Jack Harvard Zinc & Mining Co. v. Continental Zinc & Lead Mining & Smelting Co.
| Decision Date | 04 April 1904 |
| Citation | 80 S.W. 12,106 Mo.App. 66 |
| Parties | JACK HARVARD ZINC AND MINING COMPANY, Respondent, v. THE CONTINENTAL ZINC AND LEAD MINING AND SMELTING COMPANY, et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.
Judgment affirmed.
Thomas & Hackney for appellants.
(1) The plaintiff's petition does not state facts sufficient to constitute any cause of action nor to entitle the plaintiff to an injunction against the defendants preventing the opening and maintaining of the ditch in question. Rochester v. Mining Co., 86 Mo.App. 447; Arnold v. Bennett, 92 Mo.App. 156. (2) The evidence introduced on the trial is wholly insufficient to justify and support the decree of the trial court making the injunction perpetual, and the trial court erred in overruling the motions to dissolve the injunction and in granting the plaintiff the relief prayed. (3) Under the evidence in this case the maintenance and operation of the ditch in question did not interfere with the plaintiff's mining operations on its lots. (4) The plaintiff can not claim the benefits obtained by it by registering under the Continental Company's rules and beginning mining operations thereunder on the mining lots and at the same time repudiate any of the rights reserved by the Continental Company in such license. R. S. 1899, sec. 8766; 18 Am. and Eng. Ency. Law (2 Ed.), pp. 1128, 1134, 1135.
McAntire & Scott for respondent.
(1) The plaintiff's petition does state facts sufficient to constitute a cause of action and entitle the plaintiff to an injunction preventing the opening and maintenance of the ditch in question. High on Injunctions (3 Ed.), sec. 721; Bank v. Kercheval, 65 Mo. 682; Harris Township Board, 22 Mo.App. 465; Bailey v. Wade, 24 Mo.App 190; Lakenan v. Railroad, 36 Mo.App. 372; Heman v. Wade, 74 Mo.App. 339; Sells v. Goodyear, 80 Mo.App. 128; Dug v. Arnold, 75 Mo.App. 68; Mill Company v. Danburg, 8 M. M. R. 528; Iron Co. v Reymert, 7 M. M. R. 528; Wardell v. Watson, 93 Mo. 107. (2) An injunction will lie even for a license where the licensor interferes with his rights under the license during the period of the license. Noble v. Sherman, 151 Ind. 573; Beaty v. Gregory, 17 Iowa 109; Harkness v. Burton, 39 Iowa 101; Boone v Stover, 66 Mo. 430. (3) It is not true as stated by appellant's counsel that the license of plaintiff only consisted of the right of "digging, extracting and cleaning ores," the license extended further than that, everything incident to digging, extracting and cleaning ores was included. Boone v. Stover, 66 Mo. 430; Wardell v. Watson, 93 Mo. 107. (4) While the judgment of the trial court in an equity case where the evidence is oral is not conclusive, yet it will be granted proper deference by the appellate court, since that court hears the testimony of the witnesses and sees their actions on the stand. Shanklin v. McCracken, 151 Mo. 587. And unless he has manifestly disregarded the evidence, the appellate court usually, upon the question of fact, defers to the trial court. Hartley v. Harley, 143 Mo. 216.
This proceeding is by injunction whereby plaintiff seeks to enjoin defendants from causing water, slime and mud to be thrown upon and across certain mining lots where plaintiff was mining lead and zinc as licensee. A temporary injunction was granted which, afterwards, on trial was made perpetual. Defendants appealed.
It appears that defendant, The Continental Zinc and Lead Mining and Smelting Company is the owner in fee of a tract of mining land in Jasper county and the other defendant, the Marion Mining Company, is one of its licensees engaged in mining, and that plaintiff is also one of its licensees and is also engaged in mining on said tract; that the tract of land is divided up into mining lots and that said Continental company has complied with the statute (Revised Statutes 1899, sec. 8766) by posting its mining rules under which miners who register thereunder as provided by the rules and statute are to be governed. Plaintiff duly registered with said Continental company for mining lots 58, 59, 60, 61, 66 and 67, whereby, under the rules aforesaid, plaintiff became entitled to the exclusive right to mine said lots until the thirty-first of December, 1909. That defendant, the Marion Mining Company's lots which it is mining are near by those of plaintiff.
Plaintiff has a number of shafts opened on its lots and it has expensive and costly machinery operating such mines, by which many tons of waste rock is being daily hoisted to the surface and has there to be deposited. That on account of the time plaintiff has been opening its mines and has yet to operate them under the license aforesaid, it does and will need all the surface of its said lots, that it may have the proper profitable enjoyment of its license. That defendants, disregarding plaintiff's rights aforesaid, cut a ditch from a pond located near by, over and across the lots upon which plaintiff was mining, thereby taking a portion of plaintiff's lots which is necessary to it for piling waste rock and tailings. That defendants then discharged water and "sludge" across plaintiff's lots which came out over the surface rendering much of it so wet and so covered with mud as to exclude plaintiff from a proper enjoyment thereof. That plaintiff to protect itself deposited a quantity of rock in said ditch on its lot so as to prevent the flow of water and mud over and across its mining ground. That defendants threaten to remove said obstruction and to continue to flood plaintiff's lots.
The foregoing is the substance of the allegations of the plaintiff's bill and we think, contrary to defendants' contention, that it states ground for relief. Bank v. Kercheval, 65 Mo. 682; Harris v. Township Board, 22 Mo.App. 462; High on Injunctions, sec. 721.
But it is contended by defendants that the relation existing between plaintiff and the Continental company made plaintiff a mere licensee, without such interest or right as to prevent the Continental company from...
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