Volume 251 — Mississippi Reports

<bold>1. Tenants in common — ouster — adverse possession.</bold> Where cotenant moved onto land in 1942, paid taxes on land in his own name, worked and rented land, sold timber, rebuilt a house, retained all rents and profits as his own, recognized no cotenants and held himself out as owner, using land as he pleased and being recognized as owner of land by entire community, evidence warranted finding that he had ousted other cotenants, and acquired full title to property through adverse possession of property.<page_number>Page 48</page_number> <bold>2. Tenants in common — ouster — physical ouster not necessary.</bold> In order to establish title in tenant in common by adverse possession, a physical ouster is usual but not necessary, but the ouster must be of an unequivocal nature, and hostile to rights of other cotenants, so that intention to disseize is clear and unmistakable. <bold>3. Tenants in common — ouster — adverse possession.</bold> Where defendant cotenant's possession was attended with such circumstances as to evince claim of exclusive right and title, and to show the denial of right of other cotenants to participate in profits, defendant's sister who had occupied small house on land since defendant had moved thereon was ousted along with other cotenants, as she had the status of a licensee. Headnotes as approved by Ethridge, J.

<bold>1. Criminal law — dismissal — adjournment of court — motion to</bold> <bold>reinstate came too late.</bold> Where Circuit Court of Lafayette County, which came under statute providing that court terms in Lafayette County be on second Monday of March, six days, and on second Monday of September, six days, convened on Monday, March 9, 1964, and on March 10, 1964 appeal by defendant from judgment of Justice of the Peace Court convicting him of carrying concealed weapon was dismissed because defendant did not appear, and on March 11, 1964 Circuit Court was adjourned because all matters of business were concluded, Circuit Court did not have jurisdiction of motion by defendant on March 12, 1964 to reinstate appeal. Secs. 1394, 1397, 2085, Code 1942. Headnote as approved by McElroy, J.<page_number>Page 157</page_number>

<bold>1. Appeal — interlocutory appeal — when, and when not granted.</bold> Interlocutory appeals to settle all general and controlling principles of the case should not be granted where principles applicable are well settled, unless, in a given situation, difficulty of application arises. Sec. 1148, Code 1942. <bold>2. Appeal — interlocutory appeal — improvidently granted.</bold> Where heirs at law sought to have a deed absolute on its face declared to be a mortgage, interlocutory appeal from order sustaining general demurrer to cross-bill which alleged oral agreement by and between deceased and cross-complainant relating to the subject properties was dismissed as having been improvidently granted in that no difficulty of application of controlling principles of law was apparent. Secs. 272, 1148, Code 1942. Headnotes as approved by Patterson, J.

<bold>1. Appeal — interlocutory order — whether appeal will lie — duty</bold> <bold>of Supreme Court ex mero motu.</bold> Whether appeal will lie from interlocutory order is question involving jurisdiction which Supreme Court should raise on its own motion. Sec. 1148, Code 1942. <bold>2. Appeal — interlocutory order — improvidentially granted —</bold> <bold>dismissal.</bold> Interlocutory appeal from decree overruling defendant's motion to dismiss action by remaindermen for alleged wrongful cutting and removal of timber would not settle all of the controlling principles involved and was not exceptional in that it would avoid expense and delay, and appeal was thus improvidentially granted and would be dismissed. Sec. 1148, Code 1942. Headnotes as approved by Brady, J.

<bold>1. False pretenses — bad check law — payment of preexisting debt</bold> <bold>not within ban of statute.</bold> Payment of preexisting debt by worthless check does not come within ban of statute making it a felony for any one with intent to defraud to issue check to another, for value, on bank wherein he has no funds to cover the check, which is not paid. Sec. 2153, Code 1942. <bold>2. False pretenses — bad check law — does not include past</bold> <bold>deliveries.</bold> Bad check law does not cover the obtaining of goods where they have already been delivered and have passed completely out of seller's possession. Sec. 2153, Code 1942. <bold>3. False pretenses — bad check law — essential element of</bold> <bold>offense.</bold> Essential element of offense under bad check law is the making and delivering of a check to another person for value, and thereby obtaining from such other person money, goods, or other property of value. Secs. 2149, 2153, Code 1942. <bold>4. False pretenses — bad check law — conviction sustained.</bold> Evidence sustained conviction of defendant, who allegedly had purchased house and had been permitted to remove it but whose check for the price was returned marked insufficient funds, for obtaining money under false pretenses by issuance of bad check. Secs. 2149, 2153, Code 1942. Headnotes as approved by Ethridge, J.

