Chitwood v. Lanyon Zinc Co., 93 Mo. App. 225 (1902). In the case of mere mining license, the title to the ores not dug is in the owner of the fee and not in the licensee, and after the ores are dug the title remains in the owner of the fee, unless there is a special contract to the contrary.

Gregg v. Roaring Springs L. & Min. Co., 97 Mo. App. 44, 70 S. W. 920 (1902). As between tenants in common, where one is in exclusive possession with the consent of the other, §§ 8766-7 have no application. See this case under chapter XXIV, below.

Ashcraft v. Englewood Min. Co., 106 Mo. App. 627, 81 S. W. 469 (1904). Rev. St. 1899, §§ 8766-8767, provide that an owner of mining land may post rules as to the time during which rights to mine thereon shall continue, and anyone thereupon signing the register may mine as a licensee during that time; if no such rules be posted a licensee may mine for three years. No rules having been posted by such a mine owner, a licensee entered and in consideration of a specified royalty sold his mining rights therein to others, the royalty to be paid as long as they operated the mining lots. The assignee, at the end of three years, registered under an agreement with the mine owner to have the right to mine thereon for eight years. Held that after the three years the assignor had no further right to royalties under his assignment.

Currey v. Harden, 109 Mo. App. 678, 83 S. W. 770 (1904). Where a statute (§ 8766, Rev. St. 1899) allows mining companies to make rules and regulations concerning the right to operate their mines, and provides that persons thereafter mining thereon shall be bound thereby and shall forfeit their rights for failure to obey such rules and regulations, and a mining company adopts a rule that those wishing to mine must register, and a person enters and mines without registering, but the company knowingly permits him to do so, the company cannot thereupon forfeit the rights of such miner without first offering him an opportunity to register.

Arbuthnot v. Eclipse Land & Min. Co., 115 Mo. 600, 92 S. W. 170 (1906). An instrument in writing under seal, granting permission to mine on a certain lot so long as the grantees do regular mining work on the lot, is a license and a grant of an incorporeal hereditament; it is not a lease because it does not pass such an estate as would support an ejectment. But whether a verbal contract is a lease or license is immaterial, because §§ 8766-7, Rev. St. 1899, provide that it shall remain in force for a term of only three years. "Where a lessee of mining land plats it and posts rules omitting to name the time for the continuance of miners' rights to operate as required by statute, then the license continues for a period of three years and no longer."

Continental Zinc Co. v. Amsden, Leonord & Co., 125 Mo. App. 512, 102 S. W. 1087 (1907). "A mining licensee is without possessory right and cannot maintain forcible entry and detainer or trespass, and in short is without any legal remedy whatever for injuries to the possession."

Montana.

Clark v. Wall, 32 Mont. 219, 79 Pac. 1052 (1905). Where by verbal agreement one is given the right to mine in certain premises during the will and pleasure of the owner, the right to terminate upon notice to that effect given by the owner, such agreement does not constitute the relation of landlord and tenant between the parties, and the licensee has no right in and to the realty, but merely to the minerals as personalty when severed from the land. If the licensee refuses to vacate the premises when notified so to do by the owner, and continues to mine ore, and is insolvent, the owner is entitled to an injunction to restrain him from further operations on the premises.

Oregon.

Stinson v. Hardy, 27 Or. 584, 41 Pac. 116 (1895). See this case under Chap. XXV, Div. IB, below.

Hall v. Abraham, 44 Or. 477, 75 Pac. 882 (1904). An agreement whereby one gives to another an option to purchase certain premises with the privilege of prospecting and mining thereon may be characterized as a license coupled with an interest, and, the licensee having gone into possession, performed labor, and made expenditures in pursuance thereof, the license is irrevocable. The licensee is entitled to the exclusive right of possession during the continuance of the agreement in force; he has an interest in both the realty and the ores produced from the mine, and cannot be divested of either without his consent, except by virtue of the provisions of the agreement itself.

Pennsylvania.

