Black v. Elkhorn Min. Co., 163, 445 (1896). A United States. mere locator of a mining claim, owning only the possessory right conferred by the statute, has no such estate in the property as against the United States or its grantee, as that the right of dower can be predicated thereon by virtue of any State legislation. Locator having conveyed without the joinder of his wife to another who obtained patent, the wife was held to have no dower.

Illinois.

Lenfers v. Henke, 73, 405 (1874), A widow may work mines on the land in which she has dower, that have been opened between her husband's death and the assignment of dower. Priddy v. Griffith, 150, 560 (1894). Baker, J. "It is a wellestablished rule of law that the person occupying land as dower cannot commit waste upon such land, and that the opening of coal and other mines thereon amounts to waste. But it is equally well settled in this State that where mines are already opened upon land assigned as dower, the widow has a right to operate the same and receive the proceeds thereof. It is true in this case the mines have not been actually opened upon the land assigned as dower, but there being a valid subsisting contract, executed by the husband in his lifetime, under which the lessees may at any time open the mines, and by the terms of which one dollar per acre rent or royalty is to be paid annually to the lessor, his heirs or other legal representatives, who at the time shall be legally entitled to the life estate in, or fee simple title to the land, until the mines are opened and certain fixed royalties after the mines are opened and worked, it seems clear to us that in justice the widow is entitled to the rent or royalty after the assignment of her dower. Should the lessees open mines on the lands assigned as dower, as by the terms of the lease they may, without the consent of the widow, she certainly would be entitled to the royalty named in the lease. The act of opening the mine would, in such case, be practically the act of the husband, viz. authorized by him.

"Then, in contemplation of law, for the purposes of this case, the mine may be treated as already opened when the widow's right of dower attached." To rent or royalty accrued before the assignment she would not be entitled.

Indiana.

Hendrix v. McBeth, 61, 473 (1878). The owner of coal lands having leased them for the purpose of mining the coal on royalty for twenty years, died, and his widow elected to take against his will. Held, she was entitled to one-third of the royalties received from the lease. Widow may work open mines on lands assigned her as dower. Moore v. Rollins, 45, 493 (1858). A widow is entitled to dower in a lime quarry of which her husband died seized of an estate of inheritance, if the same had been opened and worked during coverture.

Maine.

Maryland.

Franklin Coal Co. v. McMillan, 49, 549 (1878). Where strangers have dug and carried away minerals from land in the possession of a life tenant, upon which no openings or mines had been made in the lifetime of the grantor, the remainder-men may maintain trespass therefor.

Massachusetts.

Billings v. Taylor, 10 Pick. 460 (1830). This was a claim of dower in a slate quarry. It appeared that a tract of about four acres, lying together, contained the slate quarry,

about a quarter of an acre of which had been dug over. The stone lay partly above and the residue immediately under the surface, and in going down the quality improved. The practice had been to take a section of ten or twelve feet square, and go down to the usual depth, and then begin on the surface again. It was claimed that the widow was entitled to dower only in the part of the tract actually opened.

Shaw, C. J. "We think it would be too narrow a construction to say that no part of this quarry was opened except that a portion had been actually dug; but it must be considered that the whole, lying together as one tract, belonging to one estate, and wrought in the manner described, was opened, and, therefore, that the widow was entitled to dower in that as well as the other estate, of which her husband had been seized during the coverture."

Seager v. McCabe, 92, 186 (1892). S. died in 1883 and Michigan. left a tract of forty acres valueless except for iron ore. Before his death he had conveyed eighty acres adjoining, reserving the mines and minerals. No mine had been opened on either tract. In 1888 leases were made of the mining rights by the guardians of S.'s children under leave of court. Held, S.'s widow was entitled to onethird of the royalty received.

"The strict rules of the common law of England respecting waste and the rights of tenants for life do not obtain here. . . . It is not use, but abuse, that is waste. Waste must be consumption, nor is consumption always waste. . . . Our statute respecting 'dower' defines it as the use for life of one-third of all the lands of which the husband was seized during the marriage relation. 'Dower' is defined by the English authorities as the provision which the law makes for a widow out of the lands or tenements of her husband for her support and the nurture of her children. Co. Litt. 30 b; 2 Bl. Com. 130. The rules applicable to a country where landed estates are large and diversified, where the laws of inheritance are exclusive, where the theory of dower is subsistence merely, and where there is a strong disposition to free estates from even that charge, do not obtain in a commonwealth like ours where estates are small and the policy of our laws is to distribute them with each generation, where dower is one of the positive institutions of the State, founded in policy, and the provision for the widow is a part of the law of distribution, and the aim of the statute is not subsistence alone but provision commensurate with the estate.

