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and to invest proceeds of coal lands so as to produce a permanent revenue, the income thereof to go to the daughter. After making his will he leased his coal interest on royalty. This royalty being part of his residuary estate, held, the daughter was entitled to one half, and the other half must be invested by executors for her use.

Bedford's Ap., 126, 117 (1889). A married woman, her husband joining, conveyed her lands, underlaid with coal, to trustees, "in trust to control, lease, demise, and to mine-let the said lands," and to collect and pay over and distribute the net income of said estate to the wife, with remainder over, etc. In such case the rents or royalties in the trustees' hands derived from a lease of coal in unopened mines executed in pursuance of the powers conferred by the deed were to be regarded as income, payable to the wife for life, and not as the corpus of the estate, to be held by the trustees under the trust.

Woodburn's Est., 138, 606 (1890). Testator, prior to his death, leased his farm for oil purposes, lessee to pay, inter alia, one-eighth of all oil produced. At time of testator's death there were three producing wells and another being drilled. The proceeds of oil run into pipes to the credit of lessor after testator's death, and sold by the executors, are income and go to life tenant. "The right of a life tenant to operate previously opened mines, and work the same even to exhaustion, cannot be questioned. Eley's Ap., 103 Pa. 303, and cases there cited."

Blakley v. Marshall, 174, 425 (1896). Certain land was conveyed to B. and wife to hold to them for and during their life and no longer, and as trustees and in trust for their children, their heirs and assigns forever, subject to the life estate. Oil having been discovered upon neighboring lands, and the working thereof threatening to drain the oil from the land in question, they, as life tenants and trustees, leased the same for the purpose of operating and drilling for petroleum and gas for fifteen years, and so long thereafter as oil and gas may be produced in paying quantities. Held, they were not entitled to the royalties received from the lessee, but only to the interest thereon during their lives, and at the death of the survivor the corpus of the fund arising from the royalties went to the remainder-men.

Marshall v. Mellon, 179, 371 (1897). A life tenant of lands which have not before been operated for oil or gas, has no right to so operate, and cannot give such a right by lease. A life tenant who has leased the land for oil and gas purposes cannot recover rent from the lessee. In this case the lessee had not taken possession under the lease, or operated the land.

Clift v. Clift, 3 Pickle, 17 (1888). "Dower is assignTennessee. able to the widow in mines, quarries, and the like, and she may enjoy the same, either by allotment by metes and bounds, or by a share of the rents and royalties, where the mines or quarries were opened and operated in the life of the husband, whether the same be operated by the husband or by lessees paying rent or royalty on the yield." In this case coal was being mined on royalty under a ninety years' lease made by the husband, and the widow was assigned one-third, the royalties to be held by her from the date of his death during her life, unless the mines should be exhausted sooner, in which

event she was to have for life one-third her husband's interest in the land covered by the leases.

Findlay v. Smith, 6 Mumford, 134 (1818). The owner'

Virginia. of land containing a salt well provided by will as follows: "During the life of my wife it is my intention and request that A. B. and her do carry on my business in partnership, both salt works and merchandising, each equal shares; and that in consideration of the use of my capital they pay out certain legacies." Held, the life tenants might sink a new well, or tap the same vein as that drained by the salt well, and they might work the same to exhaustion. They also had the right to unlimited use of wood for fuel to carry on said works from woodland of testator, which he had in his lifetime used for that purpose.

Crouch v. Puryear, 1 Rand, 258 (1822).

It is not waste for tenant by dower to take coal to any extent from a mine already opened, or to sink new shafts into the same vein of coal. The tenants may even penetrate through a seam already opened and dig into a new seam that lies under the first.

West Virginia.

Williamson v. Jones, 39, 231 (1894). See this casa on p. 29.1 Koen v. Bartlett, 41, 559 (1895). A tenant for life, when not precluded by restraining words, may not only work open mines, but may work them to exhaustion. A tenant for life or his grantees are entitled to the rents and royalties from an oil lease executed by the owner of the land before the beginning of the life estate.

B. Tenants for Years.

A tenant for years, in the absence of provision in the lease showing a contrary intention, may work open mines, but may not open new ones.2

This right may be taken away by express provision in the lease, or by implication from the fact that the land was leased for a purpose other than that of mining. Of course when the privileges given by the lease impliedly carry with them the power to mine, the restriction to open mines is removed, and the tenant may open mines and work them. This is a common form of mining lease, which will be treated under that title below.

