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

owner is not limited to such appliances as existed at the time of the grant; he may freely employ the means of invention; he may erect all adequate modern machinery for mining and draining. What is thus reasonably necessary is a question of fact which a jury may determine from the circumstances of each case.

The bare right to work carries with it the right to use so much of the surface as is reasonably necessary. The mine owner has the right to enter and take and hold possession even as against the owner of the soil, and to use the surface so far as may be necessary to carry on the work of mining, even to the exclusion of the owner of the soil. What is necessary and reasonable may be determined by reference to what is customary, and is a question of fact. The fact that the owner of minerals owns adjoining land through which he could reach his mines does not diminish his right to use the surface above his minerals.

He may not, however, use the land for the purpose of converting the mineral he extracts into other material, as coal into coke, or any process of manufacture or refinement; though it has been said in a Massachusetts case that one having a right to quarry building stone might hew and prepare it on the land. The general rule, however, is that the owner of the minerals may only procure his property in its first marketable state, and for this purpose may make use of the material afforded by the land in which his minerals are found.1

The owner of a mine is, however, limited in his use of the surface and of the material produced by the land, by his necessity. He may not have or use that which is merely convenient, or valuable, or important; he is confined to that which is necessary," indispensable, to the reasonable use and enjoyment of his property in the mineral; but he may have this in a convenient way.

Most frequently the privileges above described as impliedly incident to the right to mine are expressly granted or reserved in the instrument creating a mineral estate; but their character and extent are not altered by this expression, though there may be of course express privileges added which would not otherwise be implied. These rights do not create an estate in the surface, but are easements to do certain acts thereon. Consequently, ejectment will not lie by the owner of the minerals for the surface which is necessary to his mining; it was so held in Illinois. In Pennsyl

1 See, however, Brown v. Torrence, p. 583, post.

vania, however, it has been held that the mine owner may maintain ejectment against an intruder upon the surface, on the ground that the former's possession will be presumed to be necessary against a wrongdoer; and it is an easy inference that he might maintain such an action against any one for such part of the surface as was necessary to carry on his operation. This is opposed to the conclusion in the Illinois case.

Where an express privilege is given, it does not carry with it an obligation to make use of it. The lessee may, if he has them,

make use of other means of getting his mineral.

On the other hand, surface rights and the incidental rights, such as that to use shafts, whether expressed or left to implication, may be used for the purpose only of mining under the particular premises conveyed, and not as a means of removing minerals from other lands.1 This, of course, may, however, be changed by the terms of the contract, as in Genet v. D. & H. Canal Co., 122 N. Y. 505, p. 582, post.

Williams v. Gibson, 84, 228 (1887). The express grant Alabama. of all the minerals in a tract of land is, by necessary implication, the grant also to work them, unless the language of the grant itself repels this construction. This involves the incidental right to penetrate the surface of the soil for the minerals, and to use such means and processes for the purpose of mining and removing them as may be reasonably necessary in the light of modern inventions and of improvements in the arts and sciences, but without injury to the right of support for the surface or superincumbent soil in its natural state. What is thus reasonably necessary is a question of fact to be determined by the jury from the circumstances of each case. The expression, in the grant, of timber and water privileges and of a right of way does not exclude the implication of other privileges necessary for working the mines.

The deed in this case conveyed "all the coal and other minerals in, under, and upon the land," and also all timber and water upon the same necessary for the development, working, and mining of said coal, etc., and the preparation of the same for market, and the removal of the same; and also the right of way and the right to build roads of any description over the same necessary for the convenient transportation of said coal, etc., and the conveying and transporting to and from said lands all materials and implements that may be of use in the mining and removing of said coal," etc. The grantee occupied three acres of surface, and erected five miners' houses, four cabins for the use of employees, an air shaft for ventilating the mines, a powder house, blacksmith's shop, and store. In ejectment by the owner of the surface, the necessity of these was for the jury. Defendant was entitled to

1 See Div. II., this chapter.

produce evidence to show their necessity. The proximity of others might be proved to show that the store was unnecessary.

The grantee had no right to erect coke ovens for converting coal into coke.

Dietz v. Mission Transfer Co., 95, 92 (1892). A deed California. of a part of a tract of land excepted "all oils, petroleum, asphaltum and other kindred mineral substances," and "the right to erect machinery, sink wells, bore, tunnel, dig for, work on and remove the same from the premises," also rights of way, and the right to lay pipes.

The grantee of the balance of the tract and the reserved minerals has not the right to use the land in the first deed for the purpose of pumping or storing oil found on other portions of the tract.

Illinois.

