35 Wis. 48 | Wis. | 1874
We are inclined to agree with the counsel for the defendants in the proposition that, upon the facts stated in the complaint, it appears that the plaintiffs had an interest in
Now it seems to us that this verbal agreement is not really distinguishable in its character from a parol lease of a specified tract of land with the exclusive right to search for lead ore or other minerals and prosecute mining operations thereon. It does give the plaintiffs an interest in the land, and property in the minerals which they should find within the specified limits. The plaintiffs were put in possession, and had, according to the complaint, the sole and exclusive right to run their level and to carry on their mining operations, and were to have all the lead ore or minerals which they should dig or discover upon the tract, subject to the payment of one-eighth part of the
, The case of Gillett v. Treganza, 6 Wis., 348, was referred to on the argument by counsel on both sides, as though it had a direct bearing upon the question here to be decided. That case, however, is quite distinguishable in its facts from the one before us. It was an action of replevin brought by the miner against the owner of the land for wrongfully taking mineral which the defendants had dug and raised from a certain range which the plaintiffs had or claimed to have the sole and exclusive right and privilege to mine upon. It was held that the agreement in that case only gave the plaintiffs the right of digging or searching for lead ore upon the range, but did not grant or demise the mineral or lead ore in the land itself so as to vest in them the general or special property in the mineral, with the right of possession, which was essential to maintain an action of replevin. The parol contract in this case, we think, amounts to a lease of the triangular piece of ground for mining purposes, with the minerals or lead oré therein comprised. And the contest is not between the owner of the land and the lessees, but between the lessees and trespassers. See the case of Beatty v. Gregory, 17 Iowa, 109.
The view we have taken of the case relieves us from the necessity of considering whether the plaintiffs, upon the facts stated, could maintain the action under the provisions of ch. 260, Laws of 1860, as amended by ch. 117, Laws of 1872. That point was very fully discussed upon the argument; but we express no opinion upon it.
By the Court. — The order’of the circuit court, overruling the demurrer to the complaint, is affirmed.-