valuable minerals in said land, which we hereby reserve, together with the right to mine the same." The lots were subsequently conveyed by number, without reference to the minerals underlying the streets. The lot-owners were held to be entitled to the minerals under the streets. The rule is that a conveyance of land bounded upon a public street carries the fee to the middle of the street, unless a contrary intent is clearly expressed. The rule is not changed by the fact that the minerals under the street were excepted from the grant to the county.

IV. IN MINERALS CONTAINED IN LANDS TAKEN BY EMINENT

DOMAIN.

A. Property in the Minerals upon or under the Lands

appropriated.

Where land is taken by a railroad or similar company, the company has only a right of way. It has no property in the minerals below the bed of the road, but it may remove and use the stone necessarily excavated in making the bed of the road.

Whether such a company may go further and excavate stone upon the right of way, to repair the road, is in dispute. The better opinion seems to be that the company has no such right. Its right is a right of way, and the soil and minerals therein still belong to the owner of the land, who may excavate them, provided he leaves sufficient support for the road.1

Smith v. Halloway, 124, 329 (1890). The grant of a Indiana. right of way to a railroad company being the grant only of an easement, the owner of the fee remains the owner of springs, streams, and minerals. He may not interfere with the free use of the right of way, but subject to this use he may make all lawful use of the land.

Kelly v. Donahoe, 2 Metc. 482 (1859). The condemKentucky. nation of land by a turnpike company invests the company only with the right to use the land for the purposes of the road. Such a company having, by its charter, the right to make such excavations, fills, and embankments as the proper construction of the road, according to its prescribed grade and width, renders necessary, has, as incidental to this right, the right to quarry and remove stone and earth from one point to another within the lines of the road, and from the lands of one person to that of another. But it has not the right to the quarries and soil under the road for the purpose of repair

1 In Nevada it is unlawful to mine under or upon land belonging to a rail

road without the company's consent. Gen. Stats. 1885, sec. 887.

ing it. "The proprietor retains the exclusive right to the land, and to all mines, quarries, springs of water, etc., and the right to use the same for every purpose not inconsistent with the public right of way, and with the rights and franchises of the corporation."

Evans v. Haefner, 29, 141 (1859). When land is taken Missouri. by a railroad company under right of eminent domain,

the minerals found above the grade of the road, whose removal is necessary for the construction of the road, belong to the company; those below the bed of the road, whose excavation is not necessary, remain with the owner of the soil.

An

Stokely v. Bridge Co., 5 Watts, 546 (1836). Pennsylvania. incorporated turnpike company has the right to dig stone, clay, and gravel within the limits of the road for improvement and repair, and is not thereby subject to an action by the owner of land.

Lyon v. Gormley, 53, 261 (1866). One who builds an underground railroad through the land of another, under the provisions of the Lateral Railway Act, does not gain a property in minerals displaced by him in the opening of the road. He only gets a right of way which becomes a servitude on the land, but does not divest the owner of his title to the minerals.

B. Mine-owner's Rights, and Restrictions upon him by Reason of the Exercise of the Dominant Right. Damages for the taking.

When land is taken by right of eminent domain, the owner of the minerals owes surface support to the owner of the right of way, and also support of such structure as the company that exercises the right may be entitled to erect, as a railroad or bridge, together with such burden of travel and means of transportation as may at any time be placed thereon.

He may not mine under it so as to endanger the use of it by the road-owner. And if he does so, or threatens to do so, he may be enjoined. This obligation of the owner of the minerals may, however, be altered or released by contract with the roadowner, but not by a contract between the owner of the minerals and the owner of the surface.

The owner of the minerals is entitled to damages for the taking of a right of way over the land. If the ownership of the minerals is distinct from that of the soil, the right to damages is distinct. These are to be measured by the difference in value as mining land if there is not a severance, as a mineral estate if

1 In Nevada he may not mine at all without the company's consent. Gen. Stats. 1885, sec. 887.

there is, before and after the taking. This value is to be arrived at by a consideration of all the circumstances which determine the amount of support required. The specific value of the minerals is not the measure: it is the depreciation in the market value. Therefore the amount of support needed, the probable length of time and the possible danger, are elements that enter into the calculation of damages to the extent that they may affect the market value, but not otherwise; and this value as mining property includes advantages from the internal arrangement of the mine and the appliances therein provided, as well as transportation facilities. But where the mineral is as yet undeveloped, the fact that the land-owner when he opens his mines will be put to additional expense and inconvenience is not a subject of damage.

The uncertainty of the value of mining land does not deprive it of a value. A prospect may have a market value, and expert evidence is not inadmissible because founded on it. If the company exercising the right of eminent domain releases the owner of the minerals from the right of surface support, this fact must be taken into consideration in determining the damages, but the company is not bound by such a release by the owner of the surface to the owner of the minerals.

Mining claims on the public domain are liable to be taken by right of eminent domain like any other property, and in some States (Colorado and Wyoming) there are special statutory provisions for their condemnation. But they are not subject to rights of way under the provisions of U. S. Rev. Stats. 2477, which are applicable only to unappropriated land.

In the condemnation of a "claim" on the public domain, the owner may prove its value for town-lot purposes or as a mining claim, but not as both. The fact that title to land has been acquired under the mining laws of the United States is not evidence that it contains valuable mineral deposits.

United States.