Chalfant v. Rocks, 212 Pa. 521, 61 Atl. 1105 (1905). An agreement provided that "L. doth bargain and sell unto the aforesaid C. all that certain tract or parcel of coal containing three acres for the sum of three hundred dollars, situated, etc. # * The said C. is not to sell any coal only what he hauls himself or have hauled, also cannot sell the said three acres of coal to any person or persons but L. his heirs or assigns. But has no privilege of surface. Said C. has the privilege of

dumping."

C. having died, his heirs could not maintain ejectment. The agreement "cannot reasonably be construed as more than a personal license." "There is no indication of any further instrument being in contemplation, and the restrictions in this one are incompatible with a conveyance in fee, but entirely in harmony with a personal license."

Cole v. Ellwood Power Co., 216 Pa. 283, 65 Atl. 678 (1907). "If a license, or privilege, to do something on the land of the licensor is given by parol, then followed by the expenditure of money, on the faith of the parol agreement, it is irrevocable and is to be treated as a binding contract. Equity treats the license thus executed as a contract giving absolute rights, and

protects the licensee in the enjoyment of those rights." A parol lease of a quarry upon which money has been expended confers a property right for which damages may be recovered, when it is taken in condemnation proceedings.

Wisconsin.

St. Anthony Min. & Mill. Co. v. Shaffra, 138 Wis. 507, 120 N. W. 238 (1909). A mining lease or license within St. 1898, c. 75, is irrevocable after a valuable discovery or prospect has been struck, except where the miner forfeits his rights by negligence such as establishes a forfeiture according to mining usages.

This act, § 1647, declares that the discovery of a "crevice or range" containing ores or mineral shall entitle the discoverer to the ore or mineral, subect to the rent due the landlord, before as well as after separation from the freehold. "Crevice or range" in its local significance meant a mineral bearing vein, and not the ore bodies belonging to the same geological stratum and covering a large district. Under this section the miner who is operating, under a lease or license from the owner of the land terminable at the will of the latter, is given the right, in case he discovers a prospect, to continue his exploration free from any right of the lessor or licensor to cut him off by relocation before the prospect so discovered was explored sufficiently to determine whether it would lead to a discovery or not, and in case he discovers a crevice or vein, to entitle him to follow that deposit of ore within the lines of the land upon which he was licensed to work lengthwise, sidewise and downward until he had exhausted the crevice or vein, paying the agreed or customary tribute or royalty to the landowner in the meantime. "Discovery" does not mean the development and uncovering of a mineral deposit in a known mineral bearing lot and alongside of the old workings which had existed long prior to the inception of the license.

V. OIL AND GAS LEASES.

p. 74. It follows logically from the unstable and fugitive nature of oil and gas that they are not capable of distinct ownership in place apart from the soil in which they happen at any time to be. The creation, therefore, of a corporeal estate therein while in the ground by deed or reservation, which attempts their severance from the surface, is impossible. This view, which was stated in the first volume of this work, has been further emphasized by the recent cases in Indiana and Pennsylvania. (These cases are collected on pp. 94-101, below. See, also, Chap. I, Div. V.) In West Virginia, however, the courts have lately taken the posi tion that there is no difference between the stable and the un

stable minerals so far as the nature of the property that may be had in them is concerned. This view has also been followed in Kansas and Texas. Since these cases stand by themselves, and find no place in the classification adopted by us, yet are important as illustrating the view of the courts of two of the most important oil producing states, they are here collected.

Kansas.

Moore v. Griffin, 72 Kan. 164, 83 Pac. 395, 4 L. R. A. (N. S.) 477 (1905). The owner of land, having first executed an oil and gas lease, conveyed the land, reserving all the rights, privileges and benefits secured to him under the oil and gas lease, adding "it is intended hereby to reserve all oil and gas privileges in and to said premises and to lease and transfer the same." This was held to be an exception. "Different estates may be created in the surface and soil of lands and the underlying strata in which minerals, oils and gas may be found; and this separation of estates may be accomplished by an exception in the deed conveying the lands, by which the grantor carves out and retains the right to the minerals in the land. The right retained by the exception is the ownership of the minerals." The force and effect of the exception in this case "was to carve out a separate estate in the oil and gas from the estate in the surface and soil. The title to the surface and soil passed to the grantee and the title to, and ownership of, the oil and gas in the lands remained with the grantors."

