to work lots for six days. This was binding on lot holders, and such a failure was a bar to an action for unlawful detainer.

By the terms of the statute the plaintiffs must be considered to have accepted the conditions contained in the statement or rules.

Robinson v. Troup M. Co., 55 Ap. 662 (1893). When the landlord of mining lots fails to post the statement required by Rev. Stat. 1889, sec. 7034, the tenant's lease will under section 7035 expire at the close of three years, and a sub-tenant who during the three years bought the landlord's title takes at the expiration of that time, free from the claim of his immediate lessor.

Springfield Foundry & Mach. Co. v. Cole, 130, 1 (1895). Persons mining for zinc or lead ore on the land of another, subject to the printed statement of the terms, conditions, and requirements imposed by the owner, as provided for in Rev. Stat. 1889, sec. 7034, have no estate or interest in the land or in any of the ore until it is mined. They are licensees.

Cahoon v. Bayaud, 123, 298 (1890). By an agreeNew York. ment between plaintiff and defendant's grantor, it was

provided that the former should have the right to enter upon the premises . . . with men, teams, and tools for the purpose of prospecting and examining for mines and minerals, and to dig, carry away, and test such portions, etc., as he may think proper, . . . and if he, after making such examination and test, etc., shall be of opinion that they are worth working, he shall then have the right to go on and dig, carry away, and cause to be worked such of the substances there found." The expenses were to be borne by plaintiff, and the agreement was to "bind the heirs and assigns of the respective parties." This instrument conveyed no title to the land to the plaintiff. It gave him "a license or authority to enter upon the lands for the specific purpose of prospecting for minerals, and of extracting and testing the ores," and if he thought them worth working, he had an option which he could enforce; but in order to acquire an interest in the land it was necessary for him to declare his election to exercise his option, when he would be in a position to compel a conveyance. In the mean time he only had a license which was a personal privilege and not transmissible.

For twenty years plaintiff visited the land yearly, and did some prospecting, but nothing more. At the end of the ten years the land was sold to defendant. Held, that the licensee was bound to define his position towards the owner of the land as soon as it was fairly possible. "Fair dealing required of him to take the requisite steps, under his agreement, within a reasonable time. No time being specified in the instrument, the law affixed to it the obligation of proceeding within what would be deemed a reasonable time." The licensee having failed to do so, the land-owner had a right to revoke the license, and the conveyance of the land was such a revocation.

Huff v. McCauley, 53, 206 (1866). A verbal agreePennsylvania. ment, by which the owner of land, under which there was coal, allowed his neighbor to take coal out through his own land for his own use, if the former might use the latter's drift and scaffold to take out coal for himself, is either a license, an easement, an inter

est in the land, or an incorporeal right arising out of it. If it was any of the last three, it was within the Statute of Frauds, and consequently a parol agreement would not be effective in transferring them. If it was a license, then it was revocable unless the licensee had expended money under it, in which case he must be put in statu quo upon revocation.

Neumoyer v. Andreas, 57, 446 (1868). A. leased a tract of land to N. for ten years for the purpose of mining, etc. Afterwards, during the lease, A. and N. entered into a contract by which it was agreed that if N. would sink a well, plank it, and put in a pump and engine, he should be entitled to dig all the ore on A.'s land, paying twenty-five cents a ton therefor.

N.'s right, under this contract, was a license carrying with it only the right to the qualified possession, such as would enable him to dig and take away the ore. It was no defence to proceedings by A. to regain possession at the termination of the lease.

"It falls not within the principle of Caldwell v. Fulton, 7 Casey, 475, but rather within the decision The Johnstown Iron Co. v. Cambria Iron Co., 8 Casey, 241, and Clement & Masser v. Youngman & Walter, 4 Wright, 341. It resembles Caldwell v. Fulton in this, that the right to dig ore extends to all the ore upon the land, but it differs from it in the fact that no consideration passed to support a present conveyance of all the ore. That was a formal conveyance for a present consideration; this is a mere contract for the ore at twenty-five cents for each ton which might be dug. The well, pump, and engine were but the means to be used in reaching and lifting the ore. If the title to the ore itself passed, then the plaintiff must be deemed to have parted with it forever, without compensation, until it should suit the defendant to dig and pay for it. Having no express covenant compelling the defendant to dig a certain quantity or to mine it within a given time, the plaintiff has no adequate means of enforcing compensation, and no measure to fix its amount."

