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CHAPTER XXII.

MINING ON THE LAND OF OTHERS.

TRESPASS.

To excavate and take minerals from the land of another without his consent is a trespass, whether this be done by going upon the land and taking out minerals, by mining over the boundaries thereof on the surface or subterraneously, or by working into the dip of a vein which is within the operation of the apex rule and belongs to another. It is likewise a trespass to enter upon premises in the actual possession of another for the purpose of per- . forming the acts necessary to constitute a location; such an entry cannot be the basis of acquiring title. One who enters the side lines of the lode location of another is prima facie a trepasser, but he may rebut the presumption by showing that he is following the dip of his own vein.

The injured party may have his remedy in an action of trespass against the wrongdoer, or he may bring trover for the minerals taken against whomsoever he finds in possession thereof, or he may waive the tort and bring an action of assumpsit for their value. He may also reclaim the minerals as his property, if he can identify them, in whosesoever hands he finds them (provided they have not become attached to real estate), and for this purpose may maintain an action of replevin. Where, however, the minerals are taken by one in adverse possession, in the exercise of a colorable title, without force or fraud, trespass or trover will not lie.

In addition to these legal remedies, the owner of land or minerals may have an injunction against one who wrongfully takes minerals from his mines. This equitable remedy is the subject of another chapter.2

It is the duty of a mine owner, as of any one else, not to encroach upon his neighbor's land. He is obliged to know the boundaries, and to keep upon his own side of them. When he

1 Actual possession is rendered unnecessary in Colorado by Laws 1893, p. 349, M. A. S. Supp. 3164 a.

2 Chap. XXIII., Div. III., "Injunction." 8 For statutes requiring the leaving of walls and pillars, see ante, p. 632.

mines near to the boundary, if it is indistinct or indefinite, it is his duty to ascertain it by survey. The rule that the owner or lessee of a mine must ascertain its boundaries at his peril has, however, no application between lessor and lessee, where adjoining mines belong to the same person and are leased by them to different lessees. The lessor in such a case had the power to protect himself by covenant, and neglecting to do so, he cannot take advantage of a rule existing ex necessitate rei. Even if by the terms of the lease it became the lessee's duty to mark a theoretical division line, an encroachment beyond it, in an honest attempt to ascertain it, would not constitute a trespass. The lessee would only be liable for negligence or improper mining. Where one adjoining owner points out an incorrect division line to his neighbor, he will be estopped from denying it to be the true line, if at the time he knew it was not such, and his neighbor was ignorant thereof. But if he in good faith pointed out an incorrect line, he is not estopped, but may subsequently, upon the ascertainment of the correct line, treat his neighbor as a trespasser if the latter persist in disregarding the true boundary.

As it is the duty of him who takes minerals to know whence he takes them, it is likewise his duty to know when he has taken them. And if he sets up as a defence to an action that a part were taken before the plaintiff acquired title, he must show what part. Where one is mining near the boundary of his land, he should keep an accurate account of what he takes out. If he fails to do so, evidence as to its value will be most strongly construed against him. If he refuses to allow an inspection by the adjoining owner, who suspects that he is mining over the boundary, equity will order an inspection, and will likewise decree an account pending a dispute as to the exact situation of the boundary.1

Subterranean trespasses are peculiarly susceptible of concealment from the injured owner, and it is generally within the power of the trespasser, by failing to disclose the trespass, to pre

1 See Chap. XXIII., Div. V., " Inspection." In some States this right of survey and examination has been secured and defined by statute. Colorado, M. A. S. 3164; Dakota, Comp. L. 1887, ch. 19, art. 1, sec. 2014; Idaho, Rev. Stats. 1887, sec. 4542; Illinois, Hurd's Rev. Stats. 1895, ch. 94, secs. 2-5, p. 1052; 2 Starr & Curtis,

Ann. Stats. 2739; Michigan, How. Ann. Stat. 4122-6; Missouri, Gen. Stats. 1889, secs. 7040-2; New Mexico, Act Feb. 11, 1887, p. 206; North Dakota, Rev. Codes 1895, sec. 1442; Ohio, Rev. Stats. 1890, secs. 4374-9; Virginia, Code 1887, secs. 2571-2.

vent the other party from asserting his right to redress within the statutory period. Such action on the part of the trespasser is fraudulent, and suspends the running of the statute until such time as the injured party discovers, or reasonably could have discovered, the trespass. Until that time it was not practicable for him to assert his right, and he is not within the mischief which the statute is intended to remedy. A different view was held in Ohio, but the legislature has brought the law of that State into conformity with the view above expressed.1

Where minerals have been mined and removed unintentionally or by mistake from the land or mine of another, the measure of damages in trover is the value of the minerals taken; and in trespass, this value, increased by the injury done to the land by their removal. There are two views as to what is the value of the minerals which is to be used as a measure of damages. The better view is that it is the value in situ; that is, the value at the pit's mouth, less the expense of mining and of carrying it to that place. This view is held in Massachusetts, Missouri, Nevada, Pennsylvania, South Carolina, and Tennessee, and the United States courts of the Eighth Circuit. This valuation may also be expressed as the usual royalty paid for the right of mining.

The other view is, that the value of the minerals to be used in estimating damages is their value when they first became chattels ; that is, immediately on severance from the land, without deduction for the cost of severance. It is the value at the pit's mouth, less only the expense of conveying it to that place and of preparing it for market after the first act of severance. This rule prevails, in the case of innocent trespasses, in California, Illinois (where no allowance is made for separating the mineral from the earth and refuse after it is severed from the land, or for breaking up the large masses), and Maryland. This same rule is laid down in Colorado, Nevada, and the United States Supreme Court as applicable to intentional trespassers. And the New York courts seem to adopt it as a general rule applicable whether the trespass is intentional or not. In Maryland, if the trespass be intentional, wilful, or the result of wilful negligence, the plaintiff is entitled to recover punitive damages in addition, - damages compensatory for the wanton wrong.