Texas.

Southern Oil Co. v. Colquitt, 28 Tex. Civ. App. 292, 69 S. W. 169 (1902). A conveyance to a grantee, its heirs and assigns, of "all the oil, gas, coal and other minerals in and under the homestead of T and wife, together with the rights of ingress and egress at all times, for the purpose of drilling for oil, gas, or water, reserving to the said T one-tenth of all the oil produced and saved from the premises," with the provision that five years were given within which wells should be sunk, but that a forfeiture could be prevented by paying an annual rental of twenty-five dollars until the wells were completed, is such a conveyance of a part of the homestead as requires the joinder of the wife under Bates Ann. Civ. St. art. 636.

"It is held that oil in place under the soil is a mineral and that minerals in place are land. An oil lease investing the lessee with the right to remove all the oil in place in consideration of his giving the lessor a certain per cent thereof is in legal effect a sale of a portion of the land. Such a contract, as above stated, is a conveyance of the land."

West Virginia.

Harris v. Cobb, 49 W. Va. 350, 38 S. E. 559 (1901). A deed by which a tract of land was conveyed in fee contained the provision: "The parties

2B & A5

of the first part reserve unto themselves and do not convey by this deed the equal one-half part of the usual royalty of one-eighth of all the petroleum or oil in and underlying the tract of land hereby conveyed." Held to be an exception of the title in fee to the one-sixteenth of the oil in place and underlying said tract of land, to be delivered to her when produced, without expense to her for production. The grantee in the above deed leased the land to another with exclusive right to operate for oil and gas, reserving one-eighth of the oil to be set aside in the pipe line to his credit. This was held not to refer to or include the one-sixteenth outstanding in the original grantor. "The parties [to the first deed] were conveying real estate, and their declaration that they were not conveying or intending to convey a certain part of a substance as much a part of the real estate as the soil itself, and as much a subject of transfer as coal, iron or other mineral, clearly made it an exception."

Preston v. White, 57 W. Va. 278, 50 S. E. 236 (1905). A deed conveying a tract of land contains the clause: "But it is expressly understood and agreed that there is reserved from and not included in the above sale or conveyance seven-eighths of all and any oil and gas that may be on, in or under the said land, with full right and privilege to said Bennett, his heirs and assigns, to develop and operate the same." This excepts, and does not pass to the grantee, the oil and gas in place in the land, and the oil and gas remained vested in the grantor as an actual, vested estate and property, and not an incorporeal hereditament in him, nor a mere license to produce oil and gas, and title in the grantor to the oil and gas is not in abeyance, to vest only when the oil and gas shall be developed and brought to the surface by the grantor. A subsequent conveyance by such grantor of such oil and gas vests in the grantee like estate and property in the oil and gas as was vested in such grantor. The owners of the undivided seveneighths of the oil and gas having brought a bill for partition, the court ordered a sale thereof, holding that these minerals were not susceptible of division.

"Oil and gas in place are a part of the land itself. But when the owner of land conveys to another the oil or gas, that oil or gas becomes a property distinct from the residue or remnant of the land, distinct from the 'surface', as the expression is in the books. The oil and surface are then two properties under distinct ownership, but the oil none the less a real corporeal property than the surface or soil itself. Being part of the land, and thus owned by the owner of the land, he can sever its ownership. When thus severed in ownership, the owners own two separate interests and are not cotenants. When thus severed in ownership, the minerals become a separate corporeal hereditament, and their ownership is attended with all the attributes and incidents peculiar to ownership of land. Oil and gas are minerals and fall under these principles."

*

"It makes no difference that oil and gas are fluent and wandering for the present question. White and the Bennett heirs might lose the oil and gas by their migration from the land. If it were a contest between