Continental Zinc Co. v. Amsden, Leonard & Co. ( 1907 )

BROADDUS, P. J.

This is an action for trespass, to recover damages for the removal by defendants of lead and zinc ores from the plaintiffs’ lands.

The Continental Zinc Company is the owner in fee of a tract of mining land near Joplin, Missouri; the Glendale Mining Company is one of its licensees, with a contract to mine for lead in certain lots including lot 11, upon which it is alleged defendants committed the trespass complained of. The defendants were also engaged in mining on certain lots, one of which adjoined said lot 11. The defendants and the Glendale Mining Company were operating under like contracts with the Continental Zinc Company and paying the same rate of royalty. The defendants in mining followed a drift of ores beyond the limit of their lot and within the lines of said lot 11.

The evidence shows that the trespass was not wilful, but that the mining done by defendants on lot 11 was under the supposition that they were within the limits of their own lot. And there is evidence tending to show that the superintendent of the Continental Zinc Company, whose duty it was to superintend all the mining on his company’s property, told the defendants to continue the mining after they had got within the lines of lot 11. But there was a dispute as to that matter which was by instruction left to the jury, and, as the verdict was for the plaintiffs, that question is concluded so far as we are concerned, although much of defendant’s argument for a reversal of the cause is based upon the claim that the mining complained of was with the consent of said superintendent.

As the plaintiff, the Glendale Mining Company, was merely a licensee, defendant claims that it was not a necessary party to the proceeding. The decisions of this State are to the effect that “A mining licensee is without possessory right and cannot maintain forcible entry and detainer or trespass, and in short, is without any legal remedy whatever for injuries to the possession.” [Lytle v. James, 98 Mo. App. 337; Lowe v. American Zinc Co., 89 Mo. App. 680; Rochester v. Gate City Mining Co., 86 Mo. App. 447.]

The defendants demurred to the petition for the reason that the said Glendale Mining Company was not a necessary party to said suit, which was overruled by the court. The defendants did not elect to stand on their demurrer, but answered to the merits of the action, thereby waiving any error of the court in that respect. [Estes v. Desnoyers Shoe Co., 155 Mo. 577.] “By pleading to the merits a defendant waives every thing in the petition, except that it does not state facts sufficient to constitute a cause of action, and that the court has no jurisdiction over the subject-matter of the action.” [Paddock v. Somes, 102 Mo. 226; Strauss v. St. Louis Transit Co., 102 Mo. App. 644.] As the petition stated a cause of action as to the Continental Zinc Company, the owner of the mine, the judgment is supported by the pleadings.

Finding no error in the record, the cause is affirmed.

All concur.