Desloge v. Pearce

Holmes, Judge, delivered the opinion of the court. This was an action of ejectment for the possession of land in which the defendants were working a lead mine. The answer denies the plaintiffs’ right to the possession, or to damages. It alleges by way of defence, first, a grant from the ancestor of the plaintiffs to one of the defendants, in 1835, for mining lead ore, with authority to sink shafts and raise mineral, and with the privilege of taking the same to his own use, paying to the grantor one tenth of the lead or ore, and that afterwards the other defendant became a joint owner in the grant; and that they had enjoyed the possession and privilege and worked the mines for more than twenty years, and expended large sums of money ; and second, a licence from the ancestor of the plaintiffs to the like effect; and third, a right to hold the premises and continue their mining operations by the custom of miners, existing in the region of the lead mines of Missouri as far back as the year 1720, and the nature and particulars of the custom are fully set forth; and that they have worked said mines and paid the customary one tenth to the ancestor of the plaintiffs, and to his administrators after his decease, from the beginning of successful operations down "to the present time. They allege further that they had sunk a shaft to the depth of one hundred and twenty feet, and made drifts some two — 598 — or three hundred feet in length, and erected whims and fixtures at a considerable expense of labor and money; and they claim the right by virtue of said grant, licence, or custom, to remain in possession and continue working the mines as heretofore-; and pray for judgment, if ejected, for the value of the work done and for the present value of the mine. The evidence failed to show any grant, and tended to prove that the defendants entered and commenced working the mines under a mere parol licence or verbal privilege, paying the licence or one tenth of the ore raised, and that they had continued their operations under this privilege to the present time. The existence of a custom among miners, extending back to'Spanish times, to appropriate mining claims on unoccupied lands, and work the same on similar terms, was fully proved; but the evidence failed to show any existing right by custom (or otherwise than by virtue of the parol licence) extending beyond the period of the statute of limitations. It appeared from the evidence that the defendants had been working this mine for more than ten years next before the commencement of this suit, under the licence or privilege from the plaintiffs and their ancestor, paying them the one tenth of the ores or lead raised. There was no proof of any adverse claim or possession under any supposed grant by deed, or under any immemorial custom, other than the right and possession held under' the licence; and it was proved that the plaintiffs had given them six mouths’ notice to quit and remove. Instructions were given for the plaintiffs as to their right to recover upon the notice to quit, and as to damages. In one of these instructions the jury were told that they might take into consideration the length of time the defendants had had to work out their claim, and the profits made by them; and that if they found that the defendants had been rewarded for their labor and risk, the plaintiffs were only bound to give them notice to quit. Instructions for the defendants in relation to the recovery — 599 — of rents under the licence as damages, and upon the effect of the custom of miners as a foundation of right in the defendants, were refused. This instruction was as follows: “ 2. The jury are instructed that the extent as to quantity and duration in point of time of a miner’s right, in the absence of any special arrangement between the miner and the proprietor, is a matter to be determined and regulated by the custom prevailing in that behalf in the particular locality where the right attaches; and when it appears that such right has attached with the consent of the proprietor, then it continues and is obligatory upon all persons claiming under such proprietor until forfeited or otherwise determined by the act or consent of the miner; and if the jury find that such right existed in the defendants at the time of the commencement of this action, then the plaintiffs cannot recover, and they will find for the defendants.” A parol licence, or mere verbal privilege, carries no interest in land, and is a mere authority or privilege to do some particular acts, upon the land of another—Fuhr v. Dean, 26 Mo. 116 ; Wolf v. Frost, 4 Sandf. Ch. 72 ; Cook v. Stearns, 11 Mass. 533 ; Wood v. Leadbitter, 13 Mees & W. 838 ; 3 Kent’s Com. 452 ; Washb. on Easm. 5. But a licence to work mines is quite a different thing; it confers not only a right to enter and occupy, but to commit waste and carry away a part of the realty itself, and it is therefore necessarily an interest in lands, tenements and hei’editaments, which is clearly within the statute of frauds, and must, in order to be effectual to give any permanent inheritable interest itself, or any right to a continued and perpetual possession, be put in writing and signed by the parties, or be given by deed; otherwise it can have no greater force or effect than to create an estate at will only, either at law or in equity—R. C. 1855, p. 806, § 1; Wolf v. Frost, 4 Sandf. Ch. 72; Coll. on Mines, 7 (74 Law Lib. 16) ; Bainb. Mines, 83. A parol licence cannot be made the foundation of any right or interest in real estate, or to the future continuous possession thereof, nor to a continuation of the privilege be — 600 — yond the will of the owner of the land. It is essentially countermandable and revocable at will—Cook v. Stearns, 11 Mass. 533 ; 4 Sandf. 