Sobey v. Thomas

39 Wis. 317

Opinion

Cole, J.

Tbe material question in this ease is: What rights and privileges were embraced in the verbal lease which was made by Reese, the agent of Dean, with the assignors of the plaintiffs? It was alleged in the complaint, and testimony was offered in support of the averment, that the lease gave the plaintiffs the right to mine not only upon what was known as the Watkins range or works, but also upon any and every part of the forty-acre tract north np to Evan Williams’ land. "But this claim was distinctly negatived by the verdict of the jury and the finding of the circuit court; and we are entirely satisfied that it cannot be maintained upon the evidence. The question as to the extent of the rights granted by the lease must be mainly determined upon the testimony of the witnesses Reese and William Owens. The former clearly and positively states that it was only the Watkins works or range which was leased; and his testimony is corroborated by some facts which appear in the testimony of other witnesses. But were it otherwise, we should consider his unsupported statements in respect to the lease as more reliable and entitled to greater credit than the statements of William Owens, who is certainly not so intelligent a witness, and who would be more likely to be mistaken upon the terms of the lease. The learned counsel for the plaintiffs insists that, giving due weight to positive as against negative testimony, it is satisfactorily shown that the lease embraced all of the tract north of the Watkins range, as well as that range proper. But we do not understand that the rule in respect to the effect of positive as against negative testimony applies. The statements of both witnesses are positive in their character; the one that the lease only included what was known as the Watkins work or range, and nothing more; the other that it embraced that range, whatever it might be, and all the rest of the land up to Williams’ land. Both witnesses testify as to facts, or in other words as to the real terms of a verbal contract entered into between them. So that we' cannot perceive how the doctrine of Ralph v. The Chicago & Northwestern R’y Co., 32 Wis., 178, can Rave any application.

Independent of the question, tlien, whether the mine or diggings of the defendants were actually upon the "Watldns range, it seems to us it is quite impossible to maintain the position, upon the proofs in the case, that the ground which was being worked by them was originally included in the lease, because no right was given to mine on any land distinct from and separate from that range. This is a fact which we consider to be fully and clearly established by the evidence. We shall enter upon no further examination of the testimony bearing upon the question, but state the conclusion which we have reached in reference to it.

This leads to the inquiry as to what was included in the Watkins range or works, which, it is admitted, were leased to the assignors of the plaintiffs, and upon which their right to mine was exclusive. On that question our opinion is, that the lease of the Watkins range carried with it, or included, the right to take out and appropriate, on the payment of the stipulated rent, all the ores and -minerals which might be found in the old works, and also the minerals which should be found in the unbroken ground between the easterly point of the old works and the east line of the tract. We think that this was the extent of the privileges and rights granted by the lease, and that when the east line was reached in following the Watkins range, the plaintiffs’ rights terminated. In view of the circumstances surrounding the transaction, it is unreasonable to suppose that any further rights were intended to be granted or secured by the lease. The counsel for the defendants suggests, rather than argues, that the lease only gave the plaintiffs the right to mine on the old Watkins range to the extent to which it had actually been opened and worked, and that it did not confer the right to follow the range to the east line of the forty. Rut we are unable to adopt that view of the case. We think nothing less than the right to work and prove the Wat kins range to tbe east line of tbe tract was intended to be granted; and we have little doubt upon tbe evidence that tbis was tbe real understanding of tbe parties when tbe verbal lease was entered into.

Nor can we perceive that tbe plaintiffs’ case derives any aid from tbe statutes regulating tbe rights of miners (cb. 260, Laws of 1860, and cb. 117, Laws of 1872). These enactments lay down certain rules and regulations which govern mining contracts and leases, when not contrary to tbe terms established by tbe landlord, and in tbe absence of any express agreement fixing tbe rights of parties. It is unnecessary to dwell upon tbe various provisions of these acts. Tbe third section, in effect, provides that tbe person making a discovery of a crevice or range containing ores or minerals, shall be entitled to tbe ores or minerals pertaining thereto, subject to tbe rent of tbe landlord as well before as after such ores or minerals have been separated from tbe freehold; and be may re-, cover tbe ores or minerals, or tbe value thereof, from any miner digging upon bis range with notice of bis claim. Tbis provision obviously secures to tbe discoverer tbe right to develop tbe range or crevice to tbe limits of the land on which be has tbe privilege to mine, and vests in him tbe title to whatever ores or minerals be may find therein. But bow does tbe provision strengthen tbe claim or aid tbe rights of tbe plaintiffs upon tbe facts of tbis case? It is said that tbe ores or minerals found at tbe place where tbe defendants were at -work perkmied to tbe Watkins range or works, or, in other words that they were taken from that range. But bow is that fact ascertained and determined ? By tbe plaintiffs attempting to trace their range several hundred feet around through tbe adjoining land of Hugh Jones on tbe east, thence back on to the land of Mr. Bean. But is it at all probable that tbe parties intended or supposed, when tbe lease was entered into, that any such rights were conferred by it? Tbe Watkins range, as then known, bad a well defined course in a southeast direction; and we must presume .that the parties knew tbat fact, and contracted witb reference' to it. And it is quite incredible tbat they tben understood that the right to work the "Watkins range carried with it the’ right to follow that range to the east line of the forty, and, upon permission being obtained, to trace the range through the adjoining tract; and also the further right to follow the range back onto the northeast corner of the Dean tract. The verbal lease should be read, in the light of the surrounding circumstances; and if it is, the claim of the plaintiffs will be found unsupported by all the facts and probabilities of the-case. If the plaintiffs, while developing their mine on the Dean land, had actually traced the "Watkins range to the point where the defendants were at work, and established the identity of the defendants’ diggings with the "Watkins range, a different question would be presented. There would then be ground for claiming that the ores and minerals mined by the defendants belonged to the plaintiffs gerbcmied to their range. In this remark, however, we do not wish to be understood either as affirming or disaffirming the correctness of the theory of the circuit court, as stated in the conclusions of law. That theory goes upon the assumption that there was a prior discovery of the range or vein on Jones’ land while the "Watkins range was abandoned and unworked, which restricted the rights of the plaintiffs. This may be so; still our judgment is not placed upon that ground. "We think the lease of the "Watkins range only gave the right to mine upon that range to the east line of the tract.

"We have not overlooked the fact that the "Watkins range was what is described by the witness as a “flat opening,” the ores being found in a horizontal instead of vertical seam. The limits or borders of this opening on the north are not known, and have never been traced. Possibly, the opening may extend to and' include the vein where the defendants are working. But whether it does or not is doubtful and unde termined.' The plaintiffs do not pretend they have traced the-Watkins range by drifting north on the Dean tract np to the-defendants’ works. They claim that they have established a physical connection between the ores in these works and their own, by following the Watkins range’ around through the diggings on Jones’ land, back again on to Dean’s land. . But we' have already said that the lease of the Watkins range terminated at the east line of the tract, and carried no rights beyond that point.

This is the controlling question in the case, and renders a. consideration of the other exceptions unnecessary.

By the Oourt. — The judgment of the circuit court is affirmed.