Youghiogheny R. Coal Co. v. Pierce, 153, 74 (1893). Testator by his will provided as follows: "To my second son, John, I give and bequeath the farm or plantation he now occupies, to be enjoyed by him, his heirs and assigns forever, with free privilege of taking what coal he wants for his own use or plantation off the home plantation." When the will was made, there was an open mine on the home plantation, but there was none on the farm occupied by John. Held, that the privilege of taking coal from the home plantation was personal to John, and did not pass to his successors in title to the land devised to him. Barksdale v. Hairston, 81, 764 (1886). A provision in Virginia. an agreement that a partnership should have "the exclusive use and privilege of digging, hauling off, and working any ore now found, or which may hereafter be found, anywhere on said land," confers a mere license, and creates no estate or easement in the land. If no acts are done under this license, it is revocable, and a dissolution of the partnership works a revocation.

An agreement by which, the

Hodgson v. Perkins, 84, 706 (1888). owner of a farm bargained and sold the privilege of digging and working for gold thereon, for a share of the product, reserving the right to

cultivate and use the land, provided he did not molest or interfere with the lessees in searching or working for gold or other metals, the lessees to have and hold the land so long as they may deem it worthy of searching and working for gold or other metals, creates a personal privilege which is not assignable and is terminated by abandonment. Tipping v. Robbins, 64, 546 (1885). Rev. Stats. of Wis., Wisconsin. sec. 1647, provides that "no license or lease, verbal or written, made to a miner shall be revocable by the maker thereof after a valuable discovery or prospect has been struck, unless the miner shall forfeit his right by negligence such as establishes a forfeiture according to mining usages.' Actual entry is not necessary in order to make a license irrevocable under this statute. If licensee working on an adjoining tract strikes a mineral-bearing crevice which is absolutely certain to run into the land which is the subject of the license, the license becomes thereby irrevocable, and the licensee may work the mineral. A license by one tenant in common to prosecute mining on the land would not bind a dissenting tenant.

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Tipping v. Robbins, 71, 507 (1888). The above-quoted statute has no application where the license has been given by one tenant in common without consent of his co-tenant. Licensee having mined without this consent is accountable to the co-tenants for the value of their share of the mineral taken out, less the expense of digging it out and removing it from the mine. No allowance was made, however, for mining the level into plaintiff's ground.

Blindert v. Kreiser, 81, 174 (1892). Rev. Stats., sec. 1647, provides that a parol license to mine on lands shall not be revocable after a valuable discovery or prospect has been struck." Where, however, upon a joint discovery of ore by the owner of land, his son, and another, an oral arrangement is made, and upon prospecting thereunder ore is not found in paying quantities, the interest of the last is only a right to mine under a revocable license. He has no interest in real estate, and having sold out his interest to another who subsequently discovers ore in paying quantity, the interest of the latter is not subject to the lien of a judgment against the former.


Oil and gas, from their peculiar nature, which has been fully explained above (see p. 30), are incapable of being the subject of corporeal real interests. Oil and gas leases must, therefore, take upon themselves one of three forms:

A. A lease of lands with the privilege of digging and boring for oil or gas. B. An incorporeal right to dig and bore, or a license to do so with an interest. C. A simple license or personal privilege to dig, bore, and appropriate the oil and gas.1

1 In New York the nature of property ch. 372, p. 1. See Bank v. Dow, 41 Hun, in oil under oil leases is governed by 13; Broman v. Young, 35 Hun, 173. statute. Act May 10, 1883; Laws 1883,

A. Lease of Lands with the Privilege of digging and boring for Oil or Gas.

A lease of lands with the privilege of taking oil and gas, or for the purpose of doing so, is, of course, a corporeal interest in the lands. It is like any other lease of lands, a tenancy for years, the mining privilege being exercised under express powers and covenants conferring them.

The tenancy is subject to the ordinary law of landlord and tenant; the mining privileges are governed by the law of contracts, and the rules applicable to mining rights generally.

