his duty, to explore and mark a theoretical line upon his own premises, the tenant cannot be treated as a trespasser, if in an honest attempt to ascertain the line he should chance to pass over it. In such a case the lessor can only recover damages for improper mining or criminal negligence. He might, however, if the coal so mined was on a tract where a larger royalty was paid, recover the increased royalty. Oak Ridge Co. v. Rogers, 108, 147 (1884). Under the act of May 8, 1876, the measure of damages is based upon the fair value of the coal in place. If the evidence fails to give its value in place, then the measure should be based upon what it was worth at the pit's mouth or in a distant market, deducting therefrom what it would cost to put or take it there. National Transit Co. v. Weston, 121, 485 (1888). The true owner of land may not sustain trover for the value of oil, or other products of realty, produced and removed from the premises in the exercise of a colorable title, without fraud or force, by one in adverse possession. The act of May 15, 1871, P. L. 268, authorizing replevin for chattels severed from realty, though the title be in dispute, is limited to that form of action, and the only other proper remedy remaining to the owner is ejectment and proceedings for mesne profits. Phillips v. Coast, 130, 572 (1890). If a person while in possession of oil land, believing he has a valid title thereto, in good faith drills a well thereon, he has a right, if the land be afterwards recovered from him in ejectment, to retain out of the proceeds of the oil produced during his occupancy a sum sufficient to reimburse him for the cost of drilling the well. He is entitled to this sum out of funds in the hands of a receiver appointed to take charge of the well pending the ejectment. Palmer v. Truby, 136, 556 (1890). The lessee of land, demised for the production of petroleum alone, who obtains gas but not oil, and is thereupon dispossessed by ejectment brought upon an alleged forfeiture, has no equity to be reimbursed the expenses of his operations out of the proceeds of the gas obtained. Duffield v. Rosenzweig, 144, 520 (1891), 150, 543 (1892). Plaintiff had a lease of land for oil-mining purposes, with the exclusive right of boring for oil thereon, and with a restriction to certain sites in his operations. He was held to have the protection of the entire tract, and could maintain an action on the case against one who bored for oil on the land not included in the designated sites. The measure of damages was the difference in value of the leasehold before and after the injury was committed. Commonwealth v. Steimling, 156, 400 (1893). One who severs coal from the freehold animo furandi and carries it away, is guilty of larceny. The act of carrying away may be separated from the severance, and is not to be considered as one and the same continuous act, a mere trespass. Lewey v. Fricke Coke Co., 166, 536 (1895). Plaintiff owned a lot under which lay coal, which he had made no attempt to mine. Defendant owned land adjoining, and in its mining operations in 1884 mined across a part of plaintiff's lot. This was not discovered by plaintiff until 1891. He then brought suit, and it was held that he was not barred by the Statute of Limitations. the discovery of the trespass. The statute ran from Williams, J.: "The interior of the earth is invisible and inaccessible to the owner of the surface unless he is engaged in mining operations on his own land; and then he can reach no part of his own coal stratum except that which he is actually removing. If an adjoining landowner reaches the plaintiff's coal through subterranean ways that reach the surface on his own land and are under his actual control, the vigilance the law requires of the plaintiff upon the surface is powerless to detect the invasion by his neighbor of the coal one hundred feet under the surface." Defendant "was bound to know its own lines and keep within them. If by mistake or for any other reason it did invade the mineral estate of another and remove and appropriate the coal therefrom, good conscience required that it should disclose the fact and pay for the coal taken. Its failure to do this is in its effects a fraud upon the injured owner, and if he has no knowledge of the trespass and no means of knowledge, such a fraud, whether it be called constructive or actual, should protect him froin the running of the statute." Giffin v. South West Pa. Pipe Lines, 172, 580 (1896). Trover will not lie for chattels severed from the soil, while it, at the moment of severance, was in the adverse possession of another. A part owner of oil land cannot maintain assumpsit against a pipe line company to recover the value of oil delivered to the company by a person in possession and holding adversely to the plaintiff. State v. Guano Co., 22, 50 (1884). The fact that South Carolina. the State has granted the right to one corporation to dig and mine for phosphates in a navigable stream, does not prevent the State from bringing an action to assert its title to the soil against another corporation which has mined such phosphates. The value of the phosphates taken by the defendant corporation from the soil of the State should be estimated at the value of the phosphates, less the amount defendant has added to their value by their removal and preparation for market, defendant having acted under an honest but mistaken belief in its right to these phosphates. Coal Creek Mining & Mfg. Co. v. Moses, 15 Lea, 300 Tennessee. (1885). It is the duty of a person mining on his own land near the boundary line to make a survey to prevent encroachment on the adjoining land, and to keep accurate accounts of the coal mined near the line; and if he fails to do so, the evidence as to the quantity of coal taken will be construed most strongly against him, and the least evidence of bad faith on his part will cause every intendment to be made in favor of the injured party. But if the trespass was unintentional and inadvertent, the measure of damages is the value of the coal in situ before the trespass, and the incidental injury, if any, to the land by the taking or mode of taking. This rule prevails both at law and in equity. The court below had stated the measure of damages to be the value of the coal at the pit's mouth, less the cost of transporting it there from the place where dug. was reversed. This Ross v. Scott, 15 Lea, 479 (1885). One who has mined coal under 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 be-、 tween 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. Southern Development Co. v. Silva, 125, 247 (1888). Statements 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 prob able 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 upon or in land metal or material representing genuine mineral, with the purpose of cheating or deceiving others for gain, is made a crime by Laws of 1888, ch. 40, sec. 11. To the same effect are Arizona, Act March 14, 1895, p. 34; and Montana, Crim. Code 1895, secs. 942-4. |