21 Iowa 399 | Iowa | 1866
Lead Opinion
The finding of the jury has, m sucn cases as this, properly triable by the first method for the trial of equitable issues, no binding legal effect upon the determination of the case by the court; but the court may accept or reject the finding and render such judgment as he considers equitable. Revision, § 2999.
The evidence covers four hundred and fifteen pages of manuscript, and has received a careful first and second reading. Without taking the space requisite to a detailed statement of the facts and circumstances proved in the
These plaintiffs, however, ceased to work under their license. The time during which they suspended operations is variously stated from two to five years. The licensor and the plaintiffs, however, agree in their testimony, that at the time work was suspended it was expressly understood and agreed between them that there should be no forfeiture of the license by reason of the failure to work under it; but that the same should continue in force. This agreement was made in consideration of the large expenditure of money by the plaintiffs in “ proving ” the ground and the very limited amount of mineral secured thereby. But it was also understood and agreed, that if the licensor should at any time after
The plaintiffs, therefore, have established their right to the premises as against the licensor and every other person, unless it shall be as to .those who may have acquired a right or license without notice of the plaintiffs’ rights. The defendants claim that they did acquire such right in ignorance of the plaintiffs’ claim, and while the plaintiffs were not in such possession of their claim as to afford the defendants even constructive notice.
This is an affirmative defense, and the defendants have the burden of its establishment.
We are not unmindful of the fact that there are more or less contradictions or improbabilities in portions of the testimony of the landlord; but they do not go to impair his credibility to any considerable extent as to the essential fact we are considering, upon which he is entirely consistent. Nor are the discrepancies in his own testimony or the contradictions by other witnesses, other than the defendants themselves, of such a character as to discredit him as a witness, or to justify any serious imputations as to his honesty or truthfulness.
When it is remembered that the premises upon which the defendants have a right to mine are on a part of the same lot as the premises in controversy, and that the shaft, through which they were to and did enter, was situated quite a distance east from the entire lot and on the premises of another person; and that the crevice was supposed to run nearly or quite due east and west, which would take them upon that part of the lot on which they had a right to mine; and alsb the further fact that the real course of the crevice was north-west and was unknown to any one until the actual survey made only a short time before this controversy arose; and when also the further
Without pursuing the discussion further than simply to indicate, as we have, some of the leading features determining us to one conclusion, we must order that the judgment of the Distinct Court stand
Affirmed.
Dissenting Opinion
dissenting. — Convinced that the finding of the jury is consistent with the weight of reliable evidence, and works the more equitable result, I am constrained most respectfully to dissent from the opinion just read. I do not propose to discuss the testimony in detail. This is not a contest between licensees and the owner of the land, but between two sets of licensees. The-plaintiffs seek affirmative relief, and to obtain it must show affirmatively their right to it. They must rely upon the strength of their own, and not upon the weakness of the defendants’ right.
Now, the jury found from the evidence that the plaintiffs’ lease or license was not in force when the defendants commenced to work upon the premises. If this is so, then their bill ought, without further inquiry, to be dismissed.
In reference to a question of this character, viz., whether the evidence did not show an abandonment by the plaintiffs of their right to mine, the finding of the jury, especially a jury of the vicinage familiar with mining-usages and customs, ought to be regarded as entitled to peculiar weight. And the. finding was, I am satisfied, well'warranted by the evidence and circumstances. The plaintiffs’ alléged license dated as far back as 1852 or 1853. Defendants did not commence mining'until 1863. For quite or near five years prior to this time the plaintiffs had not struck a stroke or expended a dollar in mining upon the land of Wilde. The shafts which they had previously sunk had all been filled .up. It is admitted that defendants had no notice of plaintiffs’ alleged rights. It was only when the defendants, after great labor and expense, had struck a valuable mineral deposit that the plaintiffs, by the assistance and collusion of Wilde (the licensor, and who was entitled to a greater rent under the license to the plaintiffs than under that to the defendants), set on foot and sought to re-animate their defunct and
The majority opinion founds an argument against the defendants on the ground that their license from Wilde was within the statute of frauds. This, I think, is wholly immaterial, because, as before observed, the plaintiffs must rely upon their own title and right, and because they cannot set up for Wilde (who is not a party), as against the defendants, the statute of frauds.
I am of opinion that the proper decree would have been and is one dismissing the plaintiffs’ petition, but as the majority of the court think otherwise, the decree below must stand
Affirmed.