That the cost of extraction was more than the value of the

1 Rev. Stats. 1890, sec. 4982.

mineral is no ground for a nonsuit, as, the trespass being proved, the law will presume nominal damages. A contrary view seems to have been taken in a California case.

In an action of trespass, to the value of the minerals is to be added the injury done to the land itself by the taking or the mode of taking. If by reason of the trespass it has been rendered impossible or more difficult to take out the minerals that are left, the plaintiff is entitled to the value in situ of the minerals which he cannot take out, and to the decrease in value of those that have been rendered more difficult of access, and the depreciation in the value of the land. It is of no consequence that the injury did not occur until some time after the act done, if that act was the efficient cause thereof.1 The defendant is then not entitled to deduction for working expenses. In addition to this, if one takes minerals from the land of another animo furandi, he is guilty of larceny, and in many states wilful trespass without such intent is made a misdemeanor.2

It is no defence to an action for mining and carrying away coal from plaintiff's land, that, owing to the small size of plaintiff's tract, the cost of mining to him would have been greater than the value of the coal. If the defendant took the coal, such an inquiry is irrelevant.

An injury analogous to that of mining on the ground of another, is that of boring for oil on the "protection" of an oil lease. The lessee in such case has, besides his remedy by injunction, an action on the case for the tort, in which the measure of damages is the decrease in the value of the leasehold by reason of the defendant's wrongful act.

A

Flagstaff M. Co. v. Tarbet, 98, 463 (1878). United States. locator working subterraneously into the dip of a vein belonging to another who is in possession of his location is a trespasser, and liable to an action for taking ore therefrom.

1 Damages for wilful trespass are fixed by statute in Illinois, Rev. Stats. 1895, ch. 94, secs. 2-5, p. 1052; 2 Starr & Curtis, Ann. Stats. 2739; Missouri, Act March 30, 1893, p. 264; Nevada, Act March 13, 1891, p. 37; Pennsylvania, Act of May 8, 1876, P. L. 142; Utah, 2 Comp. L. 1888, sec. 2792, p. 139.

2 See ante, pp. 5-7; Georgia, Code 1882, secs. 4433-4; Illinois, Rev. Stats. 1895, chap. 94, secs. 2-5, p. 1052; Michigan,

2 How. Ann. Stats. 9173; New Mexico, Act Feb. 28, 1889, sec. 8, p. 247; Act Feb. 26, 1891, p. 133; Ohio, Rev. Stats. 1890, sec. 6881; Oregon, Hill's Ann. Laws 1892, secs. 1793, 1805; Pennsylvania, Act May 8, 1876, P. L. 142; Utah, 2 Comp. L. 1888, sec. 2792, p. 139; Virginia, Code 1887, secs. 2570, 3710; Act March 8, 1894, p. 949; Wisconsin, Ann. Stats. 1889, secs. 4441-2, p. 2245.

Tabor v. Big Pittsburg Con. S. M. Co., 4 McCrary, 299 (1883), C. C. D. Colo. Taking ore from a mine without the consent of the owner is a trespass, and none of the elements of a contract can be found in it, though the mine owner may waive the tort and sue for money had and received. This is not an action on a contract within the meaning of an act giving a writ of attachment in such an action.

Cheesman v. Shreve, 37 Fed. 36 (1888), C. C. D. Colo. Parties who attempt to enter beneath the surface within the side lines of the patented land of another, and to mine and take ore therefrom, are prima facie trespassers. Where such entry is justified under Rev. Stats. 2322, the case is within the jurisdiction of the federal courts. Cheeney v. Nebraska & C. Stone Co., 41 Fed. 740, C. C. D. Colo. (1890). A land owner who in good faith points out to the owner of adjoining land an incorrect division line, is not estopped from denying that such line is the true boundary; in order to estop him, he must have knowledge and the other must be ignorant of the true boundary. If, after the true boundary has been ascertained, the latter continues to work a quarry upon the land of the former which was opened upon the faith of the incorrect boundary, he is a wilful trespasser, from whom the former may recover damages. The measure of these is the value of the stone taken after it was detached from the land and had become personalty.

Benson M. Co. v. Alta M. Co., 145, 428 (1892). In trespass for removing ore from plaintiff's mine, defendant is not entitled to be credited with the cost of mining, where he knew that it belonged to plaintiff. The measure of damages was the value of the ore, less the cost of removing it from the mine and of separating it from the worthless rock.

Montana Co. v. Clark, 42 Fed. 626 (1890), C. C. D. Mont. Defendant, whose claim was in shape a triangle and consequently had no end lines, followed the vein having its apex therein beneath the surface of plaintiff's claim. The vein not having its apex within the latter's claim, he could have no title to it, and could not enjoin defendant from following it.

"The presumption may be that he who enters within the lines of another's mining claim on the surface, or beneath the same, is a trespasser; but where, as in this case, the fact is alleged that the defendants entered upon the Marble Heart claim by following down on its dip, a vein or lode whose top or apex was without the limits of plaintiff's premises, a case is stated that shows that defendants were not trespassers upon plaintiff's premises, that they were following premises that did not belong to plaintiff."

One

Doe v. Waterloo M. Co., 54 Fed. 935 (1893), C. C. D. Cal. who mines within the surface boundaries of another's claim is prima facie a trespasser, and upon him lies the burden of proving his right to do so. This he may do by showing two things: first, such a location. as entitles him to follow on its dip, a vein having its apex within his surface lines; second, that the acts complained of were done on such a vein. It is not sufficient to prove that the apex of the vein upon which he is working is outside of plaintiff's lines. He must show ownership as well.

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