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such an adverse claim is filed, Rev. Stats. 2332 is without application. The purpose of this section is to enable applicants who have been in possession of their claim for the period of the Statute of Limitations, but who are unable to make full proof of their rights, to obtain a patent when there is no one opposed to them.

420 Min. Co. v. Bullion Min. Co., 9, 240 (1874). When an Nevada. action on an adverse claim is brought, whatever may be its character, it must be tried by the same rules, governed by the same principles, and controlled by the same statutes that apply to such actions in the State courts, irrespective of the acts of Congress. Consequently the State Statute of Limitations may be applied. South End Min. Co. v. Tinney, 35 Pac. 89 (1894). Gen. Stats. sec. 3632 applies to patented as well as to unpatented claims.

South End Min. Co. v. Tinney, 38 Pac. 401 (1894). Against a plaintiff in ejectment claiming the legal title to a mining claim, the Statute of Limitations does not begin to run until the date of the patent by which he acquired that title.1

Marvin v. Brewster I. M. Co., 55, 538 (1874). The rights

New York. of the mine owner are not extinguished by non-user. To found an adverse possession by the surface owner, there must be some act on his part adverse and hostile to such rights, and which prevents the exercise thereof, as by an assumption of a control over the ore by digging it, or by preventing the owner from doing so. Filling up old cuts in veins made before the severance of the estates is not such an act.

Rader v. Allen, 27, 344 (1895).

The limitation contained

Oregon. in Hill's Ann. Laws, sec. 2178, does not apply to one claiming under a patent from the United States.

Caldwell v. Copeland, 37, 427 (1860). Title to Pennsylvania. mines distinct from the title to the surface may be

made out under the Statute of Limitations.

Possession of the surface

for more than twenty-one years does not carry with it the possession of the coal below it, where the title to the minerals has been severed from that to the surface by deed. When the surface owner seeks to establish title to a mine by adverse possession under the statute in opposition to his deed, he must prove possession of the mine as such independently of his possession of the surface.

Armstrong v. Caldwell, 53, 284 (1866). "It is, no doubt, the general presumption that a party who has possession of the surface of land has possession of the subsoil also, because, ordinarily the right to the surface is not severed from the right to the strata below the surface. But this presumption does not exist when these rights are severed. Each then becomes a distinct possession. In such a case, the possession of the surface, following the right, is as distinct from the possession of the minerals or subsoil strata which have been severed in right, as is the possession of one tract of land from that of another not in contact with it. Hence it is settled that when by a conveyance or reservation a separation has been made of the ownership of the surface from that of the underground minerals, the owner of the former can acquire no title by the Statute of Limitations to the minerals, by his exclusive and

1 Redfield v. Parks, 132 U. S. 239.

continual enjoyment of the surface. Nor does the owner of the minerals lose his right or his possession by any length of non-user. He must be disseised to lose his right; and there can be no disseisin by act that does not actually take the minerals out of his possession. There seems to be no reason why the Statute of Limitations should not be held applicable to all corporeal hereditaments, including those that are only, sub-surface rights. .. In Caldwell v. Copeland it was said that adverse possession of the mine by the owners of the surface for the statutory period would avail as title. But such possession must be distinct from that of the surface. It is unaided by surface rights or surface occupancy. What, then, is adverse possession of the coal in a tract of land, in a case where the owner of the land has by deed severed the ownership of the coal from the ownership of the surface? Its nature cannot be changed by the fact that it is more difficult of enjoyment. Like adverse possession of every other corporeal hereditament, it must be actual (as distinguished from constructive), exclusive, continued, peaceable and hostile for twenty-one years in order to give title under the Statute of Limitations. There is no reason for adopting a less stringent rule. The owner of the surface can acquire title against the owner of the minerals underneath by no acts or continuous series of acts that would not give title to a stranger. If the owner of a coal mine is not in actual possession, and the owner of the surface, or any other person, digs pits or drives adits into the minerals, and carries on mining operations there continuously for the statutory period adversely to the right of any other, he may acquire a right. In such a case he takes actual possession of the entire body of minerals in the tract of land. He may therefore acquire a title to the whole. But inasmuch as there cannot be any residence upon the coal, or cultivation without continual pedis possessio, or retention of the hold upon the mine, there can be no ouster of the owner, and consequently no acquisition of a right. If one digs turves or cuts wood upon another's land for his own family use, and if he even sells some of the turves he dug or the wood he cut to the neighbors, it is not pretended that he can acquire title to the land by such conduct, though repeated at intervals through the whole period of twenty-one years. The court below, therefore, erred in leaving to the jury to find that the plaintiff had acquired title to the coal by having taken out some of it for family and neighborhood uses, at intervals during twenty-one years, without any evidence that the taking had been constant and continuous."

The grantee of coal having made his first entry on the vein more than twenty-one years after his title accrued, the statute is not prima facie a bar. Having the title, the possession is presumptively in him or those holding under him, and the burden of proof is on one claiming adversely to him.

