Meeks v. Clear Jack Mining Co.

• Decision Date: 03 January 1910
• Citation: 141 Mo. App. 648,124 S.W. 1084
• Parties: MEEKS et al. v. CLEAR JACK MINING CO.
• Court: Missouri Court of Appeals

124 S.W. 1084

141 Mo. App. 648

MEEKS et al. v. CLEAR JACK MINING CO.

Springfield Court of Appeals. Missouri.

January 3, 1910.

Rehearing Denied February 7, 1910.

1. CONFUSION OF GOODS (§ 12) — RIGHT OF ACTION — REPLEVIN.

Where ore belonging to one was mingled with ore mined by him with knowledge that it belonged to another, so that the same could not be separated, the latter could maintain replevin for all of it.

2. MOTIONS (§ 13) — ORAL MOTIONS — REDUCTION TO WRITING.

Under Rev. St. 1899, § 640 (Ann. St. 1906, p. 660), providing that all motions shall be accompanied by a written specification of the reasons on which they are founded, etc., a party failing to put a motion in writing, after the request of the court so to do, may not complain of its denial.

3. PARTIES (§ 96) — CHANGE — OBJECTIONS — WAIVER.

A defendant in replevin, who did not save his exceptions to the overruling of an objection to an amended petition, changing the parties plaintiffs, and who, after the overruling of the objection, filed his answer and proceeded to trial, waived the error, if any, committed by the court, which had permitted the amended petition to be filed more than two years before.

4. REPLEVIN (§ 48) — REDELIVERY OF PROPERTY TO DEFENDANT.

Where in replevin, the cause was called for a second trial on the merits after the filing of an amended petition, omitting parties named in the original petition as plaintiffs, including the one who had made the affidavit on which the bond was given and the writ issued, and adding others as plaintiffs, and the parties were ready, and the witnesses had been summoned to testify at the trial, which was to be had after a change of venue, the court properly denied the motion to postpone the trial until the property had been redelivered to defendant.

5. REPLEVIN (§ 4) — PROPERTY SUBJECT TO REPLEVIN — ORE.

An owner of land from which ore has wrongfully been taken by another may replevy it.

6. DEPOSITIONS (§ 96) — ADMISSIBILITY — EFFECT OF AMENDMENT AS TO PARTIES.

A deposition, taken at a time when a person is not a party to the action, cannot be used against him after he has been made a party by an amended petition, but it is admissible as against one who was a party at the time it was taken.

7. MINES AND MINERALS (§ 71) — OWNERSHIP OF ORE — LICENSEES.

Where a lessee in a mining lease posted, as provided by Rev. St. 1899, § 8766 (Ann. St. 1906, p. 4068), rules stating that no interest in ore should be acquired by persons mining the same, and that all ore should remain the absolute property of the lessee, the persons mining under the lessee were licensees only, and had no interest in the ore, or any right to the possession of the land from which the same was taken.

8. REPLEVIN (§ 8) — TITLE AND RIGHT TO POSSESSION OF PLAINTIFF.

Replevin can only be maintained by one having a general or special interest in the property replevied.

9. MINES AND MINERALS (§ 58) — LEASES — VALIDITY.

An owner of land may confer by lease the right to remove a portion of the leased premises, or of sand or gravel found on the surface thereof, as well as to remove stone, coal, zinc, or lead found either on the surface or beneath it.

10. MINES AND MINERALS (§ 62) — LEASES — RIGHTS ACQUIRED.

A lease for mining purposes for a specified period, which reserves to the lessor all the uses of the land described not inconsistent with proper mining, and which provides that the lessee may erect on the land buildings and machinery necessary for the purpose of mining and preparing the ore for market, and that he shall pay as rent a royalty on the gross market price on ore mined, etc., gives to the lessee the right to the possession of the ore in the ground, and after it has been cleaned, and the landlord has no interest therein, and no right to interfere with the lessee's possession thereof.

11. EXECUTORS AND ADMINISTRATORS (§ 130) — POSSESSION OF REAL ESTATE BY ADMINISTRATOR — STATUTES.

Rev. St. 1899, § 130 (Ann. St. 1906, p. 379), providing that the administrator shall not control the real estate of the deceased unless the probate court shall, on being satisfied that it is necessary to rent the same to pay the debts, make an order requiring the administrator to take possession of and rent the same, etc., provides for the administrator renting the real estate when an order of the probate court is made therefor, and when such order is made, the administrator is in full charge of the real estate, with the right to sue for and recover the same to the same extent that the decedent might have done.

