Iron Duke Mine v. Braastad ( 1897 )

Grant, J.

(after stating the facts). The learned counsel for the defendant contend (1) that plaintiff had no lien upon the ore, and (2) that, if it had, it was waived, and that defendant committed no tort in disposing of it.

We deem it unnecessary to discuss the first point. The lease expressly provided for a lien upon “all ore mined,” and was not confined to the ore mined and upon the premises when proceedings should be taken to recover the royalty and enforce the lien.

Is the lien waived by the terms of the lease or by the customary methods of sale? There is nothing in the lease inconsistent with the existence of the lien. It would be an anomalous instrument which created a lien as security, and then destroyed or waived it by providing for the shipment (to the usual market for sale) of the ore there mined. Defendant introduced evidence to show that Cleveland, Ohio, was the customary market for iron ore mined in the Marquette district; that, by the universal custom of the district, the iron ore was shipped from the mines to this market by railroad and lake vessels; and that the sales agents made advances thereon of the cost of transportation, and sometimes also upon the purchase price of the ore. If this was the universal custom, the-lease was made with reference to that custom, and expressly provided for the lien. The custom, therefore, cannot annul the plain provisions of the contract. The permission to ship the ore for sale in the customary market in another State did not of itself destroy the lien. An innocent purchaser might take the property discharged of the lien, but this would not relieve the defendant from the consequences of his wrongful act in disposing of the property without preserving the lien or paying the royalty. It was in his power, as it was his duty, to pay the royalty, or preserve the lien. He could easily have accomplished this by directing his agents, in making the advance and the sale, to reserve the amount due for royalty, and pay the same to the plaintiff. Instead, he chose to take the entire purchase price, and refuse or neglect to pay. In so disposing of the ore, he, perhaps without intending any wrong, destroyed the lien, and committed an act for which he is responsible, under either count in the declaration.

The judgment is affirmed.

The other Justices concurred.