Arbuthnot v. Eclipse Land & Mining Co.

BROADDUS, P. J. — The court sustained a demurrer to plaintiffs’ petition and they appealed. The petition is substantially as follows: In February, 1901, the defendant, the Eclipse Land' and Mining Company, held a mining lease for the unexpired term of eight years on certain real estate in the county of Jasper, and without putting up mining rules and regulations as required by the statute, gave verbal permission to W. B. Smith and Orlando Williams to mine on a part of said premises ; and it was also verbally agreed that they and their assigns should have the right to mine on the land during the term of said company’s lease. Afterwards, on May 2,1901, said company posted rules and regulations, which, however, did not specify the time during which the mining right should continue, but it was agreed verbally, at the time when said Smith and Williams signed the register of the rules, that their right to mine should continue during the unexpired term of said company’s lease. Afterwards, Smith and Williams transferred certain of their interest to the firm of Lichliter & Company, by the terms of which the latter were to pay the Eclipse company a certain royalty and also to pay Smith and Williams a royalty. Under the arrangement, Smith and Williams and Lichliter & Company operated the mines and the latter paid royalty to the Eclipse company and to Smith and Williams until May 2, 1904, at which time the said Eclipse company and the Loyal Mining Company, which became interested in the lease, refused to recognize the right of Smith and Williams and Lichliter & Company to further mine on the land. It was further alleged that a copy of the lease from Smith and Williams to Lichliter & Company was delivered to the Eclipse company, which approved and retained the same [604] and acted on it until the said 2nd day of May, 1904. The plaintiffs’ suit is to recover damages from the said last named date. It is contended by plaintiffs that the contract between Smith and Williams and the Eclipse company was a mere license and created no interest in the realty; therefore, it was not obnoxious to the Statute of Frauds requiring all contracts creating any interest in land to be in writing. It was held in Boone v. Stover, 66 Mo. 480: “An instrument in writing, under seal, granting permission to mine on a certain lot, so long as the grantees do regular mining work on the lot, is a license, and a grant of an incorporeal hereditament.” And “That such an instrument is not a lease, for the reason that it does not pass such an estate in possession in the land, as would entitle the grantee to maintain ejectment.” And the law is similarly stated in 29 Am. and Eng. Ency. of Law, p. 883; Browne on Statute of Frauds, sections 21 to 32, inclusive; Morrill v. Mackham, 24 Mich. 279; Worther v. Garnes, 182 Mass. 243. But it seems to us that the character of the verbal contract in controversy, its force and effect, whether it be a lease or a license, or whether it creates a corporeal or an incorporeal hereditament at common law, is immaterial, because sections 8766-8767, Revised Statutes 1899, provide that it shall remain in force for a term of only three years. In a recent decision of this court, it is held: “Where a lessee of mining land plats it and posts rules omitting to name the time for the continuance of miner’s rights to operate as required by the statute, then the license continues for a period of three years and no1 longer. [Ashcraft v. Englewood Mining Co., 106 Mo. App. 627.] And such is the holding in Robinson v. The Troup Mining Co., 55 Mo. App. 662. And the said Smith and Williams could convey no greater estate than they held themselves to Lichliter & Company. The statute in question settles every disputed question raised by plaintiffs on their appeal. The Legisla [605] ture evidently had in mind the multiplicity of questions that would inevitably arise in the business of mining without some definite rules regulating the matter; and for the purpose of defining the duties of owners, lessees and miners of land, it enacted the mining statute. And as the statute in question is clear and positive in its terms, there can be no good reason assigned why its legitimate effect should be frittered away under the pretense of conforming to common-law rules. As plaintiffs’ right to mine on the land had expired by reason of the statute in question, the action of the court in sustaining the demurrer is affirmed. All concur.