Kirk v. Mattier

• Decision Date: 25 May 1897
• Citation: 140 Mo. 23,41 S.W. 252
• Parties: KIRK v. MATTIER et al.
• Court: Missouri Supreme Court

41 S.W. 252

140 Mo. 23

KIRK v. MATTIER et al.

Supreme Court of Missouri, Division No. 2.

May 25, 1897.

MINING LEASES — LICENSES — FORFEITURE — EJECTMENT.

1. An instrument declared that the owner of land "does demise and lease," for mining purposes only, certain land. The grantee was given the right to erect all necessary buildings and machinery, and was required to provide and keep closed gates through which to enter upon and pass off the land. He was to take possession for 10 years, and pay a fixed rent. Held, that the instrument was a lease, and not a mere mining license.

2. Under a mining lease providing that a failure to perform the conditions of the same should end the same, and that thereupon the lessor might enter, the lessor has a right, without demand, to bring ejectment against the lessee on the latter's failure to sink a shaft and continuously work the mine as required by the lease.

Appeal from circuit court, Jasper county; W. M. Robinson, Judge.

Ejectment by James A. Kirk against Sam Mattier and others. From a judgment for defendants, plaintiff appeals. Reversed.

McAntire & Gardner, for appellant. E. C. Crow, for respondents.

GANTT, P. J.

This is an action of ejectment for the following real estate in Jasper county, Mo., to wit: All of the lead, zinc, and other ore substances of that part of said land underneath the surface, and in the shafts thereon, of the S. E. ¼ of the N. E. ¼ of section 33, township 28, range 32, with the exception of a strip of land 400 feet wide running north and south on the west side of said S. E. ¼ of the N. E. ¼, less two mining lots 200 feet square in the northeast corner of said strip; and also all that part of said land underneath the surface of the strip of land 400 feet wide, being the south side of the N. E. ¼ of the N. E. ¼ of section 33, township 28, range 32, and the shafts thereon. Ouster is laid as of November 11, 1893, and damages claimed in the sum of $200. The answer of defendant Bremmerman is a general denial. No answer filed for the other defendants, who appeared to be mere day laborers for defendant Bremmerman. The trial court rendered judgment for the defendant, and plaintiff appeals.

On the trial, plaintiff offered and read in evidence a warranty deed to himself, in due form, properly acknowledged, from John J. Kirk and wife and Stephen P. Kirk and wife to James A. Kirk, the plaintiff, of date October 25, 1882. He also offered testimony showing that he had been in the peaceable possession of all of said lands for 10 years. He then offered and read in evidence the following instrument in writing:

"Mining Lease. This indenture, made on the 13th day of October, 1892, by and between James A. Kirk, of Jasper county, state of Missouri, party of the first part, and Frederick Bremmerman, of Jasper county, state of Missouri, party of the second part, witnesseth, that the party of the first part in consideration of the sum of $1 to him paid, and hereby acknowledged, does by these presents demise and lease unto said party of the second part, his heirs and assigns, for mining purposes only, for the term of ten years from the date above written, the following described real estate in Jasper county, to wit: The S. E. one-fourth of the N. E. one-fourth of section 33, township 28, range 32, with the exception of a strip of land 400 feet wide, running north and south, on the west side of the S. E. one-fourth of the N. E. one-fourth, less two mining lots, 200 feet square, in the northeast corner of said strip; and also a strip of land 400 feet wide off the south side of the N. E. quarter of the N. E. quarter of said section, township, and range, dependent at all times upon the full and proper performance of the following conditions: First. The party of the second part shall, within ten days from date, begin mining said land in good faith, sink a shaft to the depth of 200 feet within 12 months of the date above written, and shall, when required by the first party, place on said land pumps and machinery to drain the same of water so as to permit the efficient mining thereof. Second. Said party of the second part shall mine said land in a good and miner-like manner; shall keep all shafts and drifts well and securely timbered and supported. Mining shall be carried on in good faith continuously, and shall not be suspended at any time, except on account of unavoidable accidents, for a longer period than ten days at any one time, without the written consent of the party of the first part; and the working of said land for one or several days between cessation of work thereon, for ten days at different periods, shall not be construed as a compliance with the terms of this lease. Third. All ores and minerals shall be cleaned and prepared for market, and no rough or crush rock shall be removed therefrom to be cleaned without the written consent of the party of the first part. Fourth. The party of the second part shall keep a correct account of all mineral mined, the amounts and receipts thereof, to whom sold, and the price received therefor, which accounts shall be open to the inspection of the party of the first part at all times. He shall on the first day of each month render to the party of the first part a correct statement of the kind and weights of all minerals sold during the preceding months, to whom sold, and the prices received therefor. Fifth. The party of the second part shall pay on or before the fifth day of each month to the party of the first part, at the Exchange Bank, in Webb City, Mo., 10 per cent. of the price received for all ores sold the preceding month, as royalty thereon. Sixth. The party of the second part shall have the right to erect all necessary buildings and machinery on said land for the purpose of mining and cleaning ores thereon, and to remove the same at the expiration of this lease, except timbering and other improvement necessary to support the ground. Seventh. The party of the second part shall provide necessary gates through which to enter upon and from said land, and at all times to keep the same closed to prevent stock from trespassing upon said land. Eighth. The party of the first part shall have at all times the right to enter all shafts and drifts to see that the requirements of this lease is complied with. And, any time, failure to comply with or perform the requirements and conditions of this lease in good faith shall end and determine the same, and the party of the first part may enter upon and hold said demised premises. In witness whereof, said parties hereto set their hands and seals on the day and year above written. J. A. Kirk. [Seal.] Frederick Bremmerman. [Seal.] Acknowledged Oct.17,1892."

Plaintiff offered evidence tending to show that defendant had not complied with said lease, in that he had not sunk the shaft over 90 feet in the first year, and had not mined it continuously, as agreed. Defendant testified and admitted that he had not dug the shaft as required by the lease the first year, and had failed to mine five and six weeks at a time when times were dull. Plaintiff also offered evidence tending to prove that the lease above set out was not in fact delivered to defendant Bremmerman, but after its execution was placed in escrow with James Stewart, to be delivered to said defendant only on condition that he should sink a shaft 200 feet deep upon the land during the first year, and work it continuously, and, if he failed to do so, the lease was to be void and of no effect, and that, defendant having failed to comply with the terms, the lease did not become operative; that a copy only was furnished defendant, that he might know what conditions he was to comply with, — all of which the court rejected, and plaintiff excepted. At the close of the evidence, plaintiff prayed the court to instruct the jury as follows: "The court declares the law to be that, under the deed introduced in evidence by the plaintiff in this case, he has shown sufficient to vest the title to the whole land described in the petition in him. And the court further declares the law to be that, under the lease introduced in evidence, the mining right in...