standing alone, may indicate an intention to transfer ownership of the stone and mineral to the grantee, but against it is opposed the significant fact that no equivalent was to be given for either the one or the other until the ore should be taken, and there was no obligation even to take it. What Hughes was to take, as well as when he was to take, was left all uncertain. In view of this it is hard to believe that the parties contemplated an immediate divestiture of ownership by one, and an acquisition by the other." Strong, J. Gloninger v. Coal Co., 55, 9 (1867). A grant in 1808, in consideration of $6.50 unto F., a blacksmith, his heirs, executors, administrators, and assigns forever, of "the free right to dig coal at the coal bed under the foot of the mountain on my lot, with the privilege freely to carry the coal from the said lot, as also free ingress and regress to and from said coal bed through my lands at all times hereafter," creates an incorporeal hereditament enjoyable in common with the grantor, for which or a part of which ejectment will not lie. "The present case is not an exclusive right in the grantee to dig all the coal, and to any extent, and to exclude the grantor from mining also; and is, therefore, not ruled by Caldwell v. Fullon.1 Such a right is not exclusive in the grantee, but to be enjoyed in common with the grantor, his heirs and assigns, and the grant is therefore an incorporeal hereditament. The right in the case before us is not exclusive in form, words, or spirit, and is simply a privilege to dig coal at a specified coal bed and carry away the coals so taken, and not interfering in any way with the right of the owner of the land to mine ad libitum." Grove v. Hodges, 55, 504 (1867). An agreement by which one man sells to another the right to mine, take, and carry away the iron ore on and in the land of the former, in consideration of twenty-five cents a ton, is an executed conveyance of an incorporeal interest, and not a mere executory agreement to sell. A subsequent grantee of all the iron ores in the land took subject to this interest. Johnston v. Cowan, 59, 275 (1868). Grant of the right and privilege to dig, mine, take, and carry away fire clay from a certain tract of land for twenty years; the grantees to pay twenty-five cents per ton, and in the event of their not taking out 1,250 tons in six months, then to pay $150 every six months. This is not a mere license, but a grant of a right or privilege which the parties were bound to pay for whether they enjoyed it or not. It was not a good defence to an action for the contract price that the defendant had never entered upon the land and had never mined any clay thereon. Carnahan v. Brown, 60, 23 (1868). A testator, after dividing his land among his sons, further devised to them" each an equal privilege forever of the coal bank now open, and the ground on the ridge adjacent so far as may be necessary for digging and taking coal." This coal bank was on the land allotted to one of the sons. The will passed an incorporeal hereditament and an easement in the adjacent land necessary to its enjoyment. Ejectment will not lie for its interruption. Semble, that the privilege extended to every part of the land con 1 See p. 44. taining coal which might be mined through the opening designated in the will. Coleman's Ap., 62, 252 (1869).1 A man cannot have an incorporeal easement to dig ore in his own fee. "Nor, as it appears to me, can it be said that these ore banks were in any sense appurtenant to the other lands comprised in the partition of 1787. The original title to them by warrants from the proprietaries on May 8, 1732, and Dec. 2, 1737, was separate and distinct from these lands. A thing corporeal cannot properly be appendant to a thing corporeal. Co. Litt. 121 b. The owner of them and the adjacent tracts might perhaps have limited the use of the ore to the supply of the furnaces erected or to be erected on the other lands, then held by them in common. There is not a word, however, in the agreement of 1787 which intimates such an intention." Grubb v. Grubb, 74, 25 (1873). Clement and Edward owned in common "The Mount Hope Estate," which consisted of several tracts of land, and one-sixth of "three certain mine hills" known as Cornwall Ore Banks. Clement conveyed to Alfred his half of "The Mount Hope Estate," designating the particular tracts, "together also with the right, title, and interest so far as the said Alfred Bates Grubb's right under this conveyance in the said Mount Hope Furnace is interested and concerned, of them the said Clement B. Grubb and Mary Ann Grubb, his wife, to raise, dig up, take, and carry away for the use and advantage of said furnace, iron ore out of and from three certain mine hills in Lebanon Township, Lebanon County, bounded on all sides by lands of Thomas B. Coleman, deceased, and known and called by the name of the Cornwall