Empire Zinc Co. v. Freeman

Ellison, J. — This is an action of replevin for a lot of zinc ore. The court gave a peremptory instruction for plaintiff and defendant appeals. Plaintiff was the owner of the land from which the ore was taken. The land was divided off into mining lots and plaintiff permitted mining thereon by those who would subscribe to the mining rules (set forth at another place) which had been adopted and posted as authorized by section 7034, Revised Statutes 1889. The rules adopted and posted by plaintiff became a part of the contract between plaintiff and anyone mining plaintiff’s land. Garvey v. Gunther, 51 Mo. App. 545. Under those rules the ore belonged to plaintiff, and the miners were to be paid eighty per cent of its value for the mining. It is that fact which makes inapplicable to the case much of defendant’s contention here. That contention is that the miners were joint owners of the ore with plaintiff, and that therefore plaintiff could not maintain replevin against defendant. But we interpret rules four and five as placing the ownership of the ore in the plaintiff and the miners to be paid for services in mining, eighty per cent of its value. The result is that plaintiffs were entitled to recover and the court’s peremptory instruction was not error. The judgment is affirmed. All concur.