Lytle v. James
| Citation | 73 S.W. 287,98 Mo.App. 337 |
| Parties | WILLIAM F. LYTLE et al., Respondents, v. ED. JAMES et al., Appellants |
| Decision Date | 02 February 1903 |
| Court | Court of Appeals of Kansas |
Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.
AFFIRMED.
Judgment affirmed.
Redding & Owen for appellants.
(1) An injunction will not lie as an original and independent proceeding to determine the title to land and mines located thereunder, where the same are held by the defendants, under claim of right and color of title. Smith v. Jameson, 91 Mo. 13. (2) The Center Creek Mining Company, under their rules and regulations, retain the possession of the lot sued for, and are entitled to all ores produced therefrom. The respondents were merely licensees having signed the rules and regulations of said company, and had no such possession as would entitle them to maintain this action. Rochester v Mining Co., 86 Mo.App. 447; Lowe v. Smelting Co., 89 Mo.App. 680; Boone v. Stover, 66 Mo 430; Foundry & Machine Co. v. Cole, 130 Mo. 1; McHose v. Ins. Co., 4 Mo.App. 521; Chynowith v Mining Co., 74 Mo. 174; Nelson v. Nelson, 30 Mo.App. 184; Garver v. Gunther, 51 Mo. 545; Fisher v. During, 53 Mo.App. 553; Zinc Company v. Freeman, 75 Mo.App. 524; Grubb v. Bayard, 9 Morrison Mining Report 199; Iron Co. v. Iron Co., 9 Morrison Mining Report 226. (3) The respondents rented appellants' said lot twenty-four, and no definite time was fixed when the right of mining same should terminate; and the appellants having spent large sums of money and labor in developing said lot the respondents can not instantaneously and absolutely revoke the license, as reasonable notice must be given to terminate the right. Blanchard & Weeks on Mining, 483; Desloge v. Pearce, 38 Mo. 588.
Thomas & Hackney for respondents.
(1) Plaintiffs being the licensees of the Center Creek Mining Company, the legal title and possession of said lot were in the licensor, and, hence, plaintiffs could not maintain ejectment or forcible entry and detainer for the lot. Rochester v. Mining Co., 86 Mo.App. 447; Lowe v. Zinc Co., 89 Mo.App. 680. (2) Under their license plaintiffs had opened up a mine and had erected thereon a concentrating mill and were engaged in mining operations on the lot in question at the time of the cutting over by defendants. The plaintiff's interest in the lot was a very valuable one, while the act of defendants in cutting over and removing ores from the lot tended to absolutely destroy its value. The plaintiffs being unable to maintain an action at law to oust the trespassing defendants, a court of equity will protect the plaintiff's rights by preventing further entry and cutting and carrying away of ores by the trespasser; in fact, plaintiff's only remedy is in a court of equity. (3) Mines, quarries, etc., are protected by injunction upon the ground that injuries and depredations upon them are, or may cause, irreparable damages and also with the view to prevent multiplicity of actions for damages that might grow from the continuous violations of the rights of the owner. Iron Co. v. Reymert, 45 N.Y. 702; s. c., 7 Morrison Mining Rep. 528; Allison's Appeal, 77 Pa. St. 221; Barringer & Adams on Mines & Mining, 716-717.
--This is a suit by plaintiffs to restrain the defendants from entering and mining on lot 24 of the Center Creek Mining Company's land in Jasper county. The plaintiffs, except McDonald and Moody, are licensees of the Center Creek Mining Company on this and other lots, and prior to this suit had erected a concentrating mill with appurtenances and had conducted mining operations on said lots. Previous to the suit, plaintiffs McDonald and Moody leased from the other plaintiffs, at a stipulated royalty, lot 24 and other lots and were conducting mining on the same when the injunction herein was granted.
In June, 1901, the defendants made a drift from their mine adjoining over onto lot 24 and were cutting and removing ores thereupon at the time of the granting of the injunction. The defense was that the defendants had leased said lot from plaintiffs McDonald and Moody prior to the injunction and that they were then operating on said lot under said lease. There was no writing evidencing such lease, and plaintiffs denied that any such lease had been made. This seemed to be about the only disputed fact in the case. The attempt was made to prove that plaintiffs McDonald and Moody had made a verbal lease to defendants, but as the court found for the plaintiffs it was equivalent to a finding that no such lease existed. We have examined the evidence and are forced to the conclusion that the claim of the defendants in that respect was only a pretense, and that no such lease existed at or prior to the commencement of the suit.
The Center Creek Mining Company, under its rules and regulations, retained possession of the lot. The plaintiffs, except McDonald and Moody, who claim under their co-plaintiffs, registered under said rules and regulations as to the lot in controversy with other lots. The rules and regulations of said mining company are required under the mining law as provided by chapter 133, Revised Statutes 1899. Section 1 of the rules of said mining company provided: "Said company will keep at its office a register of all mining lots on said lands (its lands) and containing a copy of these rules and regulations, and no person will be permitted to prospect or mine on said lands until he shall, with the consent of the superintendent, select a mining lot or lots, and sign such register designating the same, thereby subscribing to the rules and regulations therein contained." Section 2 is as follows:
The court after having heard all the evidence made the temporary injunction perpetual. The defendants appealed.
It is contended that as the plaintiffs are merely licensees they can not maintain this action. In ...
To continue reading
Request your trial