Ore Banks, and held as a tenancy in common with the heirs of Thomas B. Coleman and James Coleman, deceased, with ingress, egress, and regress to and from the said mine hills and every part thereof, for the purpose only of procuring ore from the said Mount Hope Furnace, but for so long and for such time only as the said furnace can be carried on and kept in operation by means of charcoal." Held, that this conveyance granted to Alfred a limited privilege to take ore, and did not convey the corporeal estate in the mine hills that remained in Clement. "Without discussing at present the distinction between an easement and a right of profit à prendre, we may say that the mining right of Alfred B. Grubb is clearly a privilege annexed by the deed of Clement B. Grubb to the interest he conveyed in the Mount Hope estate, and will pass with it as appurtenant thereto. That it is not a right of profit à prendre in gross, is manifested by the terms of the grant, for it is a right only to take ore for the use and advantage of the Mount Hope Furnace, and the right of ingress, egress, and regress is confined to the purpose of procuring ore for the furnace, and that so long as the furnace shall be operated by means of charcoal. That this is not a grant of the minerals themselves in place, is equally clear from the language of the grant, and is proved also by the cases of Funk v. Haldeman, 3 P. F. Smith, 229; Huff v. McCauley, id. 206; Johnstown Iron Co. v. Cambria Iron Co., 8 Casey, 241; Grubb v. Guilford, 4 Watts, 223; Brandt v. McKeever, 1 See p. 25. 6 Harris, 70; Caldwell v. Fulton, 7 Casey, 475; Washb. Easem., ed. 1871, p. 10. Not being either a profit à prendre in gross, or an estate in the ore itself, it must rank in that class of easements wherein a right granted out of other land is expressly annexed to land. "A right of profit à prendre, which may be held apart from the possession of land, differs therein from an easement, which requires a dominant tenement for its existence." Grubb's Ap., 90, 228 (1879). Alfred B. Grubb having acquired title to the whole of Mount Hope Furnace, claimed the right to take from the Cornwall banks, under his deed from Clement, a full supply of ore for the furnace. Clement contending that he was only entitled to a half supply, brought a bill in equity. The court dismissed the bill for want of jurisdiction. "No question of waste is raised by this record. Waste is spoil or destruction done or allowed to be done to houses, woods, lands, or other corporeal hereditaments by the tenant thereof, to the prejudice of the heir, or of those in reversion or remainder. By the act of 27th of March, 1833, Pamph. L. 99, the provisions of the second section of the act of 2d April, 1803, restraining waste, are extended to quarrying and mining. But it has never been held that a person who is not a tenant in possession, but possessing a right to dig ores, is guilty of committing waste when he takes out more ore than his contract or his rights call for." Grubb v. Grubb, 101, 11 (1882). C. B. Grubb brought assumpsit for the one-half of the ore taken by A. B. Grubb to supply the Mount Hope Furnace. Held, that the defendant was entitled to the full supply. The deed should be construed most strongly against the grantor. This construction is also upheld by the circumstances surrounding this conveyance in 1845, when all those who had interests in the banks took all the ore necessary for their furnaces without accounting, the banks being practically inexhaustible for the purpose of supplying as then worked. Jennings v. Beale, 158, 283 (1893). Defendant conveyed to plaintiff, his heirs and assigns, in trust for a firm, for a consideration of $40,000: 1st, Five described lots of ground; 2d, All the gas from certain wells; and, 3d, "Also the perpetual right to mine, dig, and carry away coal in and from all the veins of coal in and under the following-described tracts of land," plaintiff to pay a royalty on all coal mined. This did not convey the coal absolutely, or exclude the grantor from mining. That it was not intended that the grant should be exclusive is shown by the omission to specify "all" the coal, and the fact that no time is fixed for payment of royalty, and there is no covenant or condition requiring the grantees to mine. Algonquin Coal Co. v. Northern C. & I. Co., 162, 114 (1894). W., the owner of a tract of land, conveyed the same in 1801 to C. by a deed in which it was provided: "The said Thomas reserves for himself, his heirs and assigns, a free toleration of getting coal for their own use without hindrance or denial." The grantees of W. were held not to own the coal, but only to have a privilege to take coal for their own use. The title remained in those who succeeded to C.'s title, subject to this privilege, and they had a concurrent right to take the coal. South Carolina. McBee v. Loftis, 1 Strob. Eq. 90 (45). An