Co. v. Felton, 78 Mo.App. 210; Lytle v. James, 98 Mo.App. 342; Mining Co. v Mining Co., 106 Mo.App. 66. (2) It makes little difference in this case whether the contract introduced in evidence is a lease or license. It is reduced to writing, and was to remain in force for five years, and could only be forfeited upon a failure by plaintiff to comply with its terms. A license reduced to writing and signed by the licensor gives the licensee a permanent interest in the land. White on Mines, sec. 193; Fuhr v. Dean, 26 Mo. 120; Deslogue v. Pearce, 38 Mo. 395; Boone v. Stover, 66 Mo. 430; Woodside v. Ciceroni, 3 F. 1. (3) If a license has been acted upon and expense incurred under it, it cannot be revoked. 18 Am. & Eng. Ency. of Law (2 Ed.), 1145; Harrelson v. Railroad, 151 Mo. 482; Gibson v. Mech. Assn., 33 Mo.App. 180; School District v. Lindsay, 47 Mo.App. 134.
R. A. Mooneyham for defendants in error.
(1) A mining licensee is without possessory right and cannot maintain forcible entry and detainer or trespass, and has no legal remedy for injuries to the possession. Zinc Co. v. Amsdan, 125 Mo.App. 512. (2) There is an important distinction between a lease of mining property and a mere license to work the same. Under a lease the lessee has a corporal interest in the land which would enable him to maintain the action of ejectment, while a licensee is a mere incorporeal hereditament giving the licensee the right of ingress and egrees to take the ore from the land of the licensor, or some other right agreed upon between the parties to be exercised in the land of the licensor. Supply Co. v. West, 149 Mo.App. 93, and cases cited; Springfield F. & M. Co. v. Cole, 130 Mo. 1; Austin v. Coal Co., 72 Mo. 535; Kirk v. Mattire, 140 Mo. 23; Boon v. Stover, 66 Mo. 430; Chenowich v. Mining Co., 74 Mo. 174; Lunsford v. La Motte, 54 Mo. 426. (3) The licensor has no implied power over the persons or property of the licensee, but he can hold the latter to a strict performance of the conditions of the license and can revoke the license for a breach of the conditions by the licensee. Boon v. Stover, 66 Mo. 430; Chenowich v. Mining Co., 74 Mo. 174; Lunsford v. La Motte, 54 Mo. 426. (4) The right to declare a forfeiture expressly reserved in the lease is equivalent to a reservation of the rights to re-enter. Geer v. Zinc Co., 126 Mo.App. 187, and cases cited; Messer Smith v. Messer Smith, S. 22 Mo. 369; Walker v. Engler, 30 Mo. 130; Clark v. Brookfield, 81 Mo. 503. (5) A mining licensee is without possessory right and cannot maintain forcible entry and detainer or trespass, and in short is without any legal remedy whatever for injuries to the possession. Zinc Co. v. Amsdan, 125 Mo.App. 515; Lytle v. James, 98 Mo.App. 337; Lowe v. Zinc Co., 89 Mo.App. 680; Rochester v. Mining Co., 86 Mo.App. 447.
Robertson, P. J., not sitting.
In this equitable proceeding the trial court after hearing all the evidence set aside a forfeiture of a mining license made by the defendants, Hough and wife, to the plaintiff Hattie Gates and her associates. Hough and wife as owners of the land granted to plaintiffs a license to mine thereon for a term of five years from October 12, 1911, and declared the same forfeited on December 7, 1911, and thereby terminated the right of said licensees to further mine on said land. The defendant licensors sought in the trial court to justify their action in this respect on the grounds that plaintiffs had violated the terms and conditions of their mining license in failing to do continuous mining, in failing to pay the royalties when due and in assigning an interest in such license without the consent of the licensors. Without setting out the terms and conditions of the mining license in question it is sufficient to say that the same contained provisions of this character and also a provision that any failure to comply with the terms and conditions of the license in good faith shall end and determine the same and the first parties may enter upon said land without proceedings at law.
The trial court, after hearing all the evidence, found that the plaintiff licensees had not violated any of the terms or conditions of the mining license in such manner as to warrant the forfeiture declared by the defendant landowners. The questions raised are largely questions of fact and, after reading the evidence, we find ourselves in accord with the result reached by the trial court.
While plaintiffs were mere licensees and acquired no estate or interest in the land, mines or mineral and had no possession sufficient to enable them to maintain any possessory action, Joplin Supply Co. v. West, 149 Mo.App. 78, 93, 130 S.W. 156, and cases there cited, yet, their right to mine on this land could not be revoked at will and, having substantial rights which the law will protect, they could not be arbitrarily deprived of their rights under the license in the absence of some substantial violation of the terms and conditions imposed on them by such mining license. [Bingo Mining Co. v. Felton, 78 Mo.App. 210; Boone v. Stover, 66 Mo. 430; Mining Co. v. Mining Co., 106 Mo.App. 66, 80 S.W. 12.]
The plaintiffs after obtaining the mining license in question at once commenced sinking a shaft and did sink a suitable mining shaft to the depth of about ninety feet at an outlay of about $ 600. Only a small amount of mineral ore was taken from the mine prior to the forfeiture in question, but a more or less promising "prospect" was discovered. The mining license provides that the ownership of all ores mined shall be and remain in the first parties (licensors) and that payment for same when sold shall be made to the said first parties. It seems to be conceded, however that the second parties were given special permission to clean and market the small amount of ore mined and that they realized therefrom about thirty-three dollars, of which there was due the licensors $ 4.30, as royalty. The nonpayment of this small amount of royalty is one of the grounds of forfeiture. It is not shown just how long before the forfeiture was declared that this mineral was marketed but there is evidence that at the time of the sale the amount necessary to pay the royalty was carefully set aside and kept ready by one of the licensees to pay the landowners and that he informed the landowners of this fact and, not having the money then present, offered to go and get it and make the payment but was assured that it was...
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