Volume 219 — Mississippi Reports

<bold>1. Taxation — use tax — exemptions — scrap metal dealer —</bold> <bold>processor entitled to — under statute.</bold> Dealer in scrap metal who compressed such metal, by use of a hydraulic press, into bales conforming to specifications required by United States Department of Commerce, and by steel mills to which dealer sold such bales, was a "processor," or engaged in business of processing, within statute providing that gross proceeds from sales of tangible personal property to processor of machinery and machine parts which are exclusive necessities to processing within State shall be taxable at the wholesale rate, and hence statutory exemption from use tax, granted in cases where the property in question would have been taxed at wholesale rate, was applicable to machinery used in such process, which had been purchased by dealer outside, and delivered to him within, the State. Secs. 1, et seq., 4 (c), Secs. 1, et seq., 1 (7), Laws 1948. Headnote as approved by Roberds, P.J.

<bold>1. Criminal law — trial — refusal of instruction — probability</bold> <bold>of innocence — not reversible error — in view of other</bold> <bold>instructions granted.</bold> In prosecution for unlawful sale of intoxicating liquor, refusal of defendant's requested instruction to effect that if jury believed there was a probability of innocence, then there was a reasonable doubt as to guilt and jury must return verdict of not guilty was not reversible error, in view of fact that instructions given fully informed jury as to burden of proof and principles of law applicable. <bold>2. Witnesses — interest of may be shown.</bold> The fact of a witness' interest in an action, whether civil or criminal, may be shown for purpose of affecting his credibility.<page_number>Page 466</page_number> <bold>3. Witnesses — evidence — interest of sheriff — participation in</bold> <bold>fine on conviction — participation in other fines.</bold> In prosecution for unlawful sale of intoxicating liquor, it was competent for defendants to show that sheriff who testified against them would participate in any fine which might be imposed upon them in the event of their conviction, but sheriff's participation in fines imposed in other prosecutions could not establish any interest on part of sheriff in case on trial such as would affect his credibility, and exclusion of evidence showing amounts which had been paid sheriff during year as his share of fines imposed in liquor violations was not error, especially where excluded evidence was established by defendants by testimony of sheriff on cross-examination, and in no event could defendants have been prejudiced by exclusion of merely cumulative evidence. <bold>4. Criminal law — intoxicating liquors — testimony of sheriff of</bold> <bold>complaints about place operated by defendants.</bold> In such case, testimony of sheriff that he had had complaints about place operated by defendants merely explained why sheriff had sent two persons out to defendants' place to buy whiskey, and admission of such testimony resulted in no prejudice to defendants and constituted no grounds for reversal of a judgment of conviction. Headnotes as revised by Holmes, J.