<bold>1. Minerals — negligence of prudent operator in clearing</bold> <bold>drilling site for well that was never drilled — evidence —</bold> <bold>jury question presented.</bold> Evidence established as matter of law that temporary and final abandonment of drilling location by lessee were acts of prudent operator, but was sufficient to make out a prima facie case and question for jury as to lessee's negligence in clearing the drilling site, with resulting damage to the surface, when it knew or should have known that it would probably not drill a well. <bold>2. Minerals — oil and gas lease — surface rights — rights of</bold> <bold>lessee.</bold> Lessee had right to go upon land for all reasonable purposes to explore or drill for oil and gas and make reasonable use of a reasonable amount of land for such purposes. <bold>3. Appeal — juries — presumed to have drawn from evidence every</bold> <bold>permissible inference.</bold> Jury must be presumed to have drawn from evidence every permissible inference. <bold>4. Appeal — inferences — function of reviewing court.</bold> It is not reviewing court's function to draw inferences or determine what particular inference jury drew from several permissible ones, but to determine what inferences the jury could legally draw from evidence. <bold>5. Minerals — oil and gas lease — right of lessee to develop</bold> <bold>land.</bold> Oil and gas lessee had right to do whatever was reasonably necessary to develop leased land, including clearing the location, without liability for resulting damage. <bold>6. Minerals — oil and gas lease — damages — lessee's damage to</bold> <bold>surface — measured by external standard of the prudent</bold> <bold>operator.</bold> Oil and gas lessee's negligence in causing damage to surface is measured by external standard of the prudent operator. <bold>7. Damages — evidence — rule requiring one to minimize his</bold> <bold>damages — not applicable.</bold> Oil and gas lessee's offer to reasonably restore premises, which lessee had cleared in preparation for drilling a well<page_number>Page 632</page_number> which was never drilled, and landowner's refusal of such offer because lessee would not restore topsoil, did not relieve lessee from liability under rule requiring landowner to minimize his damages. <bold>8. Damages — land — measure of permanent damage to land — before</bold> <bold>and after rule.</bold> Measure of permanent damage to land is usually the difference between fair market value of entire tract before injury and fair market value after injury. <bold>9. Damages — land — measure of temporary damage to land — before</bold> <bold>and after rule not applicable.</bold> The before and after rule does not apply where damage to land is temporary or involved only a small part of a larger tract without affecting the remainder. <bold>10. Minerals — negligence in clearing drilling site for well</bold> <bold>that was never drilled — damage to surface — before and after</bold> <bold>rule not applicable.</bold> The before and after rule was not applicable in measuring damages to surface because of oil and gas lessee's clearing site for well which was never drilled, where injury was partly reparable and remaining tract would not be damaged if location was restored. <bold>11. Minerals — negligence in clearing drilling site for well</bold> <bold>that was never drilled — damage to surface — items measuring</bold> <bold>damages.</bold> Items measuring damages to surface from oil and gas lessee's negligence in clearing site for well which was never drilled should consist of (1) cost of substantially restoring damaged area by leveling land to its former contour and re-establishment of terraces; (2) cost of fertilization and planting of grass seeds on restored area; (3) cost of repair of light wires and water lines; and (4) such sum as would fully compensate landowner for reduced productivity of portion of tract because of loss of topsoil. <bold>12. Minerals — negligence in clearing drilling site for well</bold> <bold>that was never drilled — damage to surface — award excessive.</bold> Award of two thousand five hundred dollars for damages to surface of land by acts of oil and gas lessee was excessive. Headnotes as approved by Gillespie, J.