Chamberlain v. Collinson

Adams, J. The defendants claim by lease from the Dubuque Level and Lead Mining Company. The plaintiff claims by purchase at an execution sale under a judgment against said company. The defendants claim the right to mine from what is called the grave yard shaft to the Carter pond shaft, a distance of about 1400 feet. The plaintiff denies such right, and claims that at most they acquired the right to mine only from the said grave yard shaft to the gin shaft, a distance of about 500 feet. The first question to be determined is: Did the defendants acquire any right from said company, and if so, what was the extent of the same? l. peinci-pai. jptse?ratiiication of. Whatever rights were acquired, if any, were acquired through one H. W. Clark, who, previous to the time of the aHege<i leasing, if not at the time, was foreman °*' sa^ company in running a water level.' He also, many respects, seems to have been the superintending agent of the company, but the evidence'fails to satisfy us that he was authorized to grant the right to mine said range. That he undertook to grant such right is clearly proven. The defendant Collinson says: “ Charles Stevenson and Clark [431] leased and let me liave the Level range exclusively from the •Carter pond shaft to the grave yard shaft.” In this he is substantially corroborated by said Stevenson, who at the time of the transaction was in the employment of the Level Company with Clark. He says: “Clark and I went over to the grave yard shaft and found Collinson there. Clark let Collin-son and his associates the privilege of going into the grave yard shaft and working out the mineral from there to what is known as the Carter pond shaft. * * * The ground let was the Level range from the grave yard shaft west to the Carter pond shaft. Collinson was to work the whole distance there, anywhere on that ground; no restriction as to place. * * * I consulted with Clark about that, but had nothing to say about it at.the shaft; I let Clark do the talking.” It seems to be equally well established that under the said leasing Collinson and his associates entered immediately upon and worked the said range, and struck mineral and paid rent to the company, and no objection was made by the company, so far as the record shows. We must hold, therefore, that Clark’s acts, in leasing to the defendants the right to mine in the range, were ratified by the company, and that defendants’ ■right extended from the grave yard shaft to the Carter pond shaft, and included the right to mine in the bottom of the drift as well as in the cap rock. 2>_. -u_ rntaSand mming. About two years after the defendants' commenced mining the interest of the said company in the premises was sold on execution sale to the plaintiff, who had no actual notice of defendants’claim. Whether the defendants had such possession of the premises at that time as was sufficient to impart constructive notice of their claim depends upon whether they had ceased to work the premises in a miner-like way. On this point the evidence is somewhat conflicting. Oollinson.says: “I worked that range from the time I got it in the spring of 1868 to the spring of 1873 constantly and continuously whenever my part of the range could be' worked, first with Hurd and John and William Luke, and after Hurd [432] quit myself and my four boys kept on; when the water got up in the ci’evice so we could not work, we would sometimes work elsewhere.” In this he is corroborated by William Luke, who testified that they always kept possession of the diggings, and that their picks, shovels, bars, tubs, ropes and windlasses were kept there. ( John Luke .testified that they worked on the range all the time when not prevented b'y water until the spring of 1873, and had two windlasses all the time at the diggings. This testimony is not to our mind overcome. Such possession would constitute constructive notice, and the rights of the miners would be protected under it. The same evidence shows that the defendants did not abandon the premises at any time. 2-• It appears, however, that after the sale to the plaintiff the defendants obtained permission of the plaintiff’s agent to work the cap rock. It is claimed that this fact, if not of itself an abandonment of their right to work in the bottom of the drift, should be regarded as an admission that they had no right to work there. The acts and words of the defendants in this respect must be viewed in relation to the circumstances in which they were situated. After the plaintiff bought, one Baxter told the defendant Collinson that he had 'orders to stop him, and that he must take his tools out, and denied that Clark had any authority in the matter. The evidence tends to show that the defendants were disturbed by the attempts which were made to stop their work, and while so disturbed they obtained leave from the plaintiff to work in the cap rock. But if they already had the right, as we hold, to work both in the cap rock and bottom of the drift, that right, we think, was not affected by obtaining plaintiff’s consent to work in the cap rock; the occasion of their doing so being that he was threatening to stop their whole work. 4. —:--: damages.0 The evidence shows that the plaintiff took out 77,880 pounds of mineral, worth $40 per thousand, and 2,220 pounds worth $42 per thousand, amounting to $3,248.40. Erom this should be deducted fifty per cent for rent, the amount which defendants were paying; also, such other sum as would have been to the defendants the reasonable cost of [433] raising the same. The defendants should have judgment for the balance. Upon the question of -cost of raising the mineral there is no satisfactory evidence, and the case must be remanded for the purpose of taking testimony in relation to it. Beversed.