<bold>1. Conveyances — reservations — construction of word</bold> <bold>"minerals."</bold> In determining the meaning of a conveyance or reservation of minerals, regard may be had not only of the language of the deed, but also to the situation of the parties, the business in which they were engaged and the substance of the transaction, and in doubtful cases, the meaning of the word "minerals" will be restricted to that given by the custom of the country in which the deed is to operate. <bold>2. Conveyances — same — same.</bold> The word "minerals" has no definite and certain meaning that can be attributed to it in all cases. <bold>3. Conveyances — reservations — construction of word "minerals"</bold> <bold>— sand and gravel ordinarily not included.</bold><page_number>Page 641</page_number> Sand and gravel ordinarily are not included within a grant or reservation of minerals or of mineral royalty, although there is on the land involved sand or gravel susceptible of commercial production or use. <bold>4. Evidence — matters of common knowledge — since discovery of</bold> <bold>oil in State.</bold> Since the discovery of oil and gas in commercial quantities within the State, it is a matter of common knowledge that most grantors and purchasers of minerals in place, as well as sellers of land under reservation of all minerals on land, ordinarily have in mind, oil, gas and other minerals of like kind and character and that gravel is not usually bought and sold under designation of solid minerals without a more definite and specific mention being made of what is being purchased and sold. <bold>5. Evidence — same — same.</bold> Generally speaking it is not now within the contemplation of parties selling or purchasing "all of the minerals" in place underneath a tract of land, that purchaser shall have right by open pit mining to either destroy or greatly impair value of land by excavation or removal of gravel therefrom, nor that landowner must account to his vendor of land under reservation of minerals, or to his vendee of all or part of the minerals, for any part of value of gravel that landowner may remove or cause to be removed from land. <bold>6. Reservations — construction — "all minerals" — to include</bold> <bold>sand and gravel — case in point — overruled.</bold> Case in point holding "all minerals" used in reservation to include gravel on the land, expressly overruled, Supreme Court stating that rule of property thereby established should not be applied to any conveyance or reservation of "minerals" that were executed under changed conditions brought about by discovery of oil and gas in State, in absence of a specific designation of sand and gravel as being intended to be conveyed or reserved. <bold>7. Evidence — alleged conversations — between grantor and</bold> <bold>grantee — that sand and gravel reserved — properly excluded.</bold> In action by grantor, who reserved all minerals, both liquid and solid, to enjoin grantees from conveying or otherwise disposing of gravel situated on the land, Chancellor properly excluded oral testimony as to alleged conversations between grantor and grantee as to whether sand or gravel was intended to be reserved. <bold>8. Minerals — reservation — all minerals both liquid and solid —</bold> <bold>sand and gravel not included.</bold> In such action, it was proper for trial court to consider testimony as to situation of parties, business in which they were engaged and<page_number>Page 642</page_number> substance of transaction, custom of country where deed was to operate, in determining whether reservation of the minerals was intended to include sand and gravel, and under all of the facts, when the conveyance is construed most strongly against the grantor, a practicing attorney, who prepared the conveyance, then the sand or gravel should not be deemed to have been included in the reservation here involved. Headnotes as approved by McGehee, C.J.

<bold>1. Appeal — supersedeas — jurisdiction — contempt — failure to</bold> <bold>comply with former decree.</bold> Where an appeal with supersedeas was pending from decree of December 5, 1952, commuting into lump sum, alimony due under decree of February 6, 1950, and ordering attorney's fees and increased monthly support, Court was without jurisdiction to entertain petition to have defendant adjudged guilty of contempt for failure to comply with its decree of February 6, 1950, it having passed upon such matter in its decree of December 6, 1952. <bold>2. Appeal — effect of — with or without supersedeas.</bold> When statutory bond for appeal from decree of chancery court is given and approved, the case is ipso facto removed into the Supreme Court, and the successful party may, if the appeal is without<page_number>Page 721</page_number> supersedeas, proceed to execute on the decree, but, if it is with supersedeas, execution thereon is suspended. Headnotes as approved by Lee, J.

<bold>1. Explosives — concussion damages to dwelling by blasting —</bold> <bold>negligence — jury question.</bold> In action for concussion damage to rock-veneer dwelling of plaintiffs allegedly from explosion of dynamite on adjoining land in connection with oil exploration at depth of about 80 feet below surface of earth and at a distance of from 275 to 450 feet from dwelling house, evidence clearly presented question for jury as to whether or not damage to the dwelling of plaintiffs was the proximate result of the explosions. <bold>2. Explosives — same — doctrine of absolute liability.</bold> Absolute liability could be imposed upon blaster whether damage resulted from projection of rock or other debris or merely from concussion resulting from explosion. <bold>3. Explosives — same — inferences indulged in by jury —</bold> <bold>evidence.</bold> In such suit, jury was entitled to infer from proof that explosion had been set off too near plaintiff's dwelling, and that too large a charge of dynamite had been used in explosion so near to dwelling, without regard to whether explosion took place on adjoining land or on land of plaintiffs; and hence it was not error to reject proof by Exploration Company in an attempt to show that they had consent of an assignee of oil and gas lease of plaintiffs' land to explore for oil and gas thereon. Headnotes as approved by McGehee, C.J.<page_number>Page 758</page_number>