Lockwood v. Lunsford

• Decision Date: 31 March 1874
• Citation: 56 Mo. 68
• Parties: RADCLIFFE B. LOCKWOOD AND WILLIAM A. SCOTT, Defendants in Error, v. AMOS LUNSFORD, Plaintiff in Error.
• Court: Missouri Supreme Court

56 Mo. 68

RADCLIFFE B. LOCKWOOD AND WILLIAM A. SCOTT, Defendants in Error,

v.AMOS LUNSFORD, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1874.

Error to Madison Circuit Court.

W. N. Nolle and M. L. Clardy, for Plaintiff in Error.

I. The holding of defendant was a tenancy for mining, and not a pure tenancy at will. (1 Washb. R. P., 395, § 1, et seq. [2nd Ed.]; Kerr vs. Clark, 19 Mo., 132; Williams vs. Deriar, 31 Mo., 15; Tayl. Land. & Ten., 14.) Hence a notice to quit and the fixing of a time when the tenancy would cease were necessary. These acts do not appear to have been done. Therefore, the petition does not show that the plaintiff in error was at any time a trespasser. (2 Wagn. Stat., 879 §§ 12, 13; 1 Washb. R. P., 392, § 35 [2nd Ed.], id. 400, § 18; Williams vs. Deriar, supra, et seq.;Ridgely, vs. Stillwell, 25 Mo., 570.)

II. If defendants' right was a mere license, it is shown by the proof to have been an established one which carried an interest in the land.

III. Plaintiff's petition shows that he had his remedies at aw, in trover, replevin, or covenant of seizin, quiet enjoyment, etc.

IV. The petition creates a reasonable doubt as to the validity of the title, and the answer puts it in issue. Hence, plaintiff should bring his action at law, and the injunctions should be dissolved. (1 Washb. R. P., 126, § 61, [2nd Ed.]; Hackensack Imp. Co. vs. N. J. Midland R. Co., 22 N. J., 94; Walker's Reports, [Miss.,] 176; 1 Howard's Reports, [Miss.,] 108; Nonday vs. Rowe, 19 Vesey, 153, 4 Johns. Chy., 21; Echelcamp vs. Schrader, 45 Mo., 505; Hill. Inj., 21, §§ 35, 36.)

B. Benson Cahoon, for Defendants in Error.

I. It is now well settled that where a trespasser digs into and works a mine to the injury of the owner, an injunction will be granted, because it operates a permanent injury to the property as a mine. (See cases cited in 7 Ves., 308; Mitchell vs. Dors, 6 Ves., 147; Smith vs. Collyer, 2 Ves., 90; Grey vs. Duke of Northumberland, 17 Ves. 281; Falmouth [Lord] vs. Inneys, Mosely, 87, 89; 2 Sto. Eq. Jur., § 929.)

II. The rules and regulations, and the register, gave to respondent but a simple license. (Cook vs. Stearns, 11 Mass., 533;Taylor vs. Waters, 7 Taunt., 374; Mumford vs. Whitney, 15 Wend., 380; Wolfe vs. Frost, 4 Sandf. Ch., 72; Bridges vs. Purcell, 1 Dev. B. L., 496; 3 Kent Com., 452; 1 Washb. R. P., 542; Doolittle vs. Eddy, 7 Barb., 74; Morse vs. Copeland, 2 Gray, 302; Jackson & Sharp Co. vs. The P. W. & B. R. R. Co., 11 Amer. Law Reg. [[[[[or the June No. of 1872], p. 380; Wood vs. Leadbitter, 13 M. & W., 838; 1 Washb. R. P., § 3, p. 543; 3 Kent's Com., 452; Tillotson vs. Preston, 7 Johns. Ch., 285.)

John F. Bush, for Defendants in Error.

I. Equity interferes by injunction, and restrains tortious and wrongful mining by one person on lands of another, for the purpose of preventing the destruction and preserving the estate. (Thomas vs. Oaksley, 18 Ves., 186; Hanson vs. Gardner, 7 Ves., 305 (notes); Earl Cowper vs. Baker, 17 Ves., 128; Gray vs. Duke of Northumberland, 17 Ves., 281 Mitchel vs. Dors, 6 Ves., 147; 2 Eden Inj., 231-34, and notes; Willard's Eq. Juris., 382; 2 Sto. Eq., 929; James vs. Dixon, 20 Mo., 79; Eckelcamp vs. Schrader, 45 Mo., 505; Weigel vs. Walsh, 45 Mo., 560; Burgess vs. Cattleman, 41 Mo., 480; Merced Mining Co. vs. Fremont, 7 Cal. supra, 317.)

II. Lunsford's right was a mere license and subject to revocation. (Houx vs. Seat, 26 Mo., 178; Prince vs. Case, 10 Conn., 375; Ruggles vs. Lessure, 24 Pick., 187; Wood vs. Leadbitter, 13 M. & W., 838; Dean vs. Fuhr, 26 Mo., 116; Bainbridge on Mines, 307; 1 Washb. R. P. 399-401; Hazzleman vs. Putnam, 3 Chandler.) And the alienation of the Mine LaMotte domain, including the “Sulphur Lead” now in controversy, was a revocation of Lunsford's mining license. (1 Washb. R. P., 399-400; Prince vs. Case, 10 Conn., 375; Ruggles vs. Lessure, supra;Houx vs. Seat, 26 Mo., 178.)