instrument in writing which does not, and was not intended to, grant the soil in fee, but the use only, for the purpose of mining, is not a deed for the conveyance of the land, within the act of 1795, requiring two witnesses. The grantee of a right of mining who by the terms of the deed is bound to surrender the right at the end of a year, if he finds it unprofitable, and who at the end of the year indicates no intention to do so, cannot have his right limited to one year. Where, by the terms of a grant of the right of mining, the grantee is entitled to work free of expense, etc., and is in no other respect restricted, he may conduct the work in any manner he thinks proper, either by himself, his servants, agents, or assigns. The right of mining can only be acquired by deed, and is not forfeited by non-user. Reynolds v. Cook, 83, 817 (1887). A right to quarry and Virginia. remove all the limestone in a tract of land is an incorporeal hereditament, an interest or right arising out of land, and as such may, under Code 1873, chapter 131, section 5, constitute the foundation of an action of ejectment. Lewis, P.: "It was clearly an incorporeal hereditament, first, because it was not a mere license, as was the case of Barksdale v. Hairston, 81 Va. 764, and in other similar cases there cited; and, secondly, because it was not a grant of an exclusive right: Johnstown I. Co. v. Cambria I. Co., 32 Pa. 241; Clement v. Youngman, 40 Pa. 341; Marble Co. v. Ripley, 10 Wall. 339. Such a right has been compared to a grant of common sans nombre, and is therefore an interest in or a right arising out of land, and as such constitutes under our statute a foundation for an action of ejectment. " 1 Gillett v. Treganza, 6, 343 (1858). By written agreeWisconsin. ment G. bargained and sold to T. "the right of digging for lead ore on a certain range, it being a sheet dipping south and running east and west, for the sum of five hundred dollars, granting the said T. privilege of following his sheet or crevice in whatever direction it may run," etc. And T. gave to G. "all my right and interest in the said ground, save the privilege of following my crevice a sufficient thickness for the purpose of digging and making said crevice." "The plain object and intent of this agreement appears to be not to create a property or estate in the land, not to sell the mines or minerals unsevered therein, but to sell a right, liberty, license, and privilege to work, mine, and search for lead ore upon the range therein described. T. consequently had no property in the minerals until he had found and severed them. He could not maintain replevin in the cepit for ore dug by another." 1 See Lee v. Bumgardner, p. 50. IV. LICENSES TO MINE. A grant of a privilege of mining which, if in writing, would constitute an incorporeal hereditament, if made by parol constitutes a license, a mere personal privilege which is unassignable, is concurrent with the right of the licensor to mine, is revocable at the will of the licensor, and vests no title in the minerals until they are severed by the acts of the licensee. It will be noticed that incorporeal rights to mine are sometimes spoken of as liberties and licenses, as in Grubb v. Bayard. The term seems to be used (in Bainbridge, for instance) to cover all rights to mine which create no estate in the minerals in place, just as the term "mining lease" has a generic sense in which it includes not only true leases, but all estates and rights in or to minerals. The broad distinction of the classes within the genus license is this: When a right to minerals which is not exclusive of the grantor is created by deed, it is an incorporeal hereditament; when by parol, it is a true license. The one creates an estate in lands, the other a personal privilege. The confusion arising between the broad and narrow uses of the word "license" has occasioned some anomalous decisions; and in many States, indeed, it may be doubted whether any distinction remains between an incorporeal hereditament and a license to mine. There is, however, the distinction in principle, which must be insisted on if we are to preserve clearness in the treatment of the cases. A license, however, may also be created by an instrument in writing whose terms show an intention simply to confer a personal privilege to take minerals as land. In Missouri, indeed, it is held that a license to mine being something more than a mere personal privilege to do an act upon land, passes an interest in lands within the Statute of Frauds. It follows that such an interest can only be created or conveyed by a written instrument, and an attempt to do so by parol amounts only to an estate at will. Practically this latter does not at all differ from a true license.1 A license to take minerals has all the properties of any other 1 The subject now is regulated in Missouri by statute. Gen. Stats. 1889, secs. 7034-7. |