It should be observed here that in those States which have homestead laws, the consent of the wife is necessary to a conveyance or lease, and consequently to a mining lease. Franklin Co. v. Coal Co., 43 Kan. 518 (1890). The recitation of the lease in a subsequent conveyance in which the wife joins does not amount to such consent. Ibid.

But a license to remove minerals from

the land, when its enjoyment for the uses of a homestead is not thereby impaired, may be given by the husband without the assent of the wife. If her consent were necessary to give validity to a parol license, it would be presumed, if she had full knowledge of work done or expenses incurred thereunder and made no objection. Hark ness v. Burton, 39 Ia. 101 (1874).

2 Mont. Civ. Code, 1895, § 1271.

Owings v. Emery, 6 Gill, 260 (1847). In 1840, N. O. Maryland. leased to E. & H. a granite quarry known by the name of F. R., with license of quarrying and getting away stone, for the term of six years, and the lessees went into possession. In 1836, B. & C., who had title, leased to D. all their estate and interest, being two thirds part of all that lot within the farm of N. O., called F. R., for the term of five years, which, before the action brought, came to E. & G. by assignment as to one-half. The metes and bounds in both leases were the same. In an action by N. O. for rent due November, 1841, under lease of 1840:

Held (1.) That the lease of 1836 was a grant of the superficies of the soil, and did not pass a right to the quarry, as it was not open at the date of that lease.

(2.) That this case is not one of conflicting leases, the deed of 1836 being a lease of the surface of the soil, that of 1840 a lease or license to quarry stone.

(3.) If a man hath land, in part of which there is a mine open, and he leases the land, the lessee may dig the mine; as the mine is open, and he leases all the land, it shall be intended that his interest is as general as his lease.

(4.) Making of new mines is a waste, unless the lease is of all mines on the land.

(5.) A declaration in a lease, dated 1840, that a quarry had been recently, or a short time ago, possessed and worked by W., cannot be understood as meaning that the quarry was opened for four years previously.

Harlow v. Lake Superior Iron Co., 36, 105 (1877). A Michigan. tenant for years may work open mines unless restricted by the terms of his lease, but he may not open a new mine unless the privilege is explicitly granted. The lease in this case was for the purpose of mining.'

McKee v. Brooks, 20, 526 (1855). A privilege given to Missouri. a lessee of doing all such quarrying, grading, and levelling as may be deemed by him requisite and proper for carrying out his business of boat building, confers upon the lessee the property in the rock so quarried.

Shaw v. Wallace, 25 Law, 455 (1856). As a general

New Jersey. principle, a lease of land carries with it the mines thereon. But this does not apply where there is a severance of mines and surface, and an exception or reservation of the former.

A lessee of the surface, paying rent by raising ore for his lessor from the mines in the leased premises, has no right to open new mines or sink new shafts or slopes, except so far as they are necessary to the proper and successful working of the mines already opened.

Freer v. Stotenburg, 2 Keyes, 467 (1866); s. c. 2 Abb.

New York. Dec. 189, reversing s. c. 36 Barb. 641. Where, by the terms of a lease, the lands are demised for agricultural purposes only, such limitation excludes the right of the lessee to dig stones from a quarry on the premises, though opened at the time of executing the lease.

1 This is consequently not in accordance with the general rule.

Kier v. Peterson, 41, 361 (1861). "If mines are alPennsylvania. ready opened, or if the lease permits their being opened, it is not waste for the tenant to work them even to exhaustion. Nor would it be waste to open new shafts or pits to follow the same vein." Heil v. Strong, 44, 264 (1863). Where land is leased for coalmining purposes, mining coal without paying rent, building houses and driving through faults without the lessor's consent, and appropriating the rents for the purpose, is not waste; and the lessor is not entitled to a writ of estrepement under the act of March 29, 1822, to prevent the same.

Penn. Salt Co. v. Neel, 54, 9 (1866). "Nor is the admissibility of T. N. as a witness for plaintiff questionable. G. had no interest in the subject-matter of the controversy; he had a lease of the surface land under which the coal was found, but he had no right to mine it, there being no opening on the leased premises through which he could do so, and no right, by virtue of his lease, to open a drift or entrance for such purpose.'

