Hosford v. Metcalf

• Decision Date: 01 February 1901
• Citation: 84 N.W. 1054,113 Iowa 240
• Parties: A. W. HOSFORD et al., Appellants, v. MATTHEW METCALF et al
• Court: Iowa Supreme Court

84 N.W. 1054

113 Iowa 240

A. W. HOSFORD et al., Appellants, v. MATTHEW METCALF et al

Supreme Court of Iowa, Des Moines

February 1, 1901

Appeal from Dubuque District Court.--HON. M. C. MATTHEWS, Judge.

PLAINTIFFS A. W. Hosford, John Southwell, E. T. Goldthrope, and Anton Trieb, partners under the firm name Alpine Street Zinc Mining Company, bring this action against Matthew W. Metcalf, J. W Waters, Frank Coals, Sr., H. L. Lundbeck, John Spensley David Metcalf, and John Alexander, partners under the firm name Avenue Top Mining Company, to enjoin them from mining upon a tract of land known as the "Dillrance Ground." The plaintiffs claim the exclusive right to mine on said land by virtue of written leases to them from the widow and heirs of J. W. Dillrance, deceased, to whom the same was bequeathed; and the defendants claim right by virtue of a grant in parol by said J. W. Dillrance to their grantors. Decree was rendered dismissing the plaintiffs' petition, and for costs, from which they appeal.

Affirmed.

Crane & Hosford for appellants.

McCarthy & Kenline for appellants.

OPINION

GIVEN, C. J.

I.

A brief statement of facts about which there is no dispute will make plain the points in controversy: Mr. J. W. Dillrance owned about one acre in the belt of mineral lands in and near the city of Dubuque. The minerals found in that locality are lead and zinc, the latter consisting in what is called "Black Jack" and "Dry Bone." These minerals are found in crevices or veins generally running east and west 50 to 200 feet below the surface and from 50 to 300 feet apart. On the land immediately north of the Dillrance tract is a crevice called "Avenue Top Crevice," and on the Dillrance land one called the "Black Crevice." About the year 1875 McNulty, Burt & Co. procured mining privileges on the land north of the Dillrance land, and sunk a shaft to the Avenue Top crevice, from the bottom of which shaft they mined east and west along the crevice to considerable distance. Wishing to prospect the land of Mr. Dillrance, and to mine the same if minerals were found in paying quantities, they secured from Mr. Dillrance verbal permission to do so, on certain conditions as to payment of royalty, etc. Having this permission, they proceeded at large expense, and drove an entry from a point in their mine east of the shaft, south 300 foot, to the Black crevice on the Dillrance land. There is some controversy as to the extent that mining was carried forward on the Dillrance land through this entry. The defendants claim to have succeeded to the rights of McNulty, Burt & Co. in their mine, and to prospect and mine on the Dillrance land, through a succession of transfers. We will not inquire as to each of these transfers. It is sufficient to say that under them these defendants have whatever rights McNulty, Burt & Co. would have that were transferable.

II. Appellants' first contention is that the right granted to McNulty, Burt & Co. was to mine for lead ore only, not for zinc ores. It appears that at the time the entry was driven south to the Black crevice there was no demand for the zinc ores, and that the mining in that region was then being prosecuted for lead ore only. Appellants insist that for this reason lead ore only was contemplated by the parties. The utility of Black Jack and Dry Bone for the manufacture of zinc was known, but the price did not then warrant mining these ores; but in time the demand increased, the price went up, and zinc ores were mined as long as the price rendered it profitable, and thus it was abandoned and resumed as the market warranted. Only zinc ores were found in the Black crevice, and, as those ores were not mined therefrom for some years after the crevice was struck, plaintiffs insist that only lead ore was contemplated. The state of the market explains why mining zinc ores was suspended and resumed from time to time. We are satisfied that both Mr. Dillrance and McNulty, Burt & Co. contemplated the mining of zinc ores, as well as lead, under this permission.

III. Appellants' next contention is that the parol license to McNulty, Burt & Co. was a personal privilege founded in personal trust and confidence, and therefore not transferable, and that an attempt to transfer the same forfeited the privilege. While this is true as to merely personal privileges, we think, in view of the facts, that this license to prospect and mine became more than a mere personal privilege. In this case the licensees had, under the license, and without the knowledge and consent of the licensor, expended largely labor and money. This being so the licensor could not revoke the license without refunding the expenditure, and in such case the licensee "would have such an interest in real estate as would entitle him to bring an action in this form [ejectment] to recover it." Beatty v. Gregory, 17 Iowa 109; Upton v. Brazier, 17 Iowa 153; Bush v. Sullivan, 3 Greene 344; Harkness v. Burton, 39 Iowa 101. It is a recognized rule that ejectment may be maintained for corporeal, but not for incorporeal, hereditaments. Beatty v. Gregory, supra. In that case it is held that, the licensee having expended labor and money under his license, his...