Walker v. Tucker, 70, 527 (1873). By a lease of farming lands and a right to mine for coal, there was also demised the use of certain cars, a barn, blacksmith's shop and tools, and "all other property and fixtures connected with the working of these coal mines."

"It is not pretended that these words are inoperative, and that appellants acquired through them nothing but the right to mine for coal; nor can it be said that this property would have passed to appellants, as an incident to the right to mine for coal, had the language quoted not been used. Unquestionably this property was deemed valuable and important in connection with working the mines, nevertheless it was not indispensable. . . . Even if property of this kind had been indispensable to successfully working the mines, still this particular property could not have been, for it is evident from the description that its place could have been supplied from other sources."

Leavers v. Cleary, 75, 349 (1874). The owners of coal lands entered into a contract with a coal company by which they sold all the coal, coal oil and other minerals contained in the lands to the company, and conveyed to it ten acres of land for about half its value, in which the company agreed to sink a shaft to the depth of two hundred and thirty feet for the purpose of mining coal. If within that depth a vein of coal of sufficient thickness and such quality as to justify mining the same should not be found the land was to be reconveyed, the price thereof refunded, and the expense of sinking the shaft borne by the owner; if coal should be found, the company was to pay the owners ten cents for each ton raised. Coal was found, and the mines worked for seven years, when the company sold out to another, who acquired adjoining lands and proceeded to cut through to these latter, with the intention of abandoning working in the original mine, but still using the shaft described. Held, the intention of the parties to the contract, by which the assignee was bound, was to confine the operations to the land of the grantor, and that the shaft could only be used for taking out coal from those lands. An injunction against the assignee, restraining him from running entries from the shaft to his adjoining land, was granted.

Ewing v. Sandoval Coal & Mining Co., 110, 290 (1884). A deed granting the right to mine and excavate for coal and remove the same from under a tract of land carries with it the right to go upon the land and dig for coal or sink a shaft.

King v. Edwards, 32 Ap. 558 (1889). An express privilege to use the surface to open mines, sink shafts, etc., does not involve an obligation to do so on the premises. The lessee was not compelled to go on the land if he could get the coal without doing so.

Consolidated Coal Co. of St. Louis v. Schmisseur, 34 Ap. 512 (1890). A. sold and conveyed to B. all the coal underlying a large tract of land, and for the purpose of enabling him to sink pits or shafts, and successfully mine and remove the coal, eleven acres, a part of the tract, for thirty-five years, "unless the said coal shall be sooner exhausted, in which event said lease and the right to mine said coal shall cease and expire." Held, that the grantee of the coal might not use the shaft sunk by him upon this ground to bring to the surface coal mined by him under adjoining land, nor could he transport such coal through the land of Ă. Such a use of the land was not contemplated by, nor is it within the terms of, the contract, and it will be enjoined.

Peters v. Philipps, 63, 550 (1884). Plaintiff leased to defendIowa. ant certain lands for the purpose of mining coal, and defendant agreed to have the mine opened and in operation within nine months, and not to allow the mine to stand idle for more than sixty days at one time, and to pay plaintiff a royalty upon the coal taken out, that being the only consideration. Held, plaintiff had a right to demand that defendant prosecute the mining of coal on his land with reasonable diligence, and to an injunction restraining defendant from using the shaft sunk on his land for the purpose of mining coal on an adjoining tract, which defendant had leased, while the mining on the land in question was neglected.

Inhabitants of Worcester v. Green, 2 Pick. 425 Massachusetts. (1824). The proprietors of Worcester in 1733 passed

a vote "that a hundred acres of the poorest land on Millstone Hill be left common for the use of the town for building stones." This was held not to pass the land itself, which was subsequently granted by the proprietors to other persons, and against whose successors in title the inhabitants could not maintain trespass for cutting wood thereon.

Wilde, J. "By a grant of mines the grantee has the power to dig and carry away only; the land itself does not pass, unless it be by feoffment and livery of seisin. . . The grantee may maintain trespass quare clausum fregit for any wrong done him, but he has not a fee in the land."

Green v. Putnam, 8 Cush. 21 (1851). "The grant of the right to the stone carries with it as a necessary incident the right to enter and work the quarry, and to do all that is necessary and usual for the full enjoyment of the right, such as hewing the stone and preparing it for

use.

Erickson v. Michigan Land & Iron Co., 50, 604 (1883). Michigan. The owner of land conveyed it, reserving and saving to himself all ores and minerals, slate, building stone, etc., on or beneath the surface thereof or any part thereof, with the right to enter and explore therefor, to mine, smelt, refine, quarry, dress and remove the same, and for these purposes to construct and maintain buildings, machinery, roads, to sink shafts, remove soil, occupy as much of said