"In the present case the grant is by operation of the statute giving the use of all the lands of which the husband was seized. The grant must be held to include the use of these lands, irrespective of whether mines were opened upon them before or after the husband's death. The question here is not the impairment of one mode of enjoyment or source of profit to reach another. There is but one mode of enjoyment of the land in question, but one source of revenue or profit. The land is susceptible of but one use." "The

Rockwell v. Morgan, 2 Beas. Ch. 389 (1861). New Jersey. widow is entitled to dower in the clay banks as well as in any other part of the inheritance. Dower is assignable in mines, quarries, and in whatever is part of

and appurtenant to the

land of which woman hath dower, and that whether it be assignable by metes and bounds or not.

The only question that can arise will be in regard to the mode of assignment, whether by metes and bounds or by a share of the profits. That course will be adopted which will be most favorable to the widow, and which will most effectually secure the enjoyment of her right. There can be no difficulty in taking an account of the profit. It appears from the answer that the clay banks have been worked in connection with the farm, and the profits of the clay may be ascertained as well as of any other part of the property. Working banks is a mere mode of enjoyment.'

Reed v. Reed, 16 Eq. 248 (1863). Tenants for life may work a sand pit which has been opened and used by the former owner. The principle is stated as applying to "mine, quarry, clay pit or sand pit." Gaines v. Mining Co., 33 Eq. 603, reversing s. c. 32 Eq. 86 (1881). The life tenant has a right to mine for his own profit, where the owner of the fee in his lifetime opened mines, even though he may have discontinued work upon them for a long period of years. A mere cessation of work, for however long a period, will not defeat the life tenant's rights; but an abandonment for a day, with an executed intention to devote the land to some other use, will be fatal to those rights.

New York.

Coates v. Cheever, 1 Cowen, 460 (1823). If during the husband's lifetime mines are opened, dower in them is properly assignable. Otherwise, if not opened in his lifetime, the opening of mines by tenant by dower is waste. The admeasurers should take into consideration the value of mines so far as opened during the husband's life, and they may, in their discretion, assign the dower in land by metes and bounds containing mines or not, by directing separate alternate enjoyment of the whole for periods proportioned to shares of the parties, or by giving the widow part of the profits. But they must not take into account the portion of the mines opened since the death of the husband by his alience, nor the improvements made therein by the said alienee.

66

Raynolds v. Hanna, 55 Fed. 783 (1893), C. C. E. D. Ohio. Ohio. By the terms of a contract the first party 66 grants" to the second the exclusive right, license, and permission to enter upon the mine and remove the coal" from described premises, together with surface and timber rights, in consideration whereof the second party agrees to mine coal, and to take out and pay a royalty on a certain minimum amount annually, and to continue until all the coal that could' be practically mined had been so mined and paid for. Rights of inspection are given to the first party, and a right of forfeiture for non-payment of royalty, and of re-entry and possession. A right of forfeiture was also given for breach of other covenants, and the second party agreed to "make no sale, transfer, or assignment of its rights under the agreement, nor to sublet any portion of the demised premises, without the written consent of the first party, any such sale, etc., to be null and void."

This agreement was held to be clearly, in its legal effect and meaning, a lease." Such a lease was made by executors under a

power conferred upon them by will. The money received therefrom was income, distributable as such, and not as a part of the corpus of the estate.

Where the chief, if not sole value of lands is for coal-mining purposes, and the only profit to be derived therefrom is by sale or lease of the coal, either of which the executor in his discretion has power to do, the fact that the coal mines were not opened in the life of the testator does not affect the authority of the executor to lease the same, so as to make the rental thereof income of the estate.

Hollinshead v. Allen, 17, 275 (1851). Rogers, J., Pennsylvania. at Nisi Prius, charged that if a tenant for life discovered and mined a deposit of sand, though technically waste, it would not work a forfeiture, and did not come within the operation of the Statute of Gloucester, but tenant for life must account to the tenant in fee for the profits.1

Neel v. Neel, 19, 323 (1852). It is not waste for a tenant for life to work mines already opened on the land.