72; Washb. on Easm. 19; 2 Am. Lea. Ca. (3d ed.) 701. Even if such an arrangement could be considered as creating a tenancy at will, or by sufferance, it might be terminated, under the statute, by giving one month’s notice to remove—R. C. 1855, p. 1012, § 13. Six'months’ notice were given in this case, though without reference to the end of a year. There may be a tenancy at will by the year, or by the month, but such tenancy must be created by express contract—Ridgeley v. Stillwell, 25 Mo. 570. There was no evidence in the case on which the idea of a leasing for any given term, or a tenancy by the year or by the month, can be founded. This arrangement could have no other effect than to create an estate at will generally, without regard to any holding by the year. Such a licence, so far as executed, would protect the defendants against an action of trespass as wrongdoers, and against damages for what had been done under the privilege given, and against damages for not restoring or replacing what had been changed or altered under the privilege—Pierpont v. Barnard, 2 Seld. 279 ; Sampson v. Burnside, 13 N. H. 264; Lygins v. Juge, 7 Bing. 682; 2 Am. Lea. Ca. 697-99, 3d ed. In many cases, it is held that where a party has, under a parol licence, placed his own property on the lands of another for certain specific purposes, as mill-dams, aqueducts, bridges, houses, fixtures, or other things which (without some special agreement) might become a fixed part of the realty, he will be protected against an action of trespass for continuing them or for removing them, and may maintain an action against the owner who gives the licence for interfering with them, in violation of the privilege given. These cases seem to proceed on the ground that these things, which are thus placed on the lands, are to be treated, under the special agreement, as personal property of the licensee, or on the ground .of an estoppel in pais. Under these au — 601 — thorities, we are inclined to think that the defendants would have a right to remove, at pleasure, their whims, fixtures, or other property of a personal nature, under the terms of the understanding, or by force of any custom or local usage proved to have existed there in relation to such matters, and with reference to which the parties might be presumed to have contracted. But a mere licence unaccompanied with with any vested interest in the real estate created by deed or other writing, and independent of any title acquired by grant, prescription or adverse possession and claim for the period of the statute of limitations, must be deemed to be in its own nature countermandable, and essentially revocable at the will of the owners of the fee. It can give no irrevocable right to hold possession of the realty, and to continue working the mines indefinitely,, and against the will of the owner of the land—2 Amer. Lea. Ca. (3d ed.) 701; Wood v. Leadbitter, 13 Mees & W. 838; Wolf v. Frost, 4 Sandf. Ch. 72. The defendants’ instruction in relation to the custom of miners as a foundation of a right to retain possession and continue working the mines in accordance with such custom, or agreeably to the terms of the privilege, was properly refused. How far these local mining customs may have force, when proved to exist, in matters of contract arising among miners, or between them and the owners of the land when they have acquired some right or interest in the mines by deed or other writing not declared void by the statute of frauds, or by any other mode of acquiring title to the possession of real estate, or where (as in California), mining claims are founded upon a prior actual possession merely as the better title, in respect of the construction of contracts which may have been made with reference to such customs, it is unnecessary here to inquire. The custom is not invoked here for aid in interpreting the contracts and agreements of the parties, but as a source and foundation of an absolute right and interest in real estate. Something like a prescription, or custom from the time of legal memory, sup — 602 — posed to have commenced with a bounding off of mining claims on waste and unoccupied lands, paying a toll of the ores dug to the owner of the land, and continuing for a period extending back beyond the memory of living witnesses, or beyond the period of the statute of limitations, seems to have existed in the mining districts in Eugland. In Barnes v. Mawson, 1 Maule & S. 77, a tenant of the freehold claimed the mines against the lord of the manor, who relied upon a reservation established, not by documentary evidence, but by acts of ownership and adverse enjoyment as far back as the memory of living witnesses would reach; and the matter was left to the jury on the question of adverse enjoyment and acts of ownership for time immemorial. So in Curtis v. Daniel, 5 East, 273, the right of the tenant of the freehold, as against the lord of the manor, to have the dues of copper mines under the land was made to depend upon acts of ownership and adverse possession of the mines and dues for more than twenty years. In Ryan v. Brenton, 10 Adol. (N. S.) 26, the plaintiff claimed the mines as a “bounder” under the custom of miners, as against other “bounders” showing no title in the premises. The custom of bounding on waste mineral lands was so far recognized as to be allowed as the foundation of a claim, qualified by the condition of continuous working, as against another showing no better title; but that the right ceased when the bounder ceased to work. There would seem to be nothing in these cases which can be invoked in support of the doctrine that a bounder of mines under the custom can acquire any right or title, corporeal or incorporeal, in a mine, as against the true owner of the land, by any possession, enjoyment, or acts'of ownership, which are not adverse in character, and continued beyond the period of the statute of limitations. The right to enter and dig for ores is an incorporeal hereditament, and can only be acquired by deed, or by adverse enjoyment for a sufficient length of time to furnish a foundation for a presumption of a grant; but in- all cases the possession, in order to raise even the slightest pre — 603 — sumption, must be adverse—Arnold v. Stevens, 24 Pick. 106; Bainb. on Mines, 35. ■Here, then, is no evidence of any adverse possession or engagement. The evidence shows that the defendants have held the premises by the licence and permission of the plaintiffs and their ancestor, and have always recognized their superior title by paying the customary one tenth of the ores raised. The plaintiffs sue in ejectment for the possession of the premises, and for damages for the detention thereof since the notice to quit was given. The privilege or licence being in its own nature revocable at will, was revoked and terminated by the giving of the notice to remove. Neither the custom proved, nor the long possession under the licence, can be any bar to a recovery in this action. It does not appear that the plaintiffs have recovered any other or more damages than they were entitled to recover. The question whether the defendants had worked the mine long enough to reward them for their labor and expenditure was immaterial. Thei’e was no material error in the ruling of the court upon the instructions. Judgment affirmed. The other judges concur.