Montana Ry. Co. v. Warren, 137, 348 (1890), affirming s. c. 6 Mont. 275. A railroad took for its roadway a part of a patented mining claim. Adjoining this was another claim, which had been developed and proved to contain a vein of great value. The claim in question had been developed so far as to indicate that possibly, perhaps probably, the same vein extended through its territory, but this could not be affirmed as a fact proved. The testimony of persons who knew the land and its

surroundings, as to their opinion of the value of the land, was admissible to show the damages of the owner thereof. A mining prospect may have a market value. Its uncertainty the railroad cannot take advantage of. Twin Lakes H. G. M. S. v. Colo. M. Ry. Co., 16, 1 Colorado. (1890). In proceedings for condemning a right of way for a railroad over a mining claim it was not error to charge the jury : "That in determining the compensation for the land taken, and the resulting damages, if any, to the remaining land, they may consider not only the uses and purposes to which it is now applied, but also any other reasonable use to which it may be adapted or might be appropriated by men of ordinary prudence and judgment. That if they believe from the evidence that the land contains deposits of gold, they may consider that fact as bearing upon the question of the value of the premises; and that if the presence of gold enhance either the market value or the intrinsic value thereof, due weight must be given to that fact; but that if the value is not thereby increased, the mere fact that gold can be found upon the premises should be disregarded. That the facts that the land is designated as 'placers,' and that title thereto was acquired under the mining laws of the United States, constitute no evidence either that the ground in question contains valuable deposits of gold or other mineral, or that the same are valuable for placer purposes.

Morris v. W. & R. R. T. P. R. Co., 4 Bush, 448

Kentucky. (1868). A shanty put up and occupied for the sole purpose of preventing the condemnation of a stone quarry, and not in good faith for a dwelling-house, will not entitle the owner to the exemption of quarries within two hundred yards of a dwelling-house, as provided in chap. 103, Rev. Stats.

Chicago, Santa Fe, & Cal. Ry. Co. v. McGrew, 104, Missouri. 282 (1891). The damages paid for land condemned for railroad purposes, on which the owner has a coal mine and appliances, should be a compensation for the whole of the property as it remained at the time the appropriation was made, in view of the uses to which the land appropriated was to be applied. The damages should not be confined to the surface and machinery, but should also apply to the internal arrangement of the mine and the appliances therein provided for its economical and successful operation, and to all the external arrangements which add to its value. Previous transportation facilities which are cut off are to be included, and the benefit accruing from the construction of the railroad by way of increased facilities for marketing the product of the mine should be deducted from the damages.

Montana.

Robertson v. Smith, 1, 410 (1871). Rev. Stats. 2477, 66 provides that the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." This only gives a right of way over public land not otherwise appropriated, and not over mining claims located in accordance with the provisions of the act. Such lands cannot be taken for a public highway unless there is a legislative provision for just compensation to the miners.

In section 1 of this act the words "subject to such regulations as may be prescribed by law" is merely a reservation of the right to regulate by legal enactments the manner and conditions under which claims must be worked by miners. And the clause "subject also to the local customs or rules of miners in the several mining districts" relates to the rules, customs, and regulations regarding the location, uses, and forfeiture of mining claims.

66

Mountain Ry. Co. v. Warren, 6, 275 (1887), affirmed in s. c. 137 U. S. 348. In proceedings for the condemnation of a mining claim for railroad purposes, the owner may prove its value as a prospect " and for town-lot purposes, but his recovery is confined to the value for one purpose or the other.

People v. Eldredge, 3 Hun, 541 (1875). The owner

New York. of the gypsum or plaster on certain lands, with the right

to mine and remove the same, has an estate or interest in the lands distinct from that of the owner of the soil, which gives him a right to damages for injuries caused by the laying out of a highway over such lands. The measure of damages is the difference in value of the estate in the minerals without the road and with the road as laid out.

Searle v. R. R., 33, 57 (1859). Where a railroad Pennsylvania. by right of eminent domain takes coal land which has never been mined, the measure of damages is the value of the land taken, and the actual damages arising from the manner in which the road went through the land and affected the improvements, and not the value of the coal under the surface. Nor is it the subject of damages that the owner, when he opens his mines, will, by the existence of the road, be put to expense and inconvenience in working them.

Brown v. Corey, 43, 495 (1862). Proceedings may be had against an owner of a stratum of coal, as contradistinguished from the owner of the surface, where there has been a severance of the estates to obtain an underground right of way under the Lateral Railroad Law.

Lawrence's Ap., 78, 365 (1875). A railroad company constructed their road without legal proceedings to appropriate the land on which it was located, and without objection by the owner. Afterwards proceedings to assess damages were begun, but were compromised and released. Held, company's title was not through these proceedings, but by the original occupation, without objection by the owners.

After the construction of the road, but before the release, the land was leased. Held, that the lessees took it subject to the railroad's right of way, that the latter was entitled to surface support, and the lessees were enjoined from mining so as to endanger it.

Mine Hill & S. H. R. R. Co. v. Lippincott, 86, 468 (1878). The railroad company having built its road over a tract of land, entered into an agreement with the owners, by which the latter released all claims for damages and for the use and occupation of the ground and the right of way, and the company agreed that the tenants might mine the coal in the land as though the railroad had not been constructed thereon; that upon notice that the coal beneath the road was to be mined they would take measures necessary to protect the road, or,