event she was to have for life one-third her husband's interest in the land covered by the leases.

Findlay v. Smith, 6 Mumford, 134 (1818). The owner

Virginia. of land containing a salt well provided by will as follows:

"During the life of my wife it is my intention and request that A. B. and her do carry on my business in partnership, both salt works and merchandising, each equal shares; and that in consideration of the use of my capital they pay out certain legacies." Held, the life tenants might sink a new well, or tap the same vein as that drained by the salt well, and they might work the same to exhaustion. They also had the right to unlimited use of wood for fuel to carry on said works from woodland of testator, which he had in his lifetime used for that purpose.

Crouch v. Puryear, 1 Rand, 258 (1822). It is not waste for tenant by dower to take coal to any extent from a mine already opened, or to sink new shafts into the same vein of coal. The tenants may even penetrate through a seam already opened and dig into a new seam that lies under the first.

West Virginia.

Williamson v. Jones, 39, 231 (1894). See this case on p. 29.1

Koen v. Bartlett, 41, 559 (1895). A tenant for life, when not precluded by restraining words, may not only work open mines, but may work them to exhaustion. A tenant for life or his grantees are entitled to the rents and royalties from an oil lease executed by the owner of the land before the beginning of the life estate.

B. Tenants for Years.

A tenant for years, in the absence of provision in the lease showing a contrary intention, may work open mines, but may not open new ones.2

This right may be taken away by express provision in the lease, or by implication from the fact that the land was leased for a purpose other than that of mining. Of course when the privileges given by the lease impliedly carry with them the power to mine, the restriction to open mines is removed, and the tenant may open mines and work them. This is a common form of mining lease, which will be treated under that title below.

1 It should be observed here that in those States which have homestead laws, the consent of the wife is necessary to a conveyance or lease, and consequently to a mining lease. Franklin Co. v. Coal Co., 43 Kan. 518 (1890). The recitation of the lease in a subsequent conveyance in which the wife joins does not amount to such consent. Ibid.

But a license to remove minerals from

the land, when its enjoyment for the uses of a homestead is not thereby impaired, may be given by the husband without the assent of the wife. If her consent were necessary to give validity to a parol license, it would be presumed, if she had full knowledge of work done or expenses incurred thereunder and made no objection. Harkness v. Burton, 39 Ia. 101 (1874).

2 Mont. Civ. Code, 1895, § 1271.

Owings v. Emery, 6 Gill, 260 (1847). In 1840, N. O. Maryland. leased to E. & H. a granite quarry known by the name of F. R., with license of quarrying and getting away stone, for the term of six years, and the lessees went into possession. In 1836, B. & C., who had title, leased to D. all their estate and interest, being two thirds part of all that lot within the farm of N. O., called F. R., for the term of five years, which, before the action brought, came to E. & G. by assignment as to one-half. The metes and bounds in both leases were the same. In an action by N. O. for rent due November, 1841, under lease of 1840:

Held (1.) That the lease of 1836 was a grant of the superficies of the soil, and did not pass a right to the quarry, as it was not open at the date of that lease.

(2.) That this case is not one of conflicting leases, the deed of 1836 being a lease of the surface of the soil, that of 1840 a lease or license to quarry stone.

(3.) If a man hath land, in part of which there is a mine open, and he leases the land, the lessee may dig the mine; as the mine is open, and he leases all the land, it shall be intended that his interest is as general as his lease.

(4.) Making of new mines is a waste, unless the lease is of all mines on the land.

(5.) A declaration in a lease, dated 1840, that a quarry had been recently, or a short time ago, possessed and worked by W., cannot be understood as meaning that the quarry was opened for four years previously.

Harlow v. Lake Superior Iron Co., 36, 105 (1877). A Michigan. tenant for years may work open mines unless restricted by the terms of his lease, but he may not open a new mine unless the privilege is explicitly granted. The lease in this case was for the purpose of mining.1

Missouri.

McKee v. Brooks, 20, 526 (1855). A privilege given to a lessee of doing all such quarrying, grading, and levelling as may be deemed by him requisite and proper for carrying out his business of boat building, confers upon the lessee the property in the rock so quarried.

