Lulay v. Barnes, 172, 331 (1896). By recorded articles of agreement R. sold to L. a tract of 128 acres, described by adjoiners, and also "the coal right in the northern hill, as far as the centre, between the southern and northern boundary," with a right of way. This passed a fee in the coal, the location of which could be established by parol evidence. It was error to hold that the conveyance failed because of the vagueness and uncertainty of the description.

Sobey v. Thomas, 39, 317 (1876). An oral lease of Wisconsin. the exclusive right to mine the "Watkins range or works" upon the lessor's land conveys a right not only to mine said range so far as it had been actually opened and worked, but also to follow it to the limits of the land. But such lease did not give the right to work a vein on another portion of the land between which and the former no connection was shown to exist within the said tract, although a connection had been traced by a circuitous course through the adjoining land of another. The Watkins range" was a flat opening, the ores being found in a horizontal instead of a vertical seam. Though the original opening might have been connected with the second vein by drifting in a direction across the range, yet in the absence of proof this will not be presumed merely from the nature of the opening.

These

Ross v. Heathcock, 52, 557 (1881). For a consideration named defendant conveyed to a company for the purpose of mining and digging the mineral thereon, certain described tracts of land. were described by government subdivisions, followed by the words "and known as the Heathcock range." This did not give the grantees the right to follow this range and mine thereon when it was traced or developed subsequently on other land belonging to the defendant. Nor is this affected by the fact that the parties at the time of entering into the contract were mistaken in the course of the range.

Nor is this right gained by the following subsequent conveyances or contracts:

1. A lease of the right to construct a dam and maintain a watercourse on the said land.

2. An adit lease giving the privilege of opening an adit or level thereon, with the privilege of sinking the necessary shafts to run said adit, and of following and digging after any mineral that the company might discover in running said adit or sinking said shafts," but not to follow such mineral further east than where the said adit or level commences."

B. Fixtures and Appurtenances.

There is nothing peculiar to the law of mining on these subjects. For the principles involved, the reader must refer to the books on Real Estate Law, Conveyancing, and Landlord and Tenant. The plan of this work does not contemplate a discussion of them, but the principal cases in which these principles are

applied to mines and mining property are collected here as a convenient arrangement.1

Merritt v. Judd, 14, 59 (1859). A steam engine,

California. boiler, and pump, bedded into the ledge sufficiently to get a level, and covered by a shed for shelter, and used in working a mine, are fixtures of the class known as trade fixtures, removable by the tenant during the term, or so long as he holds under a right to consider himself a tenant. This right of removal may be controlled by agreement of the parties or by local usage.

Such machinery as described above is included in the term "improvements" in a provision in a lease that improvements were to go to the lessor on forfeiture.

Dietz v. Mission Transfer Co., 95, 92 (1892). The owner of a large ranch conveyed a part of the tract, excepting "all oils, petroleum, asphaltum, and other minerals," and then conveyed to another the rest of the ranch and the reserved minerals.

The grantee in the first deed "granted and sold" to the grantee in the second "all the buildings, tanks, derricks, pipes, pipe lines, fixtures, and all other personal property whatsoever," situate upon any portion of the ranch. This was not a mere conveyance of these as chattels, but gave the right to occupy sufficient land for the use of said property for the purposes and in the manner it had heretofore been operated.

Dobschuetz v. Holliday, 82, 371 (1876). A steam-engine,

Illinois. machinery, and fixtures attached to the soil by a lessee

thereof, for the purpose of hoisting coal from mines, including all boxes and necessary appurtenances, remain a part of the lessee's

estate.

Hewitt v. General Elec. Co., 61 Ap. 168 (1895). Where the lessee of a mine puts into it a machine for mining coal without the intention of making it a part of the realty, but merely for the purpose of transacting the business of mining, and the machine may be removed without injury to the realty, it does not become a part of it.