Such a lease gives to the lessee the exclusive possession of the land itself, and an exclusive right to take the oil or gas. It results from this, as will be seen, that a lease of lands for the purpose of boring for oil or gas, which contains a provision restricting the possession of the land, is only a grant of a right to take oil, and belongs to the class of leases discussed in the next section.

The taking of minerals is a lawful act, and is not, as in the case of an ordinary lease of the land, waste. The lessee has the same right to these minerals as the lessee of land for the purpose of cultivation has to the crops produced from the land.

As was said in Wettengel v. Gormley, 160 Pa. 559, such a lease partakes of the character of a lease for general tillage rather than that of a lease for mining or quarrying the solid minerals, and a division of the land subject to such a lease does not vest the right to the rental or royalty in the owner of the part upon which the well is sunk, but that right is joint in the owners of all the parts, the oil being the produce of all, though taken out through one only.

Where such a lease is made of land which is not known to contain oil or gas, it may be merely a lease for the purpose of prospecting, or in some cases merely an option, and may be terminated by abandonment.

Chicago & Allegheny Oil & Mining Co. v. U. S. Pennsylvania. Petroleum Co., 57, 83 (1868). An agreement to lease land for a term of years with the exclusive right to bore for and collect oil, giving one-fourth to the lessor, passes a corporeal interest. It is a lease of the corporeal tenement, with the added exclusive rights, etc. The taking by the lessee of his share of the oil is not waste, but a lawful act, unless the lease be forfeited by its own terms.

Stoughton's Ap., 88, 198 (1878). See p. 32.

Bronson v. Lane, 91, 153 (1879). By four separate deeds B. granted and sold to C., D., E., and F. fractional parts "of the oil and mineral right, saving and excepting lead ore, of, in, and to" certain described tracts of land, "together with the right to enter upon said premises, to dig or bore for oil or other minerals, saving and excepting lead ore; free right of ingress and egress; the right to erect such and so many derricks, engine-houses, and other structures as may be needful in the legitimate business of prospecting for, producing, and transporting oil or other minerals; the right to use so much of the timber growing on the said land as may be needful for fuel in operating the same, and such timber as may be required for the erection of derricks and engine-houses on the same. The right hereby conveyed, and the privileges therein annexed, to continue for a term of ninety-nine years from the date hereof, and then to revert to the grantor herein, his heirs or assigns." Rights of entry for purposes of tillage and of removing the timber are also reserved. "Under these deeds the grantees were tenants in common. They were not mere grants of an incorporeal right to dig and take in common with the grantor to which the principle of Lord Mountjoy's case applies. . . . Very plainly there is an express grant of exclusive occupation of so much of the land as was necessary for the enjoyment of the thing granted.

"It has been objected that upon so broad a construction the grantees might sink a well on every acre of the land, and thus effectually deprive the grantor of the entire surface. This might be so, but practically it was in the highest degree improbable. The grantor evidently had no such fear, and if he had, should have provided against it by limiting the number of wells or the surface space to be appropriated. The grantees had the right to divide the land into small tracts, leasing the same, with privilege to the lessees to enter for the purpose of taking oil.

Kitchen v. Smith, 101, 452 (1882). A lessee, under an oil lease, whereby he has exclusive possession of the land for the purpose of searching for, producing, storing, and transporting oil, is not a meré licensee; he is a tenant within the act of April 3, 1804, sec. 6, which provides for the recovery from a landlord by a tenant for taxes paid by the latter under compulsion.

Duke v. Hague, 107, 57 (1884). A lease of described lots of land and of the exclusive right for the sole and only purpose of mining and excavating for petroleum, rock, or carbon oil," " to hold the said premises exclusively for the said purpose only," for twenty years, the lessors reserving for tillage and lumbering purposes the improved land and the use of all other land not necessary for producing oil, and further reserving certain royalties, vests in the lessee an estate for years, and not a mere license on the land demised; and such lessee is entitled to a notice of partition by the owners of the fee, and the lessee will not be bound by such partition if it divides the land to his injury, unless he has had notice thereof or been made a party thereto. "Notwithstanding these stipulations the lessee is vested with an interest in the land. Chicago & Allegheny Oil and Mining Co. v. U. S. Petroleum Co., 57 Pa. St. 83. His interest is that of a tenant for

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