1 an honest claim of title to the land is, in the absence of special damage to the land, liable for the value of the coal in situ before the trespass. This value is the royalty usually paid by lessees for the right of mining. Dougherty v. Chestnut, 2 Pickle, 1 (1887). Where a trespasser, under an honest but mistaken claim of title, has invaded a marble quarry, and removed and sold stone, the measure of damages against him is the value of the marble as it lay at the quarry, cut, dressed, and prepared for market, less the actual, in no event to exceed the usual and reasonable, cost of quarrying and preparing it for market. The rule laid down in Ross v. Scott, supra, could not be applied in this case because of the injustice that would arise from its particular circumstances. The action was by the assignee of a lease against the assignee of the lessor, the consideration of the lease being $20 per annum and five cents per cubic foot for all marble quarried. Where the trespass is malicious or wilful, the measure of damages is the value of the mineral after severance, without compensation for mining or preparation for market. Jackson v. Walton, 28, 43 (1855). The right of the Vermont. owner of personal property to reclaim it, if he can identify it, does not exist when the property has been annexed to another person's freehold, and becomes a part of the realty. The principal defendant quarried, dressed, sold, and delivered to the trustee a quantity of granite, and laid it down for a permanent walk on the trustee's premises. He obtained the stones without right from the quarry of a third person, who, after the walk was laid, claimed them as his property. Held, that the property in the stones was in the trustee after they were laid in the walk, and that the trustee was indebted to the principal defendant and liable as his trustee, at least for the increased value of the stones, which was produced by their being quarried, dressed, and delivered. CHAPTER XXIII. EQUITABLE PRINCIPLES AND REMEDIES IN THEIR APPLIICATION TO MINES. Misrepresentation in the Sale or Purchase of Mines and Mineral Lands. THE principles of equity applicable to representations made by buyer or seller which induce the other party to complete the bargain, are the same in the case of mines as of other real estate. But as minerals are from their nature peculiarly apt to be the subject of fraudulent transactions, it is thought desirable to collect the cases upon the subject, in which actual or alleged mineral lands have been the subject of sale. It is our purpose to state here only the general principle. The reader is referred to the cases abstracted below for the applications of this principle. A rescission of the contract may be made or will be decreed, or an action of deceit may be maintained where the contract was induced by fraudulent and false representations. In order to establish that a representation was of this character, it must appear (1) that it was of a fact, not a mere expression of opinion; (2) that it was false in itself; (3) that it was false to the knowledge of the party making it, or made in reckless disregard of whether it was true or false; (4) that it was of a material fact; (5) that it was made with the intent that it should be acted upon; (6) that it was acted upon to the damage of the person relying on it; (7) that that person so acted in ignorance of its falsity, and reasonably believing it to be true. It should be added to the above that the existence of minerals in land is a material fact, unless it can be shown that it was treated otherwise by the complaining party. There is, however, no obligation on the part of either seller or buyer to speak. If, therefore, no confidential relation exists between them, it is not fraud if the buyer conceals from the seller his knowledge of the existence of mines, of which the latter is ignorant. But if the buyer should make representations for the purpose of misleading the seller, he will be subject to the same rules as the seller. Where, however, there exists between the parties a fiduciary relation, as of partners, or of principal and agent, then there is an obligation to disclose all material facts, and silence or concealment thereof will constitute fraud.1 Hicks v. Jennings, 4 Fed. 855 (1880), C. C. N. D. United States. Ga. In treating for the purchase of a tract of land, the seller represented that it contained a valuable silver mine, and was worth from $15,000 to $20,000, saying that he had had an assay made, and that the land was rich in silver; whereupon the other bought the land for $10,000, and it was then discovered that it had no silver in it, and was worth but $500 or $600. These facts constitute such fraud and want of consideration as to be a good defence to an action to foreclose a mortgage for purchase money, if brought by the mortgagee himself. Statements Southern Development Co. v. Silva, 125, 247 (1888). made by the seller of a speculative property like a mine, at the time of the contract of sale, concerning his opinion or judgment as to the probable amount of mineral which it contains, or as to the character of the bottom of the ore chamber, or as to the value of the mine, if they turn out to be untrue, are not necessarily such fraudulent representations as will authorize a court of equity to rescind the contract of sale. Nor will the fact that there were drill holes in the wall of the mine, which had been filled up, and which if open would have revealed the nature of the deposit of ore, if the seller did not know of them and showed the buyer all the operations in the mine of which he knew, amount to a fraudulent concealment. Lamar, J.: "In order to establish a charge of this character, the complainant must show by clear and decisive proof: - First, that the defendant has made a representation in regard to a material fact; Secondly, that such representation is false; Thirdly, that such representation was not actually believed by the defendant on reasonable grounds to be true; Fourthly, that it was made with intent that it should be acted on; Fifthly, that it was acted on by complainant to his damage; and, Sixthly, that in so acting on it the complainant was ignorant of its falsity, and reasonably believed it to be true." Daniel v. Brown, 33 Fed. 849 (1888), C. C. D. Colo. The plaintiff 1 In Wyoming, salting mines or placing is made a crime by Laws of 1888, ch. 40, upon or in land metal or material representing genuine mineral, with the purpose of cheating or deceiving others for gain, sec. 11. To the same effect are Arizona, Act March 14, 1895, p. 34; and Montana, Crim. Code 1895, secs. 942-4. alleged in his bill that defendants, having discovered rich ore in a mine partly owned by him, fraudulently