III. Lunsford was in a state of utter and hopeless insolvency. No action of trespass lay in favor of Lockwood & Scott, who were out of possession. (Reed vs. Price, 30 Mo., 441; Cochran vs. Whitesides, 34 Mo., 417.)VORIES, Judge, delivered the opinion of the court.

This was a petition for an injunction filed by the plaintiffs against the defendant, for the purpose of restraining the defendant from wrongfully digging and removing certain minerals from the lands claimed to belong to the plaintiffs.

It is charged by the petition, that the plaintiffs are the owners and proprietors of a confirmation grant, and tract of land, lying partly in the county of Madison, and partly in the county of St Francois, State of Missouri; and known as Mine LaMotte; that the grantors, under whom plaintiffs claim title, have had the uninterrupted possession of said land for more than twenty consecutive years; that before and since plaintiffs have come into the possession of said tract of land, the defendant has unlawfully and forcibly had and occupied a small lot of ground about 40 feet square, being a part of said tract of land, (which lot is described in the petition,) known as the “Lunsford Shaft” or “Sulphur Lead;” that said lot of ground is mining or mineral land, the chief and sole value of which consists in the lead ore, and other mineral deposits which said ground contains; that the Mine LaMotte claim or confirmation, of which said lot forms a part, is a large body of land containing extensive deposits of lead and other ores, on which said tract of land, mining for said minerals or ores is carried on under the authority and directions of plaintiffs; that the defendant has no title, either in law or equity, to the said lot or parcel of mineral land, nor has he any right to the possession thereof; that long before the purchase of said Mine LaMotte by plaintiffs, certain rules and regulations were established, by the former owners of said tract, for the purpose of mining in and on the same; the tenor of which was, that parties desiring to work as miners thereon, were required to register their names as miners in a book to be kept by said owners of said land, for that purpose; that after said miners' names were registered, they were permitted to go on said tract and stake off a lot of land 40 feet square, the description of which was to be registered, when permission was given them to work the same, upon condition that they should deposit with the smelters of ore on said tract, one-tenth of the mineral mined, for the benefit of the owners of said tract of land; that among said rules and conditions there was one, by which said miners were compelled to work the ground selected by them, and upon their ceasing to work the same for ten consecutive days, then the license or permit given them was to cease, and their claim to be wholly forfeited.

The petition alleged that the license or interest of the miners under said rules were liable to be revoked or terminated at any time that the owners saw fit, all of which terms and conditions were well known to the miners; that when notice was given to defendant by R. F. Fleming, as hereinafter to be stated, similar notices were given by the same person to all other miners working on said tract, under said rules at the same time with the defendant, and that upon receiving said notice all such persons, except defendant, delivered to said owners peaceable possession of their said lots of mineral lands, so worked out by them; that neither plaintiffs nor those under whom they claim, have ever leased said premises or lot of mineral land to defendant, and the only right he ever had in or to said premises, was a parol license or permission given him by the former owners of said Mine LaMotte tract, to dig for ore in the manner and under the rules aforesaid; that the said lot is unlawfully and forcibly in the possession of defendant; that plaintiffs have not since or before they became the owners of said Mine LaMotte tract, in any manner given the defendant, or any other persons, any license or permission to occupy, work or mine in or on said shaft or lead, known as the “Lunsford Shaft,” or any other part of said tract of land; that previous to the purchase of said Mine LaMotte tract of Robert F. Fleming and others, by plaintiffs, due notice in writing was given to defendant, by said Fleming, for himself and other owners, demanding that he deliver the immediate possession of all mineral grounds worked by him as aforesaid, and the appurtenances, to the said owners thereof; that subsequent to this notice, on the 6th day of September, 1861, plaintiffs demanded in writing, of defendant, the possession of said lot before worked by him; that he refused to deliver or quit the possession or occupation thereof either to said Fleming, or to plaintiffs; that immediately after said notice by said Fleming, defendant ceased mining operations in said ““Lunsford Shaft,” but forcibly deprived plaintiffs of the possession thereof, and subsequently, unlawfully commenced to work and mine the same, and now continues to work the same.

The plaintiffs then further charge, that said plaintiff Lockwood, commenced an action of unlawful detainer against the defendant before a justice of the peace, and that he regularly prosecuted said action to final judgment, and recovered a judgment against defendant for the possession of said lot and premises, and costs; that a writ of restitution was duly issued on said judgment, and placed in the hands of the proper sheriff to be executed; that said officer refused to execute the writ, and returned the same unexecuted on the 14th day of October, 1869; that on the 18th day of October, 1869, defendant, and other persons whose names are unknown, and who were acting for, and in concert with the defendant, unlawfully and forcibly, and against the will of plaintiffs, commenced to mine in and remove ore from said sulphur lead, and are still continuing so to do; that plaintiffs at said time had and still have the exclusive right to said premises, and to the...