Hodgson v. Perkins, 84, 706 (1888). An agreement by which the 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 and 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 mining for gold or other metals, creates a personal privilege which is not assignable, and is terminated by abandonment. Bluestone Coal Co. v. Bell, 38, 297 (1893). Where a West Virginia. lease is executed of all the coal, timber, and mineral privileges on a certain tract for ninety-nine years, the lessee agreeing to pay ten cents a ton for coal mined and shipped, and for all such timber as said lessee may think merchantable, which may be cut, shipped, sawed, or moved from said leased premises, fifty cents per one thousand square feet of one inch thickness, and a proportionate sum for other thicknesses, or twenty-five cents per tree, no time being fixed for the commencement of operations, the lessor has the right to presume that operations will be commenced in a reasonable time. nothing has been done under this contract for a period of seventeen years, the lessor has the right to presume the contract has been abandoned, and the lessee or his assignee cannot, after having been guilty of such laches, restrain the lessor from cutting and using, or removing the timber. If Where it is apparent that the lease was entered into under a mutual mistake as to the existence of a workable vein of coal in the land, and that the timber contract was induced by the belief that the coal did exist, and to aid the lessee in his mining operations, said contract should be rescinded, not only as to the coal but as to the timber. CHAPTER V. PROPERTY OF THE SOVEREIGN AND ITS GRANTEES I. In Mines of the Precious Metals. III. In Minerals under Public Highways. A. Property in the Minerals upon or under the Lands appropriated. B. Mine-owner's Rights, and Restrictions upon him by Reason of the Exercise of the Dominant Right. Damages for the taking. THE property of the sovereign in minerals contained in public land, and the title thereto of the grantees of the State, will be reserved for the next chapter. Here only its rights to minerals in private land will be discussed, except that for the sake of convenient classification the beds of navigable streams will here be included. I. IN MINES OF THE PRECIOUS METALS. Whether the right of the king at the common law to all mines of gold and silver vests in the State as the successor of the king may in many parts of the United States be still considered a question. The best-considered case is that of Moore v. Smaw, 17 Cal. 199 (1861), in which Field, C. J., rejected the doctrine as inapplicable to American institutions, holding that the regalian rights of the British crown were personal prerogatives and not an incident of sovereignty. This case overruled Hicks v. Bell, 3 Cal. 219 (1853), and the other California cases which had followed it. The doctrine of this case has not been universally accepted, however. In Gold Hill Q. M. Co. v. Ish, 5 Oreg. 104 (1873), the court, without considering the question, refers to the principle as conceded "that mines or precious metals belong to the eminent domain of the political sovereign." The prerogative right to royal mines was formerly asserted in New Jersey, as appears by the opinion of Sir Robert Raymond, Attorney-General, and Sir Philip Yorke, Solicitor-General, upon application of Governor Burnet, Dec. 12, 1722. (Forsythe's Opinions, 158; Note to 30 N. J. Eq. 323.) In Shoemaker v. United States, 147 U. S. 282 (1893), it was decided that, by the grant of Charles I. to Lord Baltimore, all veins, mines, and quarries of gold, silver, gems, and precious stones passed to the grantee, he yielding to the king one-fifth of the gold and silver found from time to time ; the confiscation of the proprietary's title in 1780 vested the same in the State of Maryland, which also became entitled to the king's one-fifth by the Revolution. And the act of cession of 1791 passed the title to gold mines in the District of Columbia to the United States. It is not considered necessary to do more than refer to the few cases in which the above title has been discussed. Suffice it to say, that should it ever assume importance, it is extremely likely that the rule laid down by Judge Field, supra, would be followed; i. e. such rights are mere personal royal prerogatives, and have no existence in this country, as being opposed to the character of our institutions. The question is abstractly of small practical importance. Since the title to most, if not all, of the land in the United States is derived from grants by the sovereign, the right to minerals therein is governed by reservations in those grants or by the organic law of the States. In the absence of a reservation to the sovereign, the owner of the land is the owner of all the minerals therein. The question of this right of the sovereign to mines in the public domain, or to mines reserved in land that was once the property of the sovereign, is a distinct question not involving any question of regalian right. In New York the State's right to mines of gold and silver and to certain other mines is asserted by the legislature. And in Michigan the property of the State in the precious metals is declared, with the provision that rights arising therefrom shall not be enforced against citizens owning the fee of the soil which contains them.2 II. IN MINERALS IN THE BEDS OF NAVIGABLE STREAMS. The beds of navigable rivers below low-water mark are the property of the State, and consequently so are the minerals found Rev. Stats., pt. 1, ch. 9, tit. II., secs. 22 How. Ann. Stats., secs. 5475, 5476. 