This rule applies to all tenants for life, however the tenancy may have been created, and to all sorts of mines. It seems that a court of equity cannot undertake to determine what is an unreasonable use of a mine by a tenant for life, or restrain the same. The tenant for life may also take timber from the land for use in his mining operations. Irwin v. Covode, 24, 162 (1854). The working of open mines by a tenant for life or his alienee is not waste, either at common law or by statute. Nor is it waste to open a new drift to mines already open. The court by virtue of common-law powers might restrain unskilful mining and wanton injury to the inheritance, but not such proper mining as is subject to no other objection than its liability to exhaust the mine. It is possible that chancery would afford relief by account between tenant for life and remainder-man, but it is clear that estrepement is not the remedy.

Lynn's Appeal, 31, 44 (1857). a right to work mines or quarries commencement of the life estate. Westmoreland Co.'s Ap., 85, 344 (1877). It is not waste for a tenant for life to work open mines. When not precluded by restraining words, he may work them to exhaustion. The term "mine" when applied to coal is generally equivalent to a worked vein. And when opened, the tenant for life may pursue that vein to the boundaries of the tract. A tenant for life may not take coal from under the tract in which he has the life estate, when there has been no opening in that tract to the vein, by means of an opening made on other lands of the life tenant under which the same vein runs.

Tenant for life or his assignee has opened upon the land before the To do so is not waste.

Eley's Ap., 103, 300 (1883). Testator divided his estate into ten parts, seven of which were bequeathed absolutely; the remaining three were left in trust for three children for life, with remainders over. The will authorized the executors to sell the real estate "or to lease the coal upon or under the same," provided the consent of the owners of six-tenths of the premises was first obtained. With such consent the executors leased all the coal for an indefinite period at a royalty.

1 See Griffin v. Fellow, 811 Pa. 114, p. 17.

The rents accruing from this lease were "income" within the meaning of the will, and as such payable to the life tenants. The power given to the executors, subject to the consent of the owners of sixtenths, gave the life tenants the same rights over unopened mines as if they had been opened and worked in testator's lifetime.

Wentz's Ap., 106, 301 (1884). Testator directed that his executors should "collect and pay all the income arising from my estate, both real and personal, to my wife during the period of her life," with remainder over. The executors were given power to sell certain real estate, which was only valuable as coal land, and directed to exercise their own judgment as to the propriety of leasing or selling said estate.

The executors leased the coal upon this land which had never been worked during the life of testator. This was held to be an exercise of the power of lease, and not that of sale, and the rental therefrom went to the life tenant as income.

McClintock v. Dana, 106, 386 (1884). A testatrix by her will devised her residuary estate to her executor in trust, to invest the personal estate and the proceeds of her real estate, and to apply so much of the "yearly proceeds or income" thereof as should be necessary for the support of her daughter during her minority, and to invest for accumulation whatever balance there might be of such income. Upon the majority of the daughter the whole income of the estate was to be paid to her during her life, and after her death the corpus of the estate was limited to her children. The executors had power both to lease and sell real estate, and in pursuance thereof "leased" certain coal land unopened, when the testatrix died, to lessees who were empowered to mine the coal until it was exhausted, paying therefor a certain royalty or rent. Held, that the rent or royalty thus received was payable by the trustees to the daughter as cestui que trust for life, as "income" of the estate within the meaning of the will.

Shoemaker's Ap., 106, 392 (1884). A testatrix by her will devised land to a trustee for the use and benefit of her grandson for life, and gave the trustee power to lease the land for coal and mining purposes. The trustee leased "all the coal and veins or strata of coal in, under, or upon" the land referred to "for such term as may be necessary and required to mine and remove all the workable coal in and under said lands" for a specified annual rent or royalty.

Held, that the rent or royalty held by the trustee under this lease. was income of the trust estate, and payable as such to the testatrix's grandson as tenant for life. A tenant for life when not expressly precluded may not only work open mines, but may work them to exhaustion.

Sayers v. Hoskinson, 110, 473 (1885). Mines and quarries open at the commencement of a life estate may be worked by the life tenant even to exhaustion. See Fairchild v. Fairchild, 9 Atl. Rep. 255 (1887), under Chap. III., Div. II. C.

Jones v. Strong, 5 Kulp, 7 (1888), Com. Pleas. Testator bequeathed half of her residuary estate to her daughter, and directed the investment of the rest for her use during life, and gave executors power "to sell and convert my estate into money, or to lease my coal interest,”