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Griffin v. Fellows, 81, 114 (1873). Where there are no open mines or quarries on the premises at the date of the lease, the mining of coal and quarrying of stone by a tenant for years are waste operating as a forfeiture of the term.1

These acts, however, may be authorized by the terms of the lease. They are so authorized by this language in the lease: "To have and to hold the above-granted and demised premises, with every privilege, right, member, and appurtenance whatsoever to the same premises belonging or in any wise appertaining, whether ways, waters, water courses, mines, and minerals of whatever description."

"If there be a lease of land with the mines in it, and there be no open mines, the lessee may dig for mines, otherwise the grant as to the mines will not take effect." 2

C. Owners of Equities of Redemption.

The owner of an equity of redemption who is in possession may mine, subject only to the restriction that the security of the lien creditor, whether his lien be by mortgage or execution, must not be endangered or seriously impaired.

Ward v. Carp River Iron Co., 47, 65 (1881). It is proMichigan. vided by statute in Michigan as follows: Sect. 6363. "Any person entitled to the possession of lands or tenements sold under execution, may, until the expiration of fifteen months from time of such sale, use and enjoy the same as follows, without being deemed guilty of waste. He may, in all cases, use and enjoy the premises sold, in like manner and for the like purposes, in and for which they were used and applied prior to the sale, doing no permanent injury to the freehold." This allows the working of open mines and the removal of ore therefrom, but not the opening of new mines.

1 See Hollinshead v. Allen, 17 Pa. 275, on p. 11.

2 Followed and approved in Appeal · of Providence Trustees, 2 Walk. (Pa.) 37 (1885).

Ward v. Carp River Iron Co., 50, 522 (1883). Same as last case. "The judgment debtor was entitled to continue the working of a mine in a reasonable and prudent manner, having regard to the customary working before the sale, and to dispose of the proceeds. If the mining was improper, excessive, or wasteful, it might at any time have been restrained, and the parties responsible for it held liable for the damages." The plaintiff must show an injury to the freehold.

Capner v. Mining Co., 2 Green's Ch. 467 (1836). New Jersey. Where a farm has been purchased and is occupied for mining purposes, and a part of the purchase-money is secured by mortgage, any necessary and proper use of the property by the mortgagor in carrying on mining operations is not waste.

Vervalen v. Older, 4 Halstead's Ch. 98 (1849). Mortgagor will not be restrained from quarrying on a lot which was conveyed to him by the mortgagee as a "stone quarry lot," the mortgagor's answer denying all those charges in the bill from which it might be inferred that he was improperly impairing the value of the premises and endangering the mortgagee's security.

Trust Co. v. Quarry Co., 31 Eq. 89 (1879). After decree in foreclosure, and execution issued against an insolvent corporation, it quarried stone on the premises, leaving it on the ground. As between. mortgagor and mortgagee such stone was subject to the mortgage. See also Leport v. Mining Co., 3 N. J. L. J. 280 (1880), p. 5. Duff's Ap., 21 W. N. C. 491 (1888). The owner of Pennsylvania. land has the right to remove and convert into money the minerals underlying it; but if he has lien creditors, they have the right to object to the commission of waste to the prejudice of their liens; and at their instance the owner will be restrained in the exercise of the rights and powers of an owner.

Righter v. Hamilton, 10 C. C. R. 260 (1891). Opening and operating a new mine or clay pit upon land where none existed at the time a mortgage was created, is waste as against the mortgagee, and will be enjoined at his suit. It makes no difference that the land was purchased from the mortgagee as mineral land.

IV. PROPERTY AND RIGHTS IN THE MINERALS WHERE THERE

ARE JOINT OWNERS OF THE SOIL.

Tenants in common of lands containing minerals have a right to take out the minerals, although to do so tends to destroy and lessen in value the estate. Such mining is not waste at common law. Each tenant in common, however, is limited to his own just share. And by this is not meant that he may mine until he has taken out his share of all the minerals in the land, for that is necessarily unascertainable, but he is entitled only to his share of what is actually taken out. It makes no difference that the mineral is practically inexhaustible.

1 This right is limited, and the proceed- scribed in Minnesota by Gen. Stats. 1894, ings by which it may be exercised are pre- §§ 5830-8.

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