1-5, p. 818. therein. In the absence of a grant by the State of the right to take them, any one who appropriates them is, as against every one except the State, the owner. They are like the fish in the water, the property of him who takes them. But as against the State, one who appropriates these minerals, without a grant thereof, is a trespasser. He may at the suit of the State be enjoined from taking them, or be compelled to respond in damages. The title to the soil or the minerals under navigable rivers may, however, be granted by the State; but it will not pass under a grant of the land upon the shore, and a grant of a portion of the bed of a stream will not carry the right to mine under an island within its boundaries. Coosaw M. Co. v. South Carolina, 144, 550 (1892), United States. affirming s. c. 47 Fed. 225. By act taking effect March 1, 1870, the State granted to a certain person the right for the full term of twenty-one years to dig, mine, and remove phosphate rock and phosphatic deposits from the bed of the navigable streams and waters within the jurisdiction of the State. For this privilege the grantees were to pay a license fee of five hundred dollars and a royalty of one dollar a ton. The Coosaw Mining Company succeeded to all the rights given by this act. 66 On March 28, 1876, the legislature of South Carolina passed an act to settle definitely the period at which returns shall be made of phosphate rocks and phosphate deposits dug and mined in the beds of the navigable streams and waters of the State of South Carolina, and the royalty which shall be paid thereon, and also to fix the terms on which this act may be accepted by the parties named therein." This act, after reciting differences as to the times and manner in which returns should be made and royalty paid, makes definite provisions on the subject, and then provides "that the said Coosaw Mining Company, on accepting the terms of this act within ten days from the passage thereof shall thenceforth have the exclusive right to occupy and dig, mine and remove phosphate rock and phosphatic deposits from all that part of the said Coosaw River above mentioned, so long as and no longer than they shall make true and faithful returns . . . and punctually pay the royalty," etc. The mining company under this act acquired the exclusive right, not perpetually, but only for twenty-one years from March 1, 1870. This construction results both from an application of the rule requiring public grants to be favorably construed for the government, and, independently of that rule, from the legislative intent as disclosed by the language of the statutes. 1 Pennsylvania, Act April 11, 1848, P. L. 533; Act March 24, 1849, P. L. 225; Act April 16, 1856, P. L. 365; Act April 18, 1864, P. L. 437; Florida, Act June 9, 1891, ch. 4043, p. 74; Act May State v. Black River Phosphate Co., 27, 276 (1891). A Florida. bill in equity alleging that a certain stream within the State is, in fact, navigable for the purposes of public commerce without a direct averment that the State is the owner of the bed of such stream or of the deposits therein, does not allege the title or right of the State with sufficient certainty as to warrant the granting of an injunction to restrain the removal of phosphatic or other deposits therefrom. Demurrer sustained on ground of insufficiency, uncertainty, and vagueness. "The importance of a direct averment of a present title or ownership in the State to the bed of the stream in question becomes further apparent when it is considered that even though the State does, by virtue of her sovereignty, own and control the entire beds and all deposits therein of all streams within her borders that are, in fact, navigable by the public, in the conduct of useful commerce thereon, whether the waters of such streams be salt or fresh, and whether the tides of the sea ebb and flow therein or not, a rule that we are of opinion should obtain here upon the great weight of the American authorities, yet the proprietary rights of the State therein, prior to the time of the filing of the bill, may have been granted away by one or the other of the sovereignties, Spain and England, both of whose dominions belonged at different periods the territory now known as the State of Florida, to say nothing of the possibility of the existence of a grant anterior to the bill by the State herself, if it should be found that through her legislature she had the power to make such grant." to State v. Black River Phosphate Co., 32, 82 (1893). The act of Dec. 27, 1856, known as the Riparian Act of 1856, vested the title to lands covered by water of navigable streams to the line of the channel in the riparian owners, and gave them the right to build wharves, to fill in and to erect warehouses. This act did not confer any other rights in or to the submerged land, except those expressly conferred by the act. Consequently it did not give riparian owners the right to take phosphates out of the bed of navigable waters between their land and the channel. Raney, C. J.: "At the time of the passage of our riparian act the navigable waters of the State and the soil beneath them, including the shore or space between high and low water marks, were the property of the State, or of the people of the State in their united or sovereign capacity, and were held not for the purpose of sale or conversion into other values or reduction into several or individual ownership, but for the use and enjoyment of the same by all the people of the State for, at least, the purposes of navigation, and fishing, and other implied purposes; and the law-making branch of the government of the State, considered as the fiduciary or representative of the people, were, when dealing with such lands and waters, limited in their powers by the real nature and purposes of the tenure of the same, and must be held to have acted with a due regard for the preservation of such lands and waters to the uses for which they were held." The acts of June 7, 1887 (ch. 3826), and June 9, 1891 (ch. 4043), |