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NATIONAL LEAD COMPANY v. MAGNET COVE BARIUM CORP.

July 2, 1964

NATIONAL LEAD COMPANY, A CORPORATION, PLAINTIFF,
v.
MAGNET COVE BARIUM CORPORATION, A CORPORATION, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

  This is a diversity action growing out of an underground mining trespass. The plaintiff, National Lead Company, is a corporation organized and existing under the laws of the State of New Jersey with its principal place of business in New York, N.Y. The defendant, Magnet Cove Barium Corporation, was organized and is doing business under the laws of the State of Arkansas.

Plaintiff corporation is the owner or mineral lessee in possession of the following described 40-acre tracts of land in Hot Spring County, Arkansas:

  a. NE 1/4 NE 1/4, Sec. 15, T 3 S, R 17 W, (hereafter
     referred to as the "National Lead 40")

b. NW 1/4 NW 1/4, Sec. 15, T 3 S, R 17 W,

c. SE 1/4 NW 1/4, Sec. 15, T 3 S, R 17 W,

  d. SE 1/4 S.E. 1/4, Sec. 10, T 3 S, R 17 W, (hereafter
     referred to as the "Jernigan 40")
  e. SW 1/4 NE 1/4, Sec. 15, T 3 S, R 17 W, (hereafter
     referred to as the "Malvern Lumber Co. 40")

Defendant corporation is the owner or mineral lessee in possession of the following 40-acre tracts in Hot Spring County, Arkansas:

a. NE 1/4 NW 1/4, Sec. 15, T 3 S, R 17 W,

  b. NW 1/4, NE 1/4, Sec. 15, T 3 S, R 17 W, (hereafter
     referred to as the "Kimzey 40")
  c. SW 1/4 S.E. 1/4, Sec. 10, T 3 S, R 17 W, (hereafter
     referred to as the "Norden 40")

The east line of the Kimzey 40, leased to the defendant, Magnet Cove Barium Corporation, is the west line of the National Lead 40 owned by the plaintiff. The south line of the Kimzey 40 is the north line of the Malvern Lumber 40 on which the plaintiff is the lessee of the minerals. (See opinion exhibit "A" showing the adjoining 40-acre tracts in the area of trespass and their relative positions to each other.)

The defendant in its answer admitted the plaintiff is the owner or in possession of the estate claimed by it and situate as shown in opinion exhibit "A". Admitted that it, the defendant, is the owner or in possession of the estate claimed by it and situate as shown by opinion exhibit "A", and that a common boundary line exists between the Kimzey and National fee 40's and Kimzey and Malvern Lumber 40's. It denied that it at any time knew the exact location of the common boundary line. It denied knowing the amount or quality of the barite ore under the land of the plaintiff. It denied that "secretly, knowingly, intentionally and wilfully and without the knowledge or consent of the plaintiff" it entered and trespassed under lands of plaintiff. It denied that it had mined and removed barite ore in the amount and quality set forth in plaintiff's complaint.

In paragraph 20 of the defendant's original answer it admitted that it "unintentionally by mistake extended a drift across the boundary line for a short distance into plaintiff's property." In paragraph 24 of the defendant's original answer it denied any extension into the plaintiff's property at any point other than those specifically admitted in its answer.

The defendant in its amended answer of January 21, 1964, admitted in paragraph 5 that it made surveys and studies both on the surface and underground to determine the location of the boundary line, but it denied that it knows the exact location of the boundary line at any particular point. It admitted in paragraph 6 that large quantities of valuable barite are present at the common boundary line, but alleged it was without knowledge as to the quantity and value. The defendant further denied any intentional trespass, but it admitted an intrusion across the common boundary line in paragraphs 7 and 8, as follows:

    "7. It denies that the defendant, secretly,
  knowingly, intentionally and wilfully, without the
  knowledge or consent of plaintiff, entered and
  trespassed under lands of plaintiff. It states that
  defendant inadvertently and unintentionally has mined
  and removed, or displaced and caved, a quantity of
  barite ore across the common boundary lines and from
  under lands in the possession of plaintiff. It admits
  that the total number of tons so mined and removed,
  or displaced and caved, is known to defendant at the
  time of filing this amendment, although it was not so
  known when the defendant originally answered.
    "8. It admits knowledge of an inadvertent and
  unintentional trespass and admits knowledge of the
  value of the barite ore belonging to plaintiff which
  has been mined and removed, or caved and displaced,
  by defendant across the common boundary lines on or
  under land in the possession of plaintiff."

In paragraph 19 of the defendant's amended answer it admitted the following intrusions across the common boundary line into the plaintiff's property: (a) haulage drifts in waste rock across the common boundary line in 1953 and 1954 to provide space to park mine cars; (b) a scraper drift described as "#10 drift on the 70' sublevel" across the boundary line into the property of the plaintiff, mostly in waste rock; (c) a scraper drift which displaced 2,442.5 tons of barite ore of the plaintiff across the common boundary line in 1959 described as #10 scraper drift on the 140' sublevel; (d) a scraper drift extension across the common boundary line at the 70' sublevel, which is described as #10 scraper drift at the 70' sublevel which caved or displaced 305.6 tons of barite ...


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