Smith v. Jameson
| Decision Date | 14 February 1887 |
| Citation | 3 S.W. 212,91 Mo. 13 |
| Parties | Smith et al., Appellants, v. Jameson et al |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Noah M. Givan, Special Judge.
Affirmed.
Phelps & Brown for appellants.
(1) The testimony is uncontradicted that the plaintiffs were in possession of the surface of the land up to the "line shaft," which covers and includes the disputed strip hence an action of ejectment would not lie, and the only adequate remedy for plaintiffs was by injunction. An injunction will lie to restrain trespass to mining property since the injury goes to the immediate destruction of the minerals which constitute the chief value of that species of property, and because it operates as a permanent injury to the property as a mine. 1 High on Inj., sec. 730; 7 Ves. 308; 2 Sto. Eq., sec. 929; More v. Massini, 32 Cal. 509; Merced Mining Co. v. Fremont, 7 Cal. 317; Thomas v. Oakley, 18 Ves. 184; Lockford v. Lungsford, 56 Mo. 68. (2) It is admitted in the case that this property is open, uninclosed land, chiefly valuable for mining purposes. Where one digging coal upon his own premises has worked through upon the ground of another, he may be enjoined from proceeding. High on Inj., sec. 734. And the digging of lead upon the public lands of the United States is such a trespass as will warrant the interference of equity in behalf of the government. United States v. Geer, 3 How 131. (3) Courts of equity are inclined to the liberal use of the remedy by injunction to prevent trespasses to mines, the relief being granted for the prevention of irreparable injury, resulting as well from the character of the property as the nature of a trespass. High on Inj. 735. And the relief is regarded as peculiarly applicable to zinc mines, which may be worked out and removed without leaving any evidence of their value upon which to base an accounting. Chapman v. Toy Long, 4 Sawyer, 28.
Harding & Buller for respondents.
(1) The petition alleges "that defendants are mining and digging in a certain mining shaft on plaintiffs' land," at or near "the division line aforesaid;" and in the agreed statement of facts it is admitted that defendants were in possession "of shaft on the disputed strip." A party cannot controvert a fact alleged in his pleading, nor one expressly admitted in an agreed statement of facts. (2) An injunction will not lie as an independent proceeding, even to restrain parties in possession from mining on the land. High on Inj., sec. 470; West Point v. Reymert, 45 N.Y. 703; Hart v. Mayer, 9 Wend. 571; Echelchamp v. Schrader, 45 Mo. 505. A court of equity will not, in such case, try the title to the premises. Maguire v. Taylor, 47 Mo. 124; Jarmey v. Spedden, 38 Mo. 395. (4) Even if the proceeding was proper to have tried the title, under the evidence the court should have dismissed the bill, the defendants' title having been shown to have been the best under the statute of limitations, no matter which survey was the correct one. Mylar v. Jones, 60 Mo. 105; Tauner v. Kellogg, 49 Mo. 118.
OPINION
This is an original and independent suit, for an injunction to restrain the defendants from moving upon a "strip of ground" on the boundary line between lots one and two, of the southwest quarter of section 7, township 28, range 33, in Jasper county, twelve feet wide at the north end and twenty at the south end, the ownership and possession of which is claimed by both parties. Suit was commenced twelfth of January, 1883, with temporary injunction till the March term, 1883, when there was answer of general denial and motion to dissolve the injunction, which came on for trial at the September term, 1883, and resulted in a finding and judgment for defendants, dissolving the injunction and dismissing the bill, from which the plaintiffs appealed to this court.
At the trial it was admitted that the plaintiffs were the owners and in possession of lot two, of said quarter section, and that the defendants, Jameson and Vivian, were the owners and in possession of lot one of said quarter section; and that the other defendants were moving on the west side of lot one, under a license from said Jameson and Vivian, and that lot two is valuable principally for mining purposes; that the controversy here is as to the line between the lots, the strip in dispute being, as before stated, twenty feet wide at one end and twelve at the other, and that defendants are in possession of shaft on the disputed strip -- that is, in possession of the shaft located on the line of the disputed strip known as the line shaft. The shaft itself, in which the mining is being done, is conceded to be in possession of defendants, and one-half of it, less six inches, is, also, admitted to be on lot one, outside the disputed strip, but it is claimed, and the evidence tends to show, that, at the bottom of the shaft, defendants are drifting west, at one point, about six feet, and at another about fifteen feet, and mining on the disputed strip, and have taken there-from about one hundred tons of ore, worth two thousand dollars. The line between lots one and two ran north and south, lot one being on the east and lot two on the north. Two different surveys had been made for the purpose of locating and fixing this dividing line; the first was made in 1852, by Mark Richardson, as county surveyor, at the instance of J. N. Vivian, the original owner of lot one, under whom defendants claim, who located and fixed the southwest and northwest corners of lot one, and ran the line between said corners as the western boundary of said lot, and blazed the way all along between said corners, by marking the trees, which were still visible and traceable at the time of the trial. In July, 1883, after suit was commenced, another survey was made, by K. Elliott, as county surveyor, at the instance of plaintiffs, who located the dividing line east of that fixed by Richardson in 1852.
These two lines, as before stated, were twelve feet apart, at the north end, and twenty...
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