Ackerman v. Hartley, 4 Halst. Ch. 476 (1850). A. New Jersey. leased to B. a certain lot, with the privilege of working the quarry thereon, for $250 a year, and further, by the same lease, agreed that he should have the use of all of A.'s right in an undivided quarry on the adjoining lot. B. did not work the latter during the term. When the lease expired no new lease was made, but B. continued to quarry on the former lot at a rent of $200 per year. B. was held to have no interest after the expiration of the lease in the adjoining lot, and he was enjoined from mining thereon.

Shaw v. Wallace, 25 Law, 453 (1856). A contract to raise ore, not less than a certain amount per annum, from the mines on certain land, for which the contractor was to receive a certain sum per ton, to have tools furnished, and the use of the land and buildings, may be construed as a lease of the surface, the lessee paying the rent by labor in the mine. The contractor had the right of exclusive possession of the land and mines, and might maintain trespass against the owner for entering and mining. Patton v. Axley, 5 Jones Law, 440 (1858). An North Carolina. agreement leasing land for the purpose of examining for minerals at a royalty, payable quarterly, the lease to continue so long as lessee deems it proper to operate, and to be forfeited in case of abandonment of operations for one year, is a lease from year to year.

New York.

Baker v. Hart, 52 Hun, 363 (1889). A lessee of lands, with all the exclusive rights to the premises and to quarry stone, has an interest in all the stone in the quarry, and may maintain trespass against an adjoining owner who quarries and takes out stone from the land. His property is not limited to the stone which he himself takes out.

Pennsylvania.

Moore v. Miller, 8, 283 (1848). "In estimating the language which constitutes a lease, the form of words

If

used is of no consequence. It is not necessary that the term 'lease' should be used. Whatever is equivalent will be equally available. the words assume the form of a license, covenant or agreement and the other requisites of a lease are present, they will be sufficient. Co. Litt. 45 b; Bac. Abr., tit. Lease K."

An agreement that Miller should enter and dig for ore, build houses, etc., he to pay as a compensation to the owner of the land fifty cents for every ton of ore, was, in substance and fact, a lease. But whether it was only a tenancy at will or constituted a lease for a year, was a question of fact to be determined from the evidence; and as the evidence was in pais and the alleged lease by parol, it was a fact properly referable to the jury.

Sheets v. Allen, 89, 47 (1879). A parol agreement that a person may enter on the land of another, dig ore, erect buildings, etc., for a consideration amounts to a lease. So of a lease of land with the right to dig clay.

"In the mining districts leases of lands for purposes of taking ore, coal, or petroleum are common, wherein the tenants are restricted to the use of only so much of the surface as necessary for mining purposes, with right in the lessor to use the surface as he chooses, save

that he may not interfere with the rights of the lessee. Frequency the lands are unoccupied for any purpose other than the mining, and frequently they are occupied by the lessor for agricultural or other uses. The actual possession of the tenant, carrying on his mining operations, is notice of his interest to a third person as fully as is the tenancy of a dwelling-house. And if the lease is for a term not exceeding three years, it is valid, though not in writing. A parol agreement that a person shall enter on the land of another, dig ore, erect buildings, etc., and pay fifty cents a ton for all ore removed, amounts to a lease. Moore v. Miller, 8 Barr, 272. Like principles apply to a lease of land with right to quarry minerals or dig clay. The right of a tenant in possession, under such a lease, is not extinguished in favor of a purchaser who knew the fact."

Brown v. Beecher, 120, 590 (1888). A demise of land for a term of years, "with the sole and exclusive right and privilege during said period of digging and boring for oil and other minerals, and of gathering and collecting the same therefrom," conveys an interest in the land, a chattel real, but none the less a chattel.

Wisconsin.

