Peterson v. Bullion-Beck & Champion Mining Co.

• Decision Date: 28 September 1907
• Docket Number: 1811
• Citation: 91 P. 1095,33 Utah 20
• Parties: PETERSON v. BULLION-BECK & CHAMPION MINING COMPANY
• Court: Utah Supreme Court

91 P. 1095

33 Utah 20

PETERSON v. BULLION-BECK & CHAMPION MINING COMPANY

No. 1811

Supreme Court of Utah

September 28, 1907

APPEAL from District Court, Fifth District; Joshua Greenwood, Judge.

Action by Lars C. Peterson against the Bullion-Beck & Champion Mining Company, a corporation. From a judgment for plaintiff defendant appeals.

REVERSED WITH DIRECTIONS.

Farnsworth & Lund for appellant.

Geo. A Udall and Powers & Marioneaur for respondent.

RITCHIE District Judge. McCARTY, C. J., concurs in the result. FRICK, J., concurring.

OPINION

RITCHIE, District Judge.

The plaintiff was a lessee of the defendant, and as such went into possession of a portion of the Bullion-Beck mine, described as block 8 on the 300 level, south, and referred to for the sake of brevity as block 8-300. His term of lease began August 14, 1903, and extended over a period of six months from that date. Under various extensions he asserts that his rights under the lease were extended to and included June 14, 1904, and he continued working under it until April 30, 1904. The plaintiff claims that a portion of the mine known as block 8-200, which was situated on the 200 level immediately above the portion of the mine leased to him, could not be worked without causing the ground above to cave in upon his stope, and that the defendant, knowing the conditions, leased the upper block to one Malvy, who, with his partner, Pete Bianconi, began mining work over the plaintiff's stope in November, 1903, and caused the ground to cave in upon the plaintiff's ore and the waste to be thrown down upon him, and that such interference continued for 5 1-2 months; that a large amount of plaintiff's ore was covered up; and that, except for such interference, the plaintiff would have made a large profit in operating his lease. The defendant set up in defense that at the time of the occurrences complained of one John Malvy was in the sole and exclusive possession of the block of ground known as block 8-200, south, under a lease the terms of which bound him to work his block in a good and minerlike fashion with due regard to the safety, development, and preservation of the premises and for the rights of other lessees; and that for all of the matters complained of Malvy alone was responsible; and that all injurious acts of Malvy complained of, if any, were done and performed, if at all, without any knowledge, authority, connivance, or notice whatever, on the part of the defendant; and that the defendant was in no wise responsible therefor. It is claimed by the plaintiff that the evidence proved that the operations of Malvy were known to and in part directed by the defendant's superintendent; that the president and manager of the defendant company knew of the conditions, and told the plaintiff that the company would protect him; and that one Griffiths, another lessee, under the direction of the superintendent, threw down certain waste upon the plaintiff and covered up his ore. The jury returned a verdict for the plaintiff for $ 3,000, upon which a judgment was rendered, and the defendant has appealed.

The defendant complains of the seventh instruction given by the court. It reads, in part, as follows: "You are further instructed that the defendant company, through its agents and servants in charge of its mine, had the authority and power, and it was the defendant's duty, if it knew that other lessors in its mine were mining their blocks of ground in such manner as necessarily to injure the rights of the plaintiff, Peterson, to take some active measures to prevent it." If such a duty rested upon the defendant company, it must have been grounded upon some contract right of plaintiff, Peterson, or upon some legal obligation. In his brief it is urged that: "The defendant recognized the conditions and took covenants with the right of forfeiture reserved for their breach from Malvy and from Griffiths to the effect that the said lessees would, among other things, observe a due regard for the rights and convenience of other lessees," etc. And, further, that: "The company's agents should have the right to prohibit such operations." We do not see how such a stipulation in a contract between the company and other lessees can give the plaintiff, not a party to such an agreement, any contractual right to demand that the company, for his protection, interfere with the other lessees, nor impose any duty upon the company to one in the situation of plaintiff in this case, unless some covenant or stipulation in the plaintiff's own lease with the company gave him the right to invoke the benefit of provisions in the lease to a third party. There is no such stipulation or provision in the leases between the plaintiff and the company.

The plaintiff, however, contends, apparently, that the law imposes a duty upon a lessor in a case such as this. The general rule is correctly stated in the defendant's tenth request for an instruction, which was erroneously refused. It is, in substance, as follows:

"That a landlord is not liable to one tenant for an improper use of a part of the premises by another tenant, unless the landlord knowingly lets such part for the purpose of being used in such improper manner, or authorizes or causes such improper use." (Jones on Landlord & Tenant, section 605. Rich v. Basterfield, 4 M. G. & S. 784, 56 E. C. L. 782; Leonard v. Gunther, 47 A.D. 194, 62 N.Y.S. 99; Edwards v. N.Y. & H. R. R., 98 N.Y. 245, 50 Am. Rep. 659.)

It is to be conceded that where premises are let to be used for a particular purpose, which would naturally or necessarily cause an annoyance to the injury of another tenant, the landlord is liable to such other; but that principle does not go to the length set forth in the instruction complained of. Between two lessees of different portions of a mine situated as were the plaintiff and Malvy in this case in relation to each other, each knows that the only use to which the ground can be put is mining.

Each knowing the exigencies of the business in which both are engaged should bear them in mind when he makes his contract of lease, and require from the mine owner, the lessor, such reasonable stipulations as will tend to protect himself. In this case even though as alleged by the plaintiff the operations of Malvy above the plaintiff's ground were found to interfere with ...