New Jersey. Shaw v. Wallace, 25 Law, 455 (1856). As a general principle, a lease of land carries with it the mines thereon. But this does not apply where there is a severance of mines and surface, and an exception or reservation of the former.

A lessee of the surface, paying rent by raising ore for his lessor from the mines in the leased premises, has no right to open new mines or sink new shafts or slopes, except so far as they are necessary to the proper and successful working of the mines already opened.

New York.

Freer v. Stotenburg, 2 Keyes, 467 (1866); s. c. 2 Abb. Dec. 189, reversing s. c. 36 Barb. 641. Where, by the terms of a lease, the lands are demised for agricultural purposes only, such limitation excludes the right of the lessee to dig stones from a quarry on the premises, though opened at the time of executing the lease.

1 This is consequently not in accordance with the general rule.

Kier v. Peterson, 41, 361 (1861). "If mines are alPennsylvania. ready opened, or if the lease permits their being opened, it is not waste for the tenant to work them even to exhaustion. Nor would it be waste to open new shafts or pits to follow the same vein." Heil v. Strong, 44, 264 (1863). Where land is leased for coalmining purposes, mining coal without paying rent, building houses and driving through faults without the lessor's consent, and appropriating the rents for the purpose, is not waste; and the lessor is not entitled to a writ of estrepement under the act of March 29, 1822, to prevent the same.

Penn. Salt Co. v. Neel, 54, 9 (1866). "Nor is the admissibility of T. N. as a witness for plaintiff questionable. G. had no interest in the subject-matter of the controversy; he had a lease of the surface land under which the coal was found, but he had no right to mine it, there being no opening on the leased premises through which he could do so, and no right, by virtue of his lease, to open a drift or entrance for such purpose."

Griffin v. Fellows, 81, 114 (1873). Where there are no open mines or quarries on the premises at the date of the lease, the mining of coal and quarrying of stone by a tenant for years are waste operating as a forfeiture of the term.1

These acts, however, may be authorized by the terms of the lease. They are so authorized by this language in the lease: "To have and to hold the above-granted and demised premises, with every privilege, right, member, and appurtenance whatsoever to the same premises belonging or in any wise appertaining, whether ways, waters, water courses, mines, and minerals of whatever description."

"If there be a lease of land with the mines in it, and there be no open mines, the lessee may dig for mines, otherwise the grant as to the mines will not take effect." 2

C. Owners of Equities of Redemption.

The owner of an equity of redemption who is in possession may mine, subject only to the restriction that the security of the lien creditor, whether his lien be by mortgage or execution, must not be endangered or seriously impaired.

Ward v. Carp River Iron Co., 47, 65 (1881). It is proMichigan. vided by statute in Michigan as follows: Sect. 6363. "Any person entitled to the possession of lands or tenements sold under execution, may, until the expiration of fifteen months from time of such sale, use and enjoy the same as follows, without being deemed guilty of waste. He may, in all cases, use and enjoy the premises sold, in like manner and for the like purposes, in and for which they were used and applied prior to the sale, doing no permanent injury to the freehold.” This allows the working of open mines and the removal of ore therefrom, but not the opening of new mines.

1 See Hollinshead v. Allen, 17 Pa. 275, on p. 11.

2 Followed and approved in Appeal of Providence Trustees, 2 Walk. (Pa.) 37 (1885).

Ward v. Carp River Iron Co., 50, 522 (1883). Same as last case. "The judgment debtor was entitled to continue the working of a mine in a reasonable and prudent manner, having regard to the customary working before the sale, and to dispose of the proceeds. If the mining was improper, excessive, or wasteful, it might at any time have been restrained, and the parties responsible for it held liable for the damages." The plaintiff must show an injury to the freehold.

Capner v. Mining Co., 2 Green's Ch. 467 (1836). New Jersey. Where a farm has been purchased and is occupied for mining purposes, and a part of the purchase-money is secured by mortgage, any necessary and proper use of the property by the mortgagor in carrying on mining operations is not waste.