concealed this fact from his agent, who was also co-owner, and thereby induced the latter to sell plaintiff's interest in the mine for much less than its real value, at the same time purchasing the agent's interests in the same mine for a sum certain, with the promise of additional compensation to the agent, conditioned on the value of the ore they might take out. Held, that if these facts should be proved, the deed would be avoided. Bowman v. Patrick, 36 Fed. 138 (1888), C. C. E. D. Mo. The managing partner in a mine, having actually concealed from his copartner the fact that valuable ore had been found during the latter's absence, and having misled him as to its true condition by letters in which he concealed this fact, a sale by the latter to the former at a grossly inadequate price will be set aside as fraudulent. Where the persons dealing with one another, are one absent, and the other present and in sole charge of the business by arrangement with his partner, the rule is that "in order to sustain such a sale it must be made to appear, first, that the price paid approximates reasonably near to a fair and adequate consideration for the thing purchased; and, second, that all the information in the possession of the purchaser which was necessary to enable the seller to form a sound judgment of the value of what he sold should have been communicated by the former to the latter." Patrick v. Bowman, 149, 411 (1893). The decree in the last case was reversed on the ground that the parties had reached an understanding as to the terms of the sale, and the contract between them was actually completed before the discovery of the ore. Fuller, C. J., and Brewer, J., dissenting. Lehigh Z. & I. Co. v. Bamford, 150, 665 (1893). In an action for royalties the defendants alleged and gave evidence to prove that at the time of making the lease the mine was flooded so that they could not examine it, and plaintiff represented that the mine was valuable, would produce a large amount of zinc and other ores, and would be a profitable investment. "The court said, in substance, that a person who makes representations of material facts, assuming or intending to convey the impression that he has actual knowledge of the existence of such facts, when he is conscious that he has no such knowledge, is as much responsible for the injurious consequences of such representations, to one who believes and acts upon them, as if he had actual knowledge of their falsity; that deceit may also be predicated of a vendor or lessor who makes material untrue representations in respect to his own business or property, for the purpose of their being acted upon, and which are in fact relied upon, by the purchaser or lessee, the truth of which representations the vendor or lessor is bound and must be presumed to know. Touching the alleged representations as to the value of the leased property, the court said that general assertions by a vendor or lessor, that the property offered for sale or to be leased is valuable or very valuable, although such assertions turn out to be untrue, are not misrepresentations amounting to deceit, nor are they to be regarded as statements of existing facts upon which an action for deceit may be based, but rather as the expressions of opinions or beliefs, that as a general rule fraud upon the part of a vendor or lessor, by means of representations of existing material facts, is not established, unless it appears such representations were made for the purpose of influencing the purchaser or lessee, and with knowledge that they were untrue; but where the representations are material, and are made by the vendor or lessor for the purpose of their being acted upon, and they relate to matters which he is bound to know, or is presumed to know, his actual knowledge of them being untrue is not essential. We perceive no objections to these instructions." Mudsill Min. Co. v. Watrous, 61 Fed. 163 (1894), C. C. Ap., 6th Circ. Bill in equity for rescission of sale of real estate. V., one of the defendants, an experienced miner, represented to M., the complainant's agent, also an experienced mining engineer, that the development of the property showed thirty thousand tons of ore in sight, and " that an average assay of the ore taken from different parts of the mine, so far as opened, showed thirty-five ounces of silver to the ton," and V. also stated that his own estimate, based upon his own knowledge of the mine, was that the real average throughout the whole vein was not less than thirty-five ounces per ton." M. examined the mine, and took samples for a test. This test was made in V.'s mill, and in the presence and with the assistance of V., who had an opportunity to interject native silver without being observed. This test showed thirty-four ounces to the ton. After the sale, no ore was found in the mine to produce more than seven ounces. It was also shown that V. had tampered with samples taken by other prospective purchasers for the purpose of making tests, and had stated the results of these tests to M. as inducements to purchase. A rescission of the contract was decreed. 66 Lurton, Circ. J.: "A misrepresentation, in order to constitute fraud, must be an affirmative statement of some material fact, and not a mere expression of opinion. The distinction between the misrepresentation of a fact and the expression of an opinion is peculiarly applicable in the sale of a property so speculative and uncertain as a silver mine." But if the party making false statements as to a matter conjectural in its character, and therefore relating to a matter of opinion, actively intervene to prevent investigation and the discovery of the truth, and such intervention be effective in the concealment of the facts and in the deception of the buyer, a clear case of operative fraud is made out. In every such case immunity will not be extended to false expressions of opinion upon the ground of puffing' or trade talk,' if it appear that the vendor has by his conduct prevented investigation and-induced reliance upon the statements of the seller. In such a case, the subsequent conduct of the seller in actively preventing the buyer from the formation of an independent opinion so connects itself with the original misrepresentation as to become a part and parcel of the false statement, and amounts in law to the false affirmation of a fact. A false representation may, and most often does, consist in language alone, expressed or written; but it may also consist in conduct alone or external acts. . . . The gravamen of the alleged fraud lies in the allegation that when the complainants undertook to examine this property, and form an independent judgment as to its value, through the active |