permit the taking of phosphates from the beds of navigable waters, and prescribe the terms and conditions on which they may be taken; these statutes apply to riparian owners falling within the provisions of the act of 1856.

Brandt v. McKeever, 18, 70 (1851). A grant by Pennsylvania. the State of a portion of a bed of a river under a statute authorizing the issuing of warrants vesting the "right to dig and mine for iron, coal, limestone, sand, and gravel, fire clay, and other minerals," does not pass the soil. This and the sand deposited there by the current belong to the State, and the grantee could not maintain trespass against one digging and taking away such sand.

Solliday v. Johnson, 38, 380 (1861). Stones taken from the bed of the Delaware, a public navigable river, belong to him who gathers them. In an action against one who has carried them away, it is not a valid defence that they are the property of the State.

Wyoming Co. v. Price, 81, 156 (1876). Land acquired by the Commonwealth under the legislation providing for the construction of the Pennsylvania Canal, vested absolutely in fee in the Commonwealth and its grantees. A riparian owner had no interest or title therein or in the coal under the canal.

A. occupied a colliery adjoining the land of B., and mined over his line into B.'s land. A. then agreed to pay B. for the coal mined, and all that he might mine for eight months thereafter. B.'s land lay on both sides of the canal, and A. mined under the canal between B.'s lots. Held, that the relation of landlord and tenant did not exist between A. and B. so as to prevent A.'s denying B.'s title to the coal under the canal.

Penn. Co. v. Winchester, 109, 572 (1885). Act of April 11, 1848, provided for application, survey, and grant of a quantity not exceeding one hundred acres of the bed of any navigable river, the warrantee to have the right to dig and mine for minerals.

This does not give to the patentee the right to mine under an island within the boundaries of his grant, which, under prior existing laws, was subject to application and sale.

A subsequent grantee of such an island may maintain ejectment against patentee for so much of said island as was above low-water mark at date of application and survey of said patentee.

Gilchrist's Appeal, 109, 600 (1885). The city of Wilkes-Barre is bounded on the northwest by the low-water mark of the Susquehanna River, while the borough and townships on the opposite side of the river are likewise bounded by low-water mark thereon. After the erection by the Commonwealth of said municipalities the coal beneath the bed of the river was conveyed by the Commonwealth to private parties. Held, that such coal cannot be taxed by the city of WilkesBarre, it not being within the limits thereof.

Title to soil

State v. Guano Co., 22, 50 (1884). South Carolina. in all navigable streams in which the tide ebbs and flows remains in the State, and does not pass under her grant of the superjacent land. A grant by the State of the lands on the shore of the navigable tidal channel gives title only to high-water mark. The State holds the beds of the channels of her tidal navigable streams

for the public use of her citizens. Such property may be disposed of by an act of the legislature, but may not be granted by her officers as "vacant land." The fact that the State has granted the right to another corporation to dig and mine for phosphate rock in these streams does not prevent the State from bringing this action to assert her title to the soil.

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.

III. IN MINERALS UNDER PUBLIC HIGHWAYS.

Where the title to the roadbed is in the State or the municipality, the title to the minerals therein or thereunder is likewise in the State or the municipality. But if the public have only the right of passage, and the title to the land subject to this is in the adjoining owner, the property to the minerals is in such adjoining land-owner, subject only to the obligation not to interfere with the rights of the public.

This last statement is equally applicable to private ways. The owner of the right of way has no property in the soil or the minerals therein. These belong to the owner of the servient tenement, subject only to the obligation of surface support of the road. When the owner of land dedicates streets thereon to public use, reserving therefrom the minerals, and subsequently conveys lots described as bounding on such streets, the grantees succeed to the right to the minerals which was possessed by the original owner. Whether the stone, gravel, and soil excavated from such a highway may be used at other points for the construction and repair of the road has been questioned, but the general opinion is that such a use is authorized.1

Lyman v. Arnold, 5 Mason, 195 (1828) C. C. D. United States. R. I. A liberty granted in a deