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THE

LAW OF MINES AND MINING

IN THE UNITED STATES.

CHAPTER I.

PROPERTY IN MINERALS WHERE THERE HAS BEEN NO DIVISION BETWEEN THE OWNERSHIP OF THE SURFACE AND

THE MINERAL ESTATE.

I. Property and Rights of the Owner of the Soil in Minerals which are in Place.

II. Property in Minerals which have been severed from the Freehold. III. Property and Rights in the Minerals of Owners of the Soil who have a Limited Estate.

A. Tenants for Life.

B. Tenants for Years.

C. Owners of Equities of Redemption.

IV. Property and Rights in the Minerals where there are Joint Owners of the Soil.

V. Property and Rights in Mineral Oil and Natural Gas.

THE maxim of the common law is cujus est solum ejus est usque ad cælum, and by the common law the owner of the soil has the property in the minerals lying under it, and between planes passing through the centre of the earth and the boundaries of the surface. While in place and unworked, minerals are part of the freehold, and, as such, real estate. When separated from the freehold they become personalty. Minerals in the ground are, however, capable of severance or separation in ownership from the soil, and when so severed are independently and separately inheritable and capable of conveyance. This subject of property in minerals when they are of a different estate from the soil will be discussed in the next chapter. The present chapter treats only of minerals in land in which there has been no division of the estate, whereby the title to the minerals either beneath or on the surface has become vested in some one who is not the owner of the soil.

I. PROPERTY AND RIGHTS OF THE OWNER OF THE SOIL IN

MINERALS WHICH ARE IN PLACE.

Minerals in place, or undisturbed in the position where they have been deposited by the agencies of nature, are a part of the land and belong to the owner of the soil.1

Massachusetts.

Adam v. Briggs Iron Co., 7 Cush. 361 (1851). "Prima facie the owner of freehold lands is entitled to all the minerals and strata of coal, clay, or ore, lime, marble, and the like, not as a separate estate, but as a part of the fee and inheritance, and they will pass by descent or by conveyance without special designation.'

New York.

Lacustrine Fertilizer Co. v. Lake Guano and Fertilizer Co., 82, 476 (1880). The agents of the State, in digging a canal through certain land, dug up and deposited in piles on the banks, certain marl. This was, both after and before the digging, a part of the freehold and the property of the owner in fee. (See p. 6.) Pennsylvania.

Duff's Ap., 21 W. N. C. 491 (1888). The owner of a tract of land has the right to remove and convert into money for his own use the timber growing upon the surface and the minerals underlying it.

Stratton v. Lyon, 53, 641 (1881). General possession Vermont. of the surface of the close in which a clay pit is situated would include the surface of the clay pit; and whoever is in possession of the surface of the soil is in law deemed to be in possession of all that lies underneath the surface.

1 The expression "in place" (in situ) has reference to the condition of the mineral deposit when it forms a part of the solid rocky crust of the earth, and occupies the position therein where it was placed ages ago by the operation of natural agencies. Thus the expression is often used of a ledge, lode, or vein, or any description of ore body; while, on the other hand, fragments which have become detached from these, and which have most commonly rolled or have been carried by other natural agencies some distance from their source, are referred to as "float." Thus the gold in a placer claim, which is usually a gravel deposit, admixed with other detrital material, in an old or present river bed, is not strictly in place, though it is true that it has been deposited in this manner by the forces of

nature; namely, by the decay and erosion or washing down of the rocks containing the gold-bearing veins. The veins or lodes, however, from which these fragmental particles were derived, when found forming a part of the solid rocky mass which underlies all soil, are properly said to be in place. So also the term is properly applied to strata of coal, limestone, iron ore, etc., which belong to the owner of the soil when there has been no severance of the estates. But as is seen from the statement in the text, the owner of the soil is entitled to all valuable mineral substances which have been deposited upon his land through the agency of natural forces alone, although they may be mere float, and their original source may have been outside the limits of his property.

II. PROPERTY IN MINERALS WHICH HAVE BEEN SEVERED

FROM THE FREEHOLD.

Upon severance from the earth, minerals become personal property, and are dealt with by the law as personalty. This severance must be accomplished by artificial means, the object of which is to separate the minerals, and must not be the mere result of natural causes. In the latter case, as we have seen,

the minerals still remain a part of the freehold. So also do they when the severance is the incidental result of excavation for a purpose entirely distinct from the extraction of minerals, when they are allowed to remain mixed with the mass of the soil.

Mineral, when unextracted, being part of the realty, the taking of mineral from the land of another is not larceny but merely a trespass, where the taking and carrying away are so closely connected as to constitute one and the same continuous act. But where after the severance the mineral is left upon the property of its owner, however short a time, before it is carried away, or if another well-defined act intervenes between the severance and the asportation, the latter is not to be considered as a continuation of the trespass, but, if the act is done animo furandi, is larceny.1

Forbes v. Gracey, 94, 762 (1876). Although the United States. title to mineral lands may remain in the United States,

the ores, when dug or detached from the lands under a mining claim, are free from any lien, claim, or title of the United States, and, becoming personal property, the ownership of which is in the man whose. labor, capital, and skill has discovered and developed the mine and extracted the ore or other mineral product, are, as such, subject to State taxation in like manner as other personal property.

People v. Williams, 35, 671 (1868). To sever gold-bearCalifornia. ing quartz rock from the land of another and carry it away is not larceny but merely trespass. An indictment charging defendant with unlawfully and feloniously taking, stealing, and conveying away from the mining claim of B. forty-two pounds of gold-bearing quartz rock, the personal property of B., of the value of $400, will not support a conviction of larceny.

Leport v. Mining Co., 3 N. J. L. J. 280 (1880), Cir. Ct. New Jersey. As between mortgagor and mortgagee ore taken out of

the earth for the purpose of being removed and sold, and remaining on the premises, is personal property.

1 See further on the subject of severance from the freehold, Chap. XIV., Div. IV., as to property in refuse; Chap. II., Divs.

III, and IV., for title in minerals mined under incorporeal rights and licenses; and Chap. XXII., as to trespass and larceny.

New York.

Lacustrine Fertilizer Co. v. Lake Guano and Fertilizer Co., 82, 476 (1880). Marl which has been thrown upon the banks of a canal built by the State, having been dug out of its bed, is a part of the realty without regard to the question whether or not the State acquired title before cutting the canal.

The owner of land cannot, as a general rule, by agreement with another make that which is a part of the realty personal property, as against a subsequent purchaser for value with notice, there having been no actual severance made.

North Carolina.

State v. Burt, 64, 619 (1870). A nugget of gold found upon a loose pile of rocks savors of the realty, and is not a subject of larceny. "Nuggets of gold are lumps of native metal, and are often found separated from the original veins; when this separation is produced by natural causes, there is no severance from the realty, but such nugget will pass under a conveyance like ores and minerals which are embedded in the earth. When ores and minerals are taken out of mines with expense, labor, and skill, to be converted into metals, or used for the purpose of trade and commerce, they become personal property, and are under the protection of the criminal law."

Brown v. Morris, 83, 251 (1880). A contract by which one made bricks on the land of another, the property in the bricks to remain in the owner of the soil until he had been paid for his clay and wood used in their manufacture, is not within the Statute of Frauds. The bricks were personalty, and the contract was concerning personalty.

Watts v. Tibbals, 6, 447 (1847). A. entered into con

Pennsylvania. tract with B., by which the latter was permitted to dig,

raise, and remove stone from A.'s quarry for certain locks in a canal, the quantity to be ascertained by measurement in the locks, and payment to be made as soon as and as often as payments were made to the contractors on the canal. The stone having been quarried, and being at the mouth of the quarry, B. has a property in it; and having been levied upon and sold by the sheriff under an execution against B., the purchaser takes a good title.

Rhoades v. Patrick, 27, 323 (1856). It was set up as a defence to an action on a note given for stone quarried on land occupied by the plaintiff, and sold and delivered by her to the defendant, that the plaintiff did not own the land, and that as the title to the land was in question, the justice of the peace had no jurisdiction of the action. Held, that the stones were personal property when sold, and the title of plaintiff to the land was not in question.

Lyon v. Gormley, 53, 261 (1866). Coal which has been purposely and lawfully severed from the freehold in the construction of a lateral railway under act of May 5, 1832, becomes at once personalty for which the owner of the land may maintain trover. (See this case under Chap. V., Div. IV.)

Green v. Ashland Iron Co., 62, 97 (1869). Plaintiffs under a mining lease raised iron ore which, being unwashed, and having earth clinging to it, was left on the bank to dry. This was the usual course of business in mining iron ore, and the landlord making no claim to retain the earth, replevin lay for the unwashed ore.

Lykens Valley Coal Co. v. Dock, 62, 232 (1869).

Coal as soon as

mined becomes personal property. The lessee of coal mines made an assignment for the benefit of creditors, after which the lessor re-entered. The assignee was entitled to coal already mined lying in the mines, provided it could be removed without injury to the mine; and he could maintain trover therefor.

a mere

Commonwealth v. Steimling, 156, 400 (1893). One who severs coal from the freehold, animo furandi, and after screening and loading it upon a boat on the owner's land carries it away, is guilty of larceny. The act of carrying away may be separated from the act of severance, and is not to be considered as one and the same continuous act,trespass. Noble v. Sylvester, 42, 146 (1869). A stone split out Vermont. and removed from its original connection and position in the ledge, and laid up for the purpose and with the intention by the owner of the farm upon which it was quarried and left, of using it in the construction of a tomb elsewhere, would not pass by a deed of the farm. It would be governed by the same principles that are applicable to timber, fence rails, and the like, that were severed from the freehold. If intended for use on the farm, they pass by the deed in a sale of it; if to be used elsewhere, they do not pass.

As there was nothing about the stone or its position to indicate the use to which it was to be put, this was a proper subject of explanation between the seller and purchaser at the time the deed was executed, and such explanation, though accompanied by a former parol exception of the stone, which was unnecessary, might well be by parol. It was not error to admit proof of the parol exception.

III. PROPERTY AND RIGHTS IN THE MINERALS OF OWNERS OF THE SOIL WHO HAVE A LIMITED ESTATE.

A. Tenants for Life.

B. Tenants for Years.

C. Owners of Equities of Redemption.

Minerals are of such a nature that the enjoyment of the ownership of them consists in their consumption, or more accurately, in taking them away from the land, and to this extent devastating it. It follows that, while the owner of the estate in fee, as owner also of the minerals, may remove them and thus impoverish the land, those who hold an estate less than a fee in the land are subject to certain limitations created for the protection of the owners of the executory or reversionary estates. The general principle is that the produce of mines already opened and previously worked is considered to be temporary profits of the land, while all other minerals are an essential part of the land itself, whose extraction is waste.

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