Assumption of risk-Burden of proof............. Assumption of risk-Injury to workman. Safe place and appliances-Degree of liability... Employer not an insurer of safety of employees.. 166 166 167 167 169 169 Assumption of risk-Contributory negligence-Knowledge of danger.. Exercise of reasonable care-Proof of general practice... 170 170 170 171 171 172 Lease of lands and quarry-Grant of right of way-Construction. 173 174 ABSTRACTS OF CURRENT DECISIONS ON MINES AND MINING, DECEMBER, 1913, TO SEPTEMBER, 1914. BY J. W. THOMPSON. MINERALS AND MINERAL LANDS. MINERALS. ORES PROCESS OF ORE CONCENTRATION PATENTABILITY. The patent issued to Sulman, Pickard, and Ballot, November 6, 1905, and assigned to Minerals Separation and Minerals Separation American Syndicate, for new and useful improvements in ore concentration, its object being to separate metalliferous matter from gangue by means of oils and fatty acids that have a preferential affinity for such metalliferous matter, the principal feature of which is "agitating the mixture to cause the oil-coated mineral to form a froth," was clearly anticipated by other patents, and each step in the process described in the Sulman, Pickard, and Ballot patent is fully described in more than one of the prior patents, with the single exception of the reduced quantity of oil used; but the discovery that the small fraction of oil is sufficient to produce flotation of the metalliferous matter can not be made by itself or in combination, the subject of a patent. Hyde v. Minerals Separation, 214 Fed., 100, p. 109, May, 1914. ACTION FOR CONVERSION OF MINERALS. In an action by the grantor of a certain mine and mining property against his grantee to recover damages for the conversion of a quantity of ore that the grantor before the conveyance had mined and extracted from the mine and placed on the dump near the mine, the plaintiff is not entitled to recover where it appears that at the time the ore was placed on the dump the mine was owned and operated by a mining company and that at the time the ore was taken out of the mine the company had no intention of doing anything with it but simply deposited it on the dump as waste and to give an opportunity to develop the mine and get better ore to send to the smelter, and that at the time the ore was placed on the dump it was considered to be of no value, as in such case the ore so deposited remained a part of the realty and passed with the deed. Pittsmont v. Omega Copper Co. (Arizona), 141 Pacific, 847, p. 848, July, 1914. SALE AND CONVEYANCE. SALE OF TAILINGS LIABILITY FOR CONVERSION. A grantee under a contract to purchase an interest in mining property and by which he was given immediate possession of such mining property, with full power and license to prospect upon, work, develop, extract, and remove ore therefrom, and to continue the possession for 90 days, is liable, on failure to complete the purchase of the property, where after the expiration of the 90-day period he entered upon the mining property under a separate and subsequent contract and removed therefrom and appropriated to his own use a large amount of valuable ore in the form of tailings placed by him upon the dump pile during his possession under the former contract, as such tailings, on his failure to complete his contract of purchase continued to be the property of the grantor, and the subsequent contract authorized him to extract and remove ore from the mine orly. Savage . Nixon, 209 Fed., 122, October, 1913. CLASSIFICATION OF MINERAL LANDS FOR PARK PURPOSES. The act of March 2, 1899 (39 Stat., 993), creating Mount Ranier National Park, limited the right of selection to nonmineral public lands so classified as nonmineral at the time of actual government survey, but a selection valued for certain like purposes may be made of lands not classified as nonmineral, as the right of selection extends to unsurveyed lands, which in the nature of things can not be so classified, and such a selection is not invalid by the fact that the mineral surveyor did not classify it as nonmineral, and under the practice prevailing in the Land Department the absence of a classification as mineral is equivalent to and is to be understood as a classification of noumineral. West v. Edward Rutledge Timber Co., 210 Fed., 189, p. 195, July, 1913. CONTRACT OF PURCHASE-CONSIDERATION. A contract for the purchase of certain mining property providing for the payment of $100,000, $10,000 to be paid upon the signing of the agreement and the remaining $90,000 to be paid upon the delivery of the deed, together with an agreement to pay the vendor amounts in the aggregate to the sum of $1,000,000, 25 per cent of the net profits resulting from the operation of the mining properties, is not an absolute agreement to pay $1,000,000 for the property, nor is that the estimated value of the property, but is an agreement for a share in the profits of mining operations, and the payments are wholly contingent upon the success of such operations and must be measured by the amount of profit, the payment of which depends on the success of the enterprise, but in no event to exceed the amount of the remaining $900,000. Consolidated Arizona Smelting Co. v. Hinchman, 212 Fed., 813, p. 815. March, 1914. COVENANTS NOT RUNNING WITH LAND. An agreement reciting that in consideration of the execution and delivery of a deed to certain mining property and the sum of $1 the purchaser agreed to pay or cause to be paid to the original grantor of such property 25 per cent of the net proceeds resulting from the operation of the properties until there shall have been paid the aggregate sum of $1,000,000, the payments to be made quarterly or as soon thereafter as the net profits for the preceding quarter can be ascertained; and it was further agreed that the net profits should be the net proceeds from the operation of the mining properties after deducting the cost of mining, development work, transportation, treatment, and smelting, and all property charges incidental thereto, do not constitute a covenant that runs with the land, but is personal merely, and does not create an equitable charge on the property, and a purchaser with notice of the agreement is not bound to operate the properties and pay the vendor the stated percentage of the net profits. Consolidated Arizona Smelting Co. v. Hinchman, 212 Fed., 813, p. 817, March, 1914. MINERAL INTERESTS AS REALTY. Mineral interests are a part of the realty and the estate in them is subject to the ordinary rules of law governing the title to real property. Hoilman v. Johnson (North Carolina), 80 Southeastern, 249, p. 250, December, 1913. PRESUMPTION AS TO OWNERSHIP. The presumption that the person having possession of the surface has the possession of the subsoil containing the minerals does not exist when the surface mineral rights are severed. Hoilman v. Johnson (North Carolina) 80 Southeastern, 249, p. 250, December, 1913. MINERAL INTERESTS-NOTICE OF CLAIM. Mineral interests in land means all the minerals beneath the surface; and when a person claiming the ownership of the minerals sinks a shaft or opens a mine or gives notice of his claim to all such interests. |