Tipping v. Robins

• Decision Date: 01 December 1885
• Citation: 64 Wis. 546,25 N.W. 713
• Parties: TIPPING AND ANOTHER, MINORS, BY FOX, GUARDIAN AD LITEM, AND OTHERS v. ROBINS.
• Court: Wisconsin Supreme Court

64 Wis. 546

25 N.W. 713

TIPPING AND ANOTHER, MINORS, BY FOX, GUARDIAN AD LITEM, AND OTHERS

v.ROBINS.

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court, Green county.Orton & Osborn, for appellants, Irene Tipping and another, minors, by Fox, guardian ad litem, and others.

M. M. Cothern and P. B. & J. P. Simpson, for respondent, James M. Robins.

COLE, C. J.

The learned circuit court decided that the defendant made a valuable discovery of a crevice or range of lead ore upon the plaintiffs' land before his authority or license to mine upon the land was revoked. It is not entirely clear from the findings upon what ground the learned circuit judge based this authority or license. It is attempted, as we understand the argument of the learned counsel for the defendant, to sustain his right or license upon two distinct and independent grounds: (1) Through the Tipping lease given in September, 1874, to the Coon Branch Mining Level Company; and (2) by parol license from the defendant by the plaintiff Fox.

We do not see how the defendant acquired any rights from the first source; for, while the evidence shows that there was some talk between the defendant and different members of the Coon Branch association about assigning to him that lease, yet it was never in fact assigned. On the contrary, when the defendant prepared a written assignment of the lease and handed it to the president of the association to be executed, the president and other members refused to sign it. The assignment, as drawn, included both the Shaw lease and the Tipping lease, but the evidence is entirely clear and conclusive that no assignment was ever made. It is true, the defendant, after he purchased the Shaw tract in February, 1876, prosecuted mining quite extensively upon that land, but this he did as owner. Nor can we see the least reason for claiming that the defendant acquired some rights in the Tipping lease because he was one of the original members of the Coon Branch association; for, so far as the Shaw tract was concerned, the association surrendered its mining rights in that land. The proof is very explicit and satisfactory that when the defendant purchased this land he insisted that the association should either work it according to the terms of the Shaw lease, which they had not done, or surrender the land to him. A majority of the members of the association deemed it advisable to surrender it, and this was in effect done; so that whatever mining was done upon the land by the defendant after he purchased it was in his own right as owner, and not under any lease which had been theretofore given by his grantor. As he was the owner, all rights and title, legal and equitable, became absolutely vested in him. So upon this branch of the case we hold that the defendant can claim nothing under the Tipping lease.

The court below found that Fox verbally authorized the defendant to engage in and prosecute work for the purpose of trying to find lead ore on the plaintiff's land, and that this authority or license was not revoked until after the defendant had made a valuable discovery on the land. We think whatever rights the defendant has to mine on the land must be derived from the parol license, supported by the statute. The evidence in regard to such parol license is quite contradictory. We shall go into no discussion of the testimony which makes for or against the fact. I will, however, say that the evidence to establish such license is not as clear and satisfactory to my mind as it seems to be to my brethren. Incontestably there is considerable testimony in the case which tends to show that Fox, as far as he had power so to do, gave the defendant verbal license to mine upon this land. Even in May, 1882, when the survey was made, he did not seriously object to the defendant's mining upon it if the latter would pay one-sixth rent for all mineral taken out above the white bed-rock. It appears that Fox purchased an undivided one-third of the land of Mary E. Tipping in April, 1879, and another third of Lawrence Tipping in January, 1881. The other third belongs to the minors, Irene and William Tipping, subject to the dower interest of their mother. After a careful examination of all of the evidence our conclusion is that we cannot reverse the finding of the trial court on the ground that no parol license is established. There is no satisfactory preponderance of evidence against the finding on this point, except as to the infant plaintiffs; consequently, under our rule, we cannot set it aside.

As to the other individed third owned by the infant plaintiffs there is no proof whatever that any license was ever given by any one which can affect them. Whether a general guardian could give a parol license in their behalf without an order of the county court is a question not presented. But certainly a license by one tenant in common to prosecute mining on land would not bind a dissenting...