Kingsley v. Hillside Coal & Iron Co., 144, 613 (1892). When by a sale the ownership of unopened coal has been severed from the ownership of the surface, the subsequent possession of the surface by the vendor and his successors in title without opening the coal is not hostile to the owner of the coal; nor will a delay by the latter in opening up and taking actual possession of the coal affect his title thereto.

Plummer v. Hillside Coal & Iron Co., 160, 483 (1894). Where there has been a severance in title of the surface from the underlying coal, the continued occupancy of the surface by the vendor is not hostile to the title of the owner of the underlying estate, and will not give title under the Statute of Limitations. To affect the title of the owner of the coal, there must be an entry upon his estate and an adverse possession of it.

Moreland v. Frick Coke Co., 170, 33 (1895). Where there has been a severance of the title to the coal from the title to the surface, one who subsequently becomes entitled to the surface by adverse possession for the statutory period does not thereby acquire a title to the coal.

The plaintiff here exercised no rights of ownership over the coal. He was present at the negotiation for its sale, and made no objection. The coal was assessed for taxation separately from the surface, and plaintiff paid taxes only on the latter. He stood by while defendant mined, and made neither protest nor demand for compensation.

Lulay v. Barnes, 172, 331 (1896). Where the underlying coal has been severed from the surface, possession of the surface by the surface owner is not adverse to the owner of the coal. The latter was not bound to take possession of the coal, and his title was not affected by his mere failure to do so. South Carolina.

McBee v. Loftis, 1 Strob. Eq. 90 (1845). The right of mining can only be acquired by deed, and is not forfeited by a non-user of less than twenty years.

Wilson v. Henry, 35, 241 (1874). In an action brought Wisconsin. by one claiming under a tax deed recorded in 1858 to bar

the title of the original owner, it was error to reject evidence offered by defendant to show that from 1858 to the commencement of the action during the mining season of each year from two to ten miners had constantly worked and mined for lead ore upon said land, they being usually farmers, working their farms during the summer and mining during the winter, and working the land under verbal leases from defendant or his agent, to whom they paid rent; also "that a custom exists where the land is situated, making it obligatory upon the land-owner to hold mineral diggings for the miner operating them, during the summer season, though the miner does not work during such summer season; also that said mining was mostly near the surface and in open cuts so as to be plainly visible to ali.

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This evidence would not only disprove and destroy the constructive possession of the plaintiff, but would turn the Statute of Limitations against him by showing the actual possession and occupancy of the former owner.

Stephenson v. Wilson, 37, 482 (1875). Mining operations on land or its possession for the purpose of mining constitute an effective adverse possession as against a tax deed. "It may be difficult to lay down any precise rule as to the extent to which such mining operations should be carried on, to have that effect, but should the facts be established which it was proposed to show in Wilson v. Henry, 35 Wis. 241, we should deem them sufficient for that purpose." "Acts of mining and digging for lead ore upon the land, acts which are not merely

occasional, fugitive, and desultory, but are as continuous and constant as the nature of the business and customs of the country permit or require, do amount to such an assertion of ownership and possession as will interrupt the running of the statute in favor of the tax deed."

Wilson v. Henry, 40, 594 (1876). "It is settled in Wilson v. Henry and Stephenson v. Wilson that occupation under paper title by mining operations, continuous, visible, and notorious, may constitute actual adverse possession. And we have no doubt of the correctness of the rule. Sec. 7, ch. 138, Rev. Stats., was undoubtedly framed mainly in view of agricultural occupation; and in the circumstances of the State was undoubtedly wise and just. But though mining is a less general and important, it is still a frequent and important, industry here, entitled to protection as well as agriculture. It is not protected by the statute as agriculture is, but there is no reason why it should be proscribed by the statute, and we have seen that it certainly is not. While the law remains as it is, it is not an open question in this court that mining operations may constitute actual adverse possession."

Stephenson v. Wilson, 50, 95 (1880). Stephenson v. Wilson, ante, and Wilson v. Henry, 40 Wis. 594, followed and quoted with approval.

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I. WORKING AND SURFACE RIGHTS.

THE right to work mines when they are not severed from the inheritance has been discussed in the first chapter of this work. The subject for present discussion is the rights of the owner of minerals when the property in them forms a distinct inheritance or possession from that of the soil.

It is a general rule of law that, when anything is granted, all the means of attaining it and all the fruits and effects of it are also granted; when uncontrolled by express words of restriction all the powers pass which the law considers to be incident to the grant for the full and necessary enjoyment of it. Consequently a grant or reservation of mines gives the right to work them, to enter and to mine, unless the language of the grant itself provides otherwise or repels this construction. And this right is so inseparable from a grant of minerals, that not only is it necessarily an implied incident thereof, but it and its derived rights cannot be restrained or excluded by a special affirmative power to do other acts, or by a grant of other privileges necessary or convenient to the working of mines.

The right to work the mine involves the right to penetrate the surface of the soil for the minerals, to remove them in the manner most advantageous to the mine owner, and to use such means and processes in mining and removing them as may be necessary in the light of modern improvements in the arts and sciences.1 The welfare of miners. The statutes on this subject are treated of in Chapter XXV., Div. II.

1 Controlled, however, by such legis. lation as may be enacted for the protection of the lives, health, safety, and

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