Meeks v. Clear Jack Mining Company
| Decision Date | 03 January 1910 |
| Citation | 124 S.W. 1084,141 Mo.App. 648 |
| Parties | J. A. MEEKS et al., Respondents, v. CLEAR JACK MINING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Barton Circuit Court.--Hon. Samuel Davis, Judge.
Judgment affirmed.
James J. Hitt and Halbert H. McCluer for appellants.
(1) The court erred in permitting the plaintiffs to proceed to trial without first returning to defendants the ore involved in the litigation. Shoe Mac. Co. v. Rambon, 210 Mo. 631; Hoehenthal v. Watson, 28 Mo. 360; White v Vanhoutin, 57 Mo. 577; State ex rel. v. Dunn, 60 Mo. 64; Manley v. King, 40 Mo.App. 531; Clinton v. Stovall, 45 Mo.App. 642; R. S. 1899, sec 4465. (2) The heir and not the administrator of R. H. Branch deceased, should have been a party. Chambers Admr. v. Wright's Heirs, 40 Mo. 482; Hall v. Bank, 145 Mo. 424. (3) The court erred in admitting the depositions taken prior to the filing of the amended petition. Leslie v. Coal Co., 110 Mo. 31; Bank v. Thayer, 184 Mo. 61; Hendricks v. Calloway, 211 Mo. 558; Parsons v. Parsons, 45 Mo. 265; Adams v. Raigner, 69 Mo. 363; Borders v. Barber, 81 Mo. 636; Plow Works v. Ross & Co., 74 Mo.App. 437. (4) The court erred in finding the issues in favor of the plaintiff. Deyerle & Porter v. Hunt, 50 Mo.App. 546; Hall v. Bank, 145 Mo. 424; Chitwood v. Zinc Co., 93 Mo.App. 225; Mahoney v. Smith, 7 Mo.App. 578; Hamilton v. Clark, 25 Mo.App. 428; Gossett v. Drydals, 48 Mo.App. 430; Huff v. Henry, 57 Mo.App. 341; Kauffman v. Schilling, 58 Mo. 218; Gray v. Parker, 38 Mo. 160; Groff v. Belch, 62 Mo. 400; Austin v. Coal Co., 72 Mo. 535; Brown v. Stover, 66 Mo. 435; Rochester v. Mining Co., 86 Mo.App. 447; Arnold v. Bennett, 92 Mo.App. 156; Raynolds v. Hound, 55 F. 783; Gastride v. Autley, 58 Ill. 210; Shepherd v. McColmank, 38 Hun 37; Gillette v. Tregemyer, 4 Wis. 343; Beardsley v. Gas Co., 96 P. 859.
Thomas & Hackney for respondents.
(1) The law requires the motions for the return of the property to be in writing and seasonably filed, and if made ore tenus only, they are properly disregarded. R. S. 1899, secs. 640, 641; White v. Railroad, 202 Mo. 539; Lynch v. Railroad, 208 Mo. 44. (2) Defects in the affidavit and bond are not jurisdictional and cannot affect the judgment. Ead's Admr. v. Stephens, 53 Mo. 92; Bingham v. Morrow, 29 Mo.App. 448; Land Co. v. Jeffries, 40 Mo.App. 362; Shoe Mach. Co. v. Ramlose, 210 Mo. 652. (3) By filing its answer to the amended petition and proceeding to trial on the issues joined, the appellant waived any objection it may have had to the amendment. Scoville v. Glassner, 79 Mo. 449; Ward v. Pine, 50 Mo. 38. (4) Under this lease and the taking possession thereunder by the plaintiffs, they acquired an interest in the land itself and all the ores extracted from the land whether by the plaintiffs, their sublessees or licensees, or by strangers or trespassers, during the term of the lease. Kirk v. Mattier, 140 Mo. 23; Hobart v. Murray, 54 Mo.App. 249; Ganter v. Atkinson, 35 Wis. 48; 9 Morrison Mining Rep. 13; 2 Snyder on Mines, secs. 1164, 1394; Barker v. Dale, 8 Morrison Mining Rep. 597; Austin v. Coal & M. Co., 72 Mo. 535; 1 Taylor on Landlord and Tenant (8 Ed.), sec. 178; 18 Am. and Eng. Ency. (2 Ed.), 453. (5) The plaintiffs had the right to maintain replevin to recapture the ores. Barringer & Adams on Mines and Mining, 689; White on Mines and Mining, secs. 567, 569; 1 Taylor on Landlord and Tenant, sec. 178; Bainbridge on Mines, pp. 3, 494; Hail v. Reed, 15 B. Monroe (Ky.) 479. (6) The instrument under which the plaintiffs held the land is a mining lease and not a license. Kirk v. Mattier, 140 Mo. 23; Boon v. Stover, 66 Mo. 430; Doe d. Hanly v. Wood, 2 B. & Ald. 736; s. c., 9 Morrison Mining Rep. 182; 2 Snyder on Mines, secs. 1164, 1394; Ganter v. Atkinson, 35 Wis. 48; 9 Morrison Mining Rep. 13; Massot v. Moses, 3 So. Car. 168; 16 Am. Rep. 697; 8 Morrison Mining Rep. 607.
On the 18th day of November, 1903, there was filed in the office of the clerk of the circuit court of Jasper county, Missouri, 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, Missouri, 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 6th, 1907, resulting in a judgment in favor of the plaintiffs, from which the Clear Jack Mining Company appealed.
After the jury was empaneled 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 under ground. 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 line and taking ore from land in which it had no interest.
The evidence shows that the president of the appellant company knew these surveys were being made, but made no inquiry of his ground boss and took no steps to ascertain where the true lines were. The said ground boss testified that the president of the appellant company cautioned him to be careful about the employment of hands and get men who would not afterwards be employed by the respondents.
The preponderance of the evidence shows that the ore in controversy was taken from this leased land of respondents. While the appellant had some testimony that only about half of the ore came from this land, yet the undisputed fact is, that as soon as this suit was instituted, the appellant shut down its mine and did not operate any more. Its action in so doing can only be explained upon the theory that as soon as it was stopped from wrongfully taking the ore from the adjoining land, it had none to mine.
The fact that the president of the company knew that these surveys were being made, and took no steps to ascertain the line between the land of his company and the adjoining land, shows that he had every reason to believe that his company was taking something that did not belong to it. It is a well known fact in all the mining districts that disputes often arise as to the true boundary line between the different mining rights, and that the county surveyor is sent for to make his survey and establish the true line, and a mistake by even one foot in ascertaining or establishing the true line, may mean a loss of quite a sum of money. So when the county surveyor came to make the surveys between the two tracts in controversy, the fact that the president of the appellant company did not take steps to ascertain and determine the true line between the parties, shows that he must have known that his company was already over the line mining where it had no right.
Under these circumstances, if some ore belonging to the appellant was mingled with the ore of plaintiffs so that the same could not be separated, the plaintiffs had the undoubted right to maintain a replevin for all of it. [Blurton v. Hansen, 135 Mo.App. 548, 116 S.W. 474; Cobbey on Replevin, sec. 405; Tootle v. Buckingham, 190 Mo. 183, 88 S.W. 619; Wingate v. Smith, 20 Me 287; Jenkins et al. v. Steanka, 19 Wis. 126; Jones on Chattel Mortgages, sec. 481....
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