Vervalen v. Older, 4 Halstead's Ch. 98 (1849). Mortgagor will not be restrained from quarrying on a lot which was conveyed to him by the mortgagee as a "stone quarry lot," the mortgagor's answer denying all those charges in the bill from which it might be inferred that he was improperly impairing the value of the premises and endangering the mortgagee's security.

Trust Co. v. Quarry Co., 31 Eq. 89 (1879). After decree in foreclosure, and execution issued against an insolvent corporation, it quarried stone on the premises, leaving it on the ground. As between mortgagor and mortgagee such stone was subject to the mortgage. See also Leport v. Mining Co., 3 N. J. L. J. 280 (1880), p. 5. Duff's Ap., 21 W. N. C. 491 (1888). The owner of Pennsylvania. land has the right to remove and convert into money the minerals underlying it; but if he has lien creditors, they have the right to object to the commission of waste to the prejudice of their liens; and at their instance the owner will be restrained in the exercise of the rights and powers of an owner.

Righter v. Hamilton, 10 C. C. R. 260 (1891). Opening and operating a new mine or clay pit upon land where none existed at the time a mortgage was created, is waste as against the mortgagee, and will be enjoined at his suit. It makes no difference that the land was purchased from the mortgagee as mineral land.

IV. PROPERTY AND RIGHTS IN THE MINERALS WHERE THERE

ARE JOINT OWNERS OF THE SOIL.

Tenants in common of lands containing minerals have a right to take out the minerals, although to do so tends to destroy and lessen in value the estate. Such mining is not waste at common law. Each tenant in common, however, is limited to his own just share. And by this is not meant that he may mine until he has taken out his share of all the minerals in the land, for that is necessarily unascertainable, but he is entitled only to his share of what is actually taken out. It makes no difference that the mineral is practically inexhaustible.

1 This right is limited, and the proceed- scribed in Minnesota by Gen. Stats. 1894, ings by which it may be exercised are pre- §§ 5830-8.

He is accountable to his co-tenants for their share of all that he mines. He must compensate them for the value in place of their share of the minerals which he mines and takes. This value is to be measured by the value of ore leave or royalty, that is, of the privilege of removing the mineral, which in turn is to be arrived at by expert opinion. This obligation is enforced in the same manner in the case of mines as in the case of the profits of any other real estate owned jointly.1

This right of a tenant in common to dig for minerals, with the appurtenant right to deposit the refuse of mining on the land, is not an incumbrance on the interest of his co-tenants.

One tenant in common cannot create a new and distinct tenancy in common in the land. He consequently cannot convey mineral rights without the concurrence of his co-tenants, nor convey his interest in the land, reserving to himself the mineral rights, though he may grant a license to another to dig to the extent of his interest. Such licensee is accountable to a dissenting co-tenant.

For the same reason an owner of the surface who, with others, is a tenant in common of the minerals, may not convey a portion of the surface and his share of minerals beneath it.

Lands containing minerals are subject to partition like any others, for if they cannot be divided without prejudice to the whole, they may be awarded to one or more of the tenants at a valuation, or they may be sold and the proceeds divided.2 In New Jersey, however, it has been held that when the location, extent, and value of the mineral deposits cannot be ascertained, there can be no partition. The possession by a tenant under a mining lease is not a bar to partition. Pending partition proceedings, however, mining on the property will be enjoined if it is shown that it is causing irreparable injury to the property, or will embarrass the proceedings.

Clowser v. Joplin Mining Co., reported in note to United States. Bly v. United States, 4 Dillon, 469 (1877), C. C. W.

D. Mo.

Krekel, J., in charging the jury, said: "The court approves the

In Pennsylvania this right to an account is defined and a remedy provided by Act of Assembly, 25 June, 1850, P. L. 573, as also are the rights in general of tenants in common of coal or iron ore mines or minerals by Act 22 April, 1856,

P. L. 502. These acts are only applicable when the rights of the complainants are equitable. Coal Co. v. Snowden, 42 Pa.

488.

2 Pennsylvania Act 26 February, 1870, P. L. 256; Act 24 May, 1871, P. L. 1088.