Lunsford v. La Motte Lead Co.

• Citation: 54 Mo. 426
• Parties: AMOS LUNSFORD, Respondent, v. LA MOTTE LEAD Co., Appellant.
• Decision Date: 31 October 1873
• Court: Missouri Supreme Court

54 Mo. 426

AMOS LUNSFORD, Respondent,

v.LA MOTTE LEAD Co., Appellant.

Supreme Court of Missouri.

October Term, 1873.

Appeal from St. Francois Circuit Court.

B. B. Cahoon, & Jno. F. Bush, for Appellant.

I. The two scrawls, following the names or signatures to the deed, were a sufficient sealing of the deed for all the parties or grantors. In the absence of explanatory evidence the law imputes or attributes one of the two seals to Radcliffe B. Lockwood, and the other to William A. Scott, and Amelia Scott, his wife. (Tasker vs. Bartlett, 5 Cush., [Mass.] 359; Bowman vs. Robb, 6 Barr., 302; Bohannons vs. Lewis, 3 Monroe, [Ky.] 378; Towsend vs. Hubbard, 4 Hill, [N. Y.] 357; Ball vs. Dunsterville, 4 Term, 313; Mackay vs. Bloodgood, 9 Johns., 285; Perkins Conv., 59-134; Washb. Real Prop., 570; 1 Shep. Touch. [[[[[[Am. Ed.], p. 56-7; Stark. Ev., 508.)

W. H. Nalle & M. L. Clardy, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This suit was brought in the Madison Circuit Court, and afterwards removed to the county of St. Francois, by change of venue. The action was in the nature of an action of trover and conversion.

The petition stated, that the defendant was a corporation organized under the laws of this State; that on or about the first day of June, 1870, defendant by its agents and servants unlawfully and willfully took, and carried away, one hundred and fifty thousand pounds of blue mineral or sulphuret of lead, the personal property of plaintiff, of the value of thirty dollars per thousand pounds, and converted the same to defendant's use, without the consent of plaintiff.

The petition further states, that by virtue of a written lease signed by the proprietors of the Mine La Motte or their agents, lawfully authorized, he was in possession of a tract or lot of mining ground, that is, one log house, one and one-half stories high, together with the appurtenances thereto, and a certain lot of ground formerly occupied by Christ. Belten, and bounded on the south by a lot formerly occupied by Bais & Co., the same being known as the ““Lunsford Shaft,” or the “Sulphuret Lead,” being a part of the Mine La Motte tract of land situated in the counties of Madison and St. Francois; that as said lessee he had dug from and mined the said ores from said ground and placed them in the usual manner at the mouth of the shaft preparatory to having them hauled away and prepared for smelting; that the defendant through its agents and managers obtained from the judge of the Circuit Court at chambers an injunction restraining plaintiff from further mining in said shaft; that, after the issuing of said injunction, the defendant committed the trespass first charged.

Judgment is prayed for four thousand four hundred dollars.

The defendant in its amended answer denies all of the material allegations in the petition, except that it is a corporation organized under the laws of this State, and for another and other defense it states, that at the time of the supposed trespass and conversion of said mineral the defendant was the owner with the immediate right of possession of said mineral, and was the owner and had the right to the immediate possession of the said premises from which said minerals were dug, before and during the time of the pretended raising and extracting of said mineral from said premises by plaintiff; and that plaintiff at said time had no right whatever to the possession of said premises or to mine or remove mineral therefrom; and that any occupation of said premises or taking of minerals therefrom by plaintiff was a mere trespass upon the rights of the defendant, and for further defense defendant stated that plaintiff's claim, right or title to said minerals was the subject matter of and in issue in a cause which R. B. Lockwood & William Scott, from whom the defendant derives title to the premises which the petition describes, as plaintiff's, brought in the Madison Circuit Court against said plaintiff, being an action to enjoin said Lunsford from mining said premises, and for other purposes; that since the commencement of this action the proceedings to enjoin said Lunsford have been heard and determined by said court, and the claim which the plaintiff presents in this action, and his right to said minerals and premises, fully adjudicated; that such adjudication was had in September, 1871, and that the same was against the claim and title of plaintiff to said premises and mineral sued for in this action.

The defendant also sets up as a defense to this action, that before the commencement of this suit, and before plaintiff had dug and raised the mineral sued for, one Radcliffe B. Lockwood, who was at the time the owner in fee of the premises from which the minerals were taken, had commenced an action for unlawful detainer against said plaintiff to recover the possession from said plaintiff of the premises from which said minerals were taken or mined; that in the month of September, 1869, said Lockwood recovered a judgment against said plaintiff for the possession of said premises, and that said minerals sued for were wrongfully mined and taken from said premises after such judgment and before the writ for the possession of said premises issued thereon was executed by the officer in possession thereof; that defendant purchased said premises of said Lockwood, and after said purchase said minerals were mined and raised without its consent, and in defiance of its rights, etc.

The defendant also set up several other defenses which it is not necessary to notice. The plaintiff filed a replication denying the new matter set forth in the answer.

A trial was had in the Circuit Court before a jury. The jury after hearing the evidence returned a verdict for the plaintiff for the sum of four thousand dollars.

The defendant filed a motion for a new trial, which being overruled it excepted and has appealed to this court.

The record in this case contains over two hundred pages, and is filled with exceptions taken by the parties to the various rulings of the court during the progress of the trial. The instructions alone, to which exceptions are taken by the parties, cover twenty-two pages of the record; but with the view which I have taken of this case, it will only be necessary to notice a few points urged by the parties in this court.

It appears from the bill of exceptions, that there is a large tract of land situate in the counties of Madison and St. Francois in this State, which is known by the name of the “Mine La Motte Domain;” that the lands are mining lands; that in May, 1838, the owners of this tract of land, for the purpose of facilitating mining thereon, promulgated a set of rules and regulations for the government of their agent, who was to take charge of the mining operations, as well as for the government of those who should work the mines and take minerals therefrom. Each person who proposed to extract minerals from these lands was required to stake off the ground on which he proposed to work, and place objects at the corner, so as to plainly designate the land to be worked, and was compelled to sign his name to the rules and regulations promulgated. These rules by their terms were to go into operation on the 6th day of August, 1838, and it is agreed by the parties, that they were by their terms to expire in ten years from that date. Portions of these rules and regulations were read in evidence by the plaintiff on the trial of the case, and are as follows: “Article 1st. It shall be the duty of the agent of the La Motte Mines and property to attend to the fulfillment of the following rules and regulations established for the interest of all whom it may concern.”

“Article 2nd. Persons desirous of mining, smelting, or transacting business, within the limits of the La Motte Domain, are requested to inform the agent of their intention. No person shall be permitted to commence operations without having his name to these laws.”

Articles one and three of the second sub-division of these rules and regulations read as follows:

“Of Smelting.” “Article 1st. All ores found or extracted within the limits of the La Motte property shall be smelted upon said premises without contrary permission from the agent.”

Article 3rd. No grant or permission will be delivered, thereby empowering a person or persons to the privilege of smelting under these formalities, without such person or persons previously give bond conditioned with a penalty, and approved security, the refusal or acceptance of such security being at the option of the agent. The further condition of said bond shall be, a faithful account of the whole quantity of lead made shall be kept, and that he or they shall deliver or cause to be delivered to an appointed place, or warehouse located on the premises, ten pounds of merchantable lead out of every hundred pounds made; such one-tenth being the property, rent or tax, due the company from those enjoying these privileges.”

The...