Bewick v. Fletcher, 41, 625 (1879). F. entered into an Michigan. agreement with L., by which he put up machinery for bor

ing a salt well on L.'s land, in consideration of which he was to have had a share of the property and business. The well was never sunk, and L. sold the land to B. Held, the machinery did not pass. "The machinery was put upon the ground to sink a well, which is a temporary purpose. It was not so attached to the freehold as not to be removed without injury, and therefore, on well-settled principles, it could not become realty without either being intended or especially adapted for permanent use as a part of the freehold.”

Lake Superior Co. v. McCann, 86, 106 (1891). A lease of premises for the purpose of mining, etc., iron ore, provided that the lessee would at the termination thereof peaceably surrender the

1 In California by statute certain things are declared to be affixed to a mine. Civ. Code 1885, sec. 661; and in Montana by

Civ. Code 1895, sec. 1077. See "Mortgage of Leasehold," p. 140.

premises, etc., "and other improvements and erections that may be thereon, engines, boilers, machinery, tools, implements, and other movable personal chattels excepted.'

This made engines and boilers personal property as between the lessor and an execution creditor of lessee, and having been so made by the agreement, they cannot be treated as trade fixtures.

Audenried v. Woodward, 4 Dutcher, 265 (1860). New Jersey. "It satisfactorily appears from the proofs that it was the business of the tenant of a colliery and not the landlord to provide a breaker for preparing the coal for market."

Davis v. Moss, 38, 346 (1861).

A lease of the

Pennsylvania. entire mining right of and to a certain piece of land, with the privilege of erecting the necessary machinery and buildings, passes so much of the surface as is necessary to the enjoyment of this right, and an engine erected on the surface is attached to the subject of the grant, and is subject to the law relating to fixtures.

Carey v. Bright, 58, 70 (1868). It is not error to refuse to charge a jury that a sale of all the seller's interest in a colliery included “all the movable property belonging to and used at this place in the mining of coal, and that the word 'colliery' is a collective compound including many things, and is not limited to the lease and fixtures of a tunnel, drift, shaft, slope, or vein from which the coal is mined."

A colliery is a place where coals are dug, and while many things about a colliery may be fixtures, and pass as a part of the freehold, mere loose movables about such an establishment, in the absence of any usage or general understanding, are not such.

Heffner v. Lewis, 73, 302 (1873). Plaintiff and defendant leased adjoining coal lands to the same lessee; and a tunnel was made through plaintiff's land to reach defendant's, upon which was the opening to the slope. A levy was made on the leasehold interest in defendant's land, with the appurtenances, consisting, among other things, of "the railroads in and about, and connected with the said mines." Whether this included the rails of a railroad laid in the tunnel was a question for the jury. These rails were personal property.

Williams' Ap., 1 Monaghan, 274 (1889). The sale of land having upon it a slate quarry and factory, carries with it as fixtures such articles as are necessary for the purpose of carrying on the business of mining and manufacturing slate, and were actually used for that purpose.

Montooth v. Gamble, 123, 240 (1888). By articles of agreement a coal plant, including chutes, tipple, sidings, and cars, with the coal under a tract of land, was sold and conveyed, the privilege of mining and removing the coal to continue not longer than for a specified term, the coal then unmined to revert to the vendor.

There was no covenant to repair nor to return anything upon the premises connected with the works, but the agreement contained a clause leasing to the vendee certain miners' houses for use while the coal was being mined, not longer than for the term specified; the vendee not to remove houses, shops, or other buildings.

In such case the agreement was an absolute conveyance of the coal plant and coal which should be mined, and the vendee had the right to remove the chutes, tipple, sidings, cars, and other appliances necessarily connected with the mining and transportation of the coal. The lessor could not maintain covenant, therefore, at the expiration of the lease.

Ritchie v. McAllister, 14 C. C. R. 267 (1894). A tramway, cars, scales, and tipple being upon defendant's land, placed there by him for use in mining, removing, and marketing limestone, and necessary for that purpose, and without which the limestone quarry would not be a quarry equipped for the purposes intended, are part and parcel of the realty.