Ganter v. Atkinson, 35, 48 (1874). Agent of owner of land by verbal contract gave plaintiff the sole right to mine ore in a certain part of it upon the following conditions: Plaintiff was to begin work at the bottom of a hole already sunk about midway between the north and south boundaries of the land, and about two hundred feet from the east boundary, and was to run a drift quartering to a point on the east boundary line a little south of southeast of said hole. He was to have the exclusive right to work and take out all ore found in the drift or in the openings or crevices between the line of the drift and the east boundary line of the land. He was also to have the exclusive right to take ores out of or to mine upon the triangular piece of ground bounded by a line drawn directly eastward from the said hole to the east line of the forty, by said east line, and by a line between said hole and the point where said drift was to strike the east line. In consideration, plaintiff was to pay one-eighth of the ores which he might take out. It was the intention to give plaintiff a written lease to mine upon said land with rights as above, but this was neglected. This created something more than a mere license. It is not distinguished from a parol lease with an exclusive right to search for lead ore and prosecute mining operations. It gave the plaintiff an interest in the land, and property in the minerals which he should find within the specified limits. He had a right of action against a trespasser who took ore within these limits. His interest was a lease from year to year within the Statute of Frauds.

III. INCORPOREAL RIGHTS TO MINERALS.

The interest in the minerals underlying land often consists in rights to take the minerals, of greater or less extent, but unaccompanied by any property in the minerals in place. These rights are classified as licenses of which the next section will treat and as incorporeal hereditaments or rights to minerals.

-

These rights, though often spoken of as easements, are not truly such, as their enjoyment consists in the consumption of the subject of them. Though they carry with them certain easements necessary for their use and enjoyment, they have been considered as really analogous to rights of common in gross. They are not, however, true commons of turbary, for they are without stint, the dominant tenant not being limited to taking out what he may need for his own consumption.

An incorporeal hereditament to mine, unlike a corporeal right, is not exclusive of the right of the owner of the servient tenement, and in construing a grant of mining privileges their nature depends upon the intention to make them exclusive or otherwise. This seems to be the test in determining between corporeal and incorporeal rights.

On the other hand, being, as they are, interests in the land, and not a mere permission to take minerals from the land, incorporeal rights differ from licenses in that they are irrevocable; and the grantee is liable for rent whether he has exercised his right or not, unless, of course, the rent is a mere royalty depending upon the extraction of minerals.

These rights, moreover, are indivisible, but they may be assigned as a whole. Ejectment will not lie for them. They may be appurtenant to another piece of land, as, for example, to a furnace property.

Incorporeal hereditaments, at common law, lie in grant, and may be conveyed by deed of grant only. Incorporeal rights to mine are of course subject to the rules governing incorporeal hereditaments generally, and, generally speaking, a deed is necessary to pass such an interest. An attempt to do so by parol Iwould at most amount to a license.

The grantee has no title to the minerals themselves until they have been taken out; he has no property to them in the ground. While they are in the land, his interest is a right to take them out. Those remaining in the ground belong to the owner of the ground. So these incorporeal rights to mine are sometimes described merely as mining rights, though that term may include licenses and the rights of the owner of the minerals.

The different courts, in describing incorporeal rights to mine, have variously, and at times simultaneously, designated them as "incorporeal hereditaments," "liberties," "privileges," and

"licenses." Necessarily confusion has resulted. Most of the courts have followed the lead of those of Pennsylvania; but in the New Jersey cases, agreements by which a party is to have the right and privilege of mining on certain land are distinctly treated as licenses with which an interest is coupled.

There is no substantial difference between this interest and the incorporeal rights described in the Pennsylvania cases. The difference in nomenclature seems to have had its rise in the first American case in which the subject was given extensive consideration. In Grubb v. Bayard, in the federal court of the circuit which embraces both Pennsylvania and New Jersey, the estate in question was described by the court both as an incorporeal hereditament and as an irrevocable license. This case is cited as authority for the decisions which follow in both of the States mentioned, the latter term being persistently used in New Jersey to describe what is likewise held to be an incorporeal hereditament in Pennsylvania.