12. EXECUTORS AND ADMINISTRATORS (§ 329) — LEASE OF PROPERTY — INTEREST IN MINE — STATUTES — "RENT."

Under Rev. St. 1899, § 130 (Ann. St. 1906, p. 379), authorizing the probate court, on being satisfied that it is necessary to rent the real estate for payment of debts, to order the administrator to take possession of and rent the same, etc., the probate court may order the administrator of a decedent owning a mine to lease the same for the purpose of obtaining money with which to pay debts; for the word "rent" means a compensation for the use of lands demised, and is treated as a profit issuing out of the land, and rent may be in the form of royalty.

13. PARTNERSHIP (§ 213) — PLEADING — EXISTENCE — DENIAL — VERIFICATION.

Where the petition in replevin alleged that parties named composed a firm which was the owner of the property sued for, and there was no affidavit filed denying the existence of the firm, as alleged, and there was nothing to show that one of the persons so named had assigned his interest by proper assignment duly recorded, the objection that such person was not a proper party plaintiff could not be sustained.

14. APPEAL AND ERROR (§ 1028) — HARMLESS ERROR.

The judgment for the right party, rendered in proceedings recognized by law, will not be disturbed for mistakes and errors not material to the issue.

Appeal from Circuit Court, Barton County; Samuel Davis, Acting Judge.

Action by J. A. Meeks and others against the Clear Jack Mining Company and another. From a judgment for plaintiffs, the named defendant appeals. Affirmed.

This case was sent from Jasper county on change of venue to Barton county in the Twenty-Sixth judicial circuit; but the bill of exceptions recites that the case was tried by Samuel Davis, judge of the Fifteenth judicial circuit, acting as judge of the Twenty-Sixth.

James J. Hitt and Halbert H. McCluer, for appellant. Thomas & Hackney, for respondents.

GRAY, J.

On the 18th day of November, 1903, there was filed in the office of the clerk of the circuit court of Jasper county, Mo., a petition and affidavit in replevin, in which J. A. Meeks, M. G. Branch, administrator, M. G. Branch, Mary A. Cobb, A. L. Johnson, Thomas Morgan, Harry Tamblyn, R. E. Sanford, and Corrie Cole were named as plaintiffs, and appellant and F. O. Chesney, defendants. The affidavit was made on a separate paper, and signed and sworn to by Harry Tamblyn. A bond was given, and the writ of replevin issued, and under it the sheriff took the property from the defendants and delivered it to the plaintiffs. On the 15th day of February, 1904, the defendants applied for and obtained a change of venue, and the cause was transferred to Barton county, Mo., where it was tried. On the 12th day of September, 1904, the plaintiffs filed an amended petition in the Barton county circuit court, in which the names of Harry Tamblyn, R. E. Sanford, and Corrie Cole were omitted, and the following names added: Allen M. Cobb, Cynthia M. Page, J. A. Gaddis, and Eli C. Gaddis. On the same day the defendants filed an answer to the amended petition. On September 13, 1904, the plaintiffs filed a reply, which was a general denial. There was a trial on September 13, 1904, before a jury, in the Barton county circuit court, but the result thereof we do not know. The cause came on again for trial November 6, 1907, resulting in a judgment in favor of the plaintiffs, from which the Clear Jack Mining Company appealed.

After the jury was impaneled to try the case in 1907, the defendants objected to further proceedings until an order had been made directing the original plaintiffs, who filed the affidavit and furnished the bond, to return the property, for the reason that the amended petition omitted some of the original parties and substituted others therefor. The court, before passing upon this motion, asked counsel to put the same in writing. This was not done, and the court ordered the trial to proceed.

The evidence disclosed the fact that the appellant, Clear Jack Mining Company, was mining for lead and zinc ore on a tract of land adjoining a tract upon which the plaintiffs, or a part of them at least, had a mining lease. It was claimed by the plaintiffs that they owned the mining lease, and had a right to mine the land; that the defendants wrongfully and knowingly entered upon their tract of land, and removed the ore therefrom. The appellant claimed that if any ore did come from the land of the plaintiffs, it was not taken knowingly or intentionally, and that it mined other parts of its own land, and all ores were mixed and run together so that it was impossible to separate or distinguish the ore that came from plaintiffs' land from the appellant's land. As above stated, the tracts were adjoining, and shafts had been sunk, and mining carried on underground. The appellant had cut a drift from its land, extending east under the land on which plaintiffs claimed to have the lease.

The evidence shows that underground surveys had been made previous to the time the ore in controversy had been loosened from its natural state in the ground and hoisted to the surface and cleaned for market. These surveys were made by the county surveyor and his deputy, and at the time the appellant had a ground boss in charge of its underground working; that this ground boss knew when these surveys were made, and knew that the appellant was cutting across the...