Tipping v. Robbins

• Decision Date: 17 April 1888
• Citation: 71 Wis. 507,37 N.W. 427
• Parties: TIPPING ET AL. v. ROBBINS.
• Court: Wisconsin Supreme Court

71 Wis. 507

37 N.W. 427

TIPPING ET AL.

v.ROBBINS.

Supreme Court of Wisconsin.

April 17, 1888.

Appeal from circuit court, Green county; BENNETT, Judge.

Action by Irene Tipping and William Tipping, minors, (by William T. Fox, guardian ad litem,) Mary Jane Tipping, and William T. Fox, tenants in common, against James M. Robbins, to recover value of lead ore alleged to have been wrongfully removed from plaintiffs' land. Judgment for defendant. Plaintiffs appealed. Judgment of lower court reversed and case remitted. 25 N. W. Rep. 713. Judgment on new findings was again directed in favor of defendant, and plaintiffs appeal.Orton & Osborn, for appellants.

P. B. & J. B. Simpson and M. M. Cothren, for respondent.

COLE, C. J.

When this cause was here on a former appeal, (64 Wis. 546, 25 N. W. Rep. 713,) it was decided that the defendant acquired no right to mine on the plaintiffs' land by virtue of the Tipping lease mentioned in the case; that whatever right he had acquired rested upon the parol authority or license given him by the plaintiff, Fox, as to his interest. Fox was the owner, as tenant in common, of an undivided two-thirds of the tract in question. The other undivided one-third belonged to the infant plaintiffs, Irene and William Tipping, subject to the dower of their mother, Mary. As to this undivided one-third owned by the infants it was said there was no proof whatever that any license had been given which could affect their rights or bind them in any manner. The effect of the statute (section 1647) upon a license granted by one tenant in common was not much discussed in the case, but there is a distinct intimation in the opinion that the parol license granted by Fox as to his two-thirds was of no practical value unless a further license was obtained which should bind the infants. That question, however, was not definitively settled, but purposely left open for further consideration. The cause was remanded for further proceedings. On filing the remittitur from this court in the court below a motion was made by the plaintiffs for a judgment. The circuit court, without any further testimony having been given or any new trial had, made another finding of facts, which in the main affirmed the finding on the first trial. In the final judgment the court decided that the plaintiffs could not maintain this action against the defendant; dissolved the injunction which had been granted, and dismissed the action, saving to the infant plaintiffs and their mother their rights in the net proceeds arising from the sale of the one-third part of the lead ore taken from their ground by the defendant, after deducting the reasonable value of the labor expended in raising such ore, not including the expense of the level run by the defendant to reach their premises. The court further decided and decreed that the defendant had the legal right to work the mine on the plaintiffs' ground, and to receive the avails of two-thirds of the mineral raised therefrom, subject to the duty of paying the one-eighth to the owner of the ground as rent from the time of the discovery of the range of mineral.

The learned counsel for the plaintiffs criticises the practice adopted by the circuit in making a new and additional finding of facts. As there was no further evidence given or trial had, the necessity for such a finding is not obvious. As counsel suggests, it was perhaps harmless to reaffirm the former finding, but certainly there was no ground for incorporating in the new finding additional facts, and such practice we deem unauthorized. The important question arising on this appeal is the one left undecided on the former appeal, which is, what effect must be given to a parol license granted by one tenant in common to a miner to open and work a new and unopened mine upon land which he owns in common with other tenants who refuse, or, for any reason, fail to grant any such license? In other words, does the license of a co-tenant confer any right thus to mine without the concurrent license of the other co-tenants interested in the ground? The right of the defendant in this case is rested entirely upon the statute, which enacts in substance that no license or lease, verbal or written, made to a miner shall be revocable by the maker thereof after a valuable discovery or prospect has been struck, and the discovery of a crevice or range containing ores or minerals shall entitle the discoverer to the ores or to the minerals pertaining thereto, subject to the rent due his landlord, before as well as after the minerals are separated from the freehold. Section 1647. It seems to us that the statute implies and means that the license thus protected is granted by the owners of the land, who own it and have the right to subject the property to the use of mining. It was not intended to apply to a case where only one of several joint owners of the land granted the license, and it would be unreasonable to give the statute any such construction. Counsel agree in the...