The language of the court in East Jersey Co. v. Wright indicates that it is the purpose to distinguish between an incorporeal hereditament and a license coupled with an interest. If there is such a purpose, it is submitted that this case stands alone. The distinction is between a naked license and an incorporeal hereditament, the latter being an interest in the land. When, however, by the terms of a license, an interest is coupled with it, there is nothing to distinguish it from an incorporeal hereditament. Licenses proper will be considered in the next section.1

in

Rutland Marble Co. v. Ripley, 10 Wall. 339 (1870). United States. R. and B. being co-tenants of a tract of land, the former released and quitclaimed to the latter, reserving "the right to enter upon and take possession of the said twenty-one acres for the purpose of digging, quarrying, and carrying away all the marble he or they might want, according to the stipulations and conditions of a contract that day made and concluded between the said R. and B., case the said B., etc., should refuse to fulfil the conditions and stipulations of the said contract." The contract referred to was to quarry and deliver marble to R. Strong, J.: "Neither the contract nor the reservation in his deed gave him a corporeal interest in the marble in situ. It was not a grant to him of the marble, or a grant of the right to quarry and take it all. If his interest was real in any sense, which may be doubted, it was incorporeal. Of course it was not

1 In addition to cases here cited, see those collected below under Div. V., B., this chapter.

California.

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exclusive of the right of the owners of the land to take marble on their own account ad libitum." Lord Mountjoy's Case cited. "Other decisions asserting the same doctrine are at hand. Caldwell v. Fulton, 31 Pa. 475; Johnstown Iron Co. v. Cambria Iron Co., 32 Pa. 241; Gloninger v. Franklin Coal Co., 55 Pa. 9. In all of them the covenants ran with the land. The grants were of undoubted real interests. They contemplated a perpetual supply to the grantees as plainly as it was contemplated in this case. The rights of the grantees were not limited as here to any defined quantity, and yet it was held they did not interfere with the right of the grantor to take ore, coal, etc., from the property out of which the incorporeal interests issued, and to take it without stint." Smith v. Cooley, 65, 46 (1884). The owner in fee of a tract of land granted to another an interest therein, describing it as an undivided third interest in a certain piece of mining ground," described by metes and bounds, "together with the water rights, reservoirs, and tail-race belonging to the same, and it is expressly conditioned that this instrument conveys no other rights except a mining right on the premises above to the said party of the second part, his heirs and assigns." Held, the grantor could not maintain partition against his grantee. "A mining right upon a specified piece of ground is a right to enter upon and occupy the ground for the purpose of working it either by underground excavation or open workings, to obtain from it the minerals or ores which may be deposited therein. By implication the grant of such right carries with it whatever is incident to it, and necessary to its beneficial enjoyment. But it did not convey the exclusive dominion of any portion of the ground so as to make the grantee a joint tenant in common with the grantor. It conveys only a particular estate or incorporeal hereditament in land of which the grantor held the general estate.

This estate is in its nature incapable of partition; it differs from a mining claim.

Gaston v. Plum, 14, 344 (1841). A., owner of a Connecticut. tract of land supposed to contain minerals, by a written instrument granted liberty to B. to dig or mine on such lands, and to carry away any minerals which he might dig thereon within one year. B., by writing, assigned to C. all his interest, right, and privilege in the land therein mentioned, with the appurtenances and all benefits and advantage derivable from such instrument; after which B. brought a bill in chancery against A. and others for specific performance of the agreement. Held, that the agreement was not of a fiduciary character, or in the nature of a personal confidence so as to be incapable of assignment, nor was the interest of B. of that uncertain or contingent description that it could not on that account be transferred; and consequently that B. having parted with all his interest in the subject of the bill, it ought to be dismissed for that reason.

Kamphouse v. Gaffner, 73, 453 (1874). "A beneficial Illinois. privilege in mines, as a license to work mines, can only be granted by deed." "Every license, therefore, that authorizes such acts as not only require to be performed upon the land, but which give some usufruct of the land itself, is properly a grant of an incor poreal hereditament, and must be created and transferred by deed."