Shellar v. Shivers, 171, 569 (1895). On Nov. 11, 1885, S. leased to A. for oil and gas purposes for "three years, or as much longer thereafter as oil or gas might be found in paying quantities," lessee to have "the right to remove at any time any and all machinery, oil-well supplies, or appurtenances of any kind belonging to the lessee." The lessee sunk a well in 1887, but, failing to find oil, abandoned the lease. In October, 1892, he entered for the purpose of taking the casing out of the hole that had been drilled, and removing other fixtures that had been used in drilling the same. He was held to be a trespasser, no oil or gas having been found in paying quantities. The lease expired on Nov. 11, 1888. The casing, the derrick, and other appliances used in drilling and operating are trade fixtures, and can be removed by the lessee during the term of the lease. The right to remove fixtures at any time given by the lease did not enlarge the right of the lessee. The right to enter at any time and to remove machinery at any time was predicated to that part of the term that was uncertain, that is, after three years. The lessee had the right at any time to enter and drill additional wells if oil or gas was being produced in paying quantities, in which case, the tenancy being uncertain in duration, the tenant would have a reasonable time for the removal of the fixtures. Four years was not a reasonable time.

IV. THE SUBJECT OF THE LEASE AND the Right of the LessEE TO MINERALS NOT ENUMERATED IN HIS LEASE.

It seems clear that when one or more minerals are mentioned in the lease, the lessee will be confined to the extraction of these alone, and if in the course of mining he extract others, he will be held liable to compensation and an account for their value to the lessor, and will be enjoined from further removal of them. This is true whether the unenumerated minerals escape by reason of their own force (as is frequently the case, when, in boring for oil, natural gas rises to the surface and is appropriated), or are purposely or accidentally removed by the labor of the lessee.

A contrary rule, however, has been adopted in West Virginia as to natural gas.1

In determining what is included in a lease, the familiar rules of construction are applied. The grant is construed most strongly against the grantor. The whole contract must be considered in arriving at the meaning of any of its parts. Terms are to be understood in their plain, ordinary, and popular sense, unless they have acquired a particular technical sense by the known usage of trade. They are to be construed with reference to their commercial and their scientific import. This rule is of especial importance when the question arises whether a specific mineral is included in a general designation.

Terms descriptive of the mineral granted or demised must also be construed with reference to their meaning at the time of the execution of the lease. They are to be construed to include only those in common use and commonly known by such terms at that time. Minerals which by subsequent discoveries of science are brought within the definition of the terms used are not included, if not so known at the date of the grant. If, however, the lease shows an intention to contract upon the basis of the possibility of such subsequent discoveries, this rule is not applied.

Though a particular mineral was not known to exist at the time of the grant, it will pass thereby if it is fairly included in the general terms used.

Deer Lake Co. v. Mich. L. & I. Co., 89, 180 (1891). Michigan. A deed contained a reservation of "all mines and ores of metals that are now or may be hereafter found on the said lands, with the right... to mine and carry away the mineral thereon." At the time no marble or serpentine was known to exist in the country, iron being the only valuable mineral found in that region. The reservation was held to cover only "mines and ores of metals and minerals in common use, and commonly known as such," and not to include marble, serpentine, or other building material.

Zinc Co. v. Franklinite Co., 13 Eq. 322 (1861). New Jersey. Under a grant of "all the zinc and other ores, except franklinite and iron ores," in a certain tract, the exception was not

1 The West Virginia case applies only property in the minerals feræ naturæ to natural gas, and that for the reason that until they are reduced to possession, yet there can be no property therein. Though when reduced to possession by a tenant the reasoning of this case might extend to it does not follow that the property is his. petroleum, it could not to the ordinary This is a proper case for the application minerals. of the principle that the tenant's possesWhile it is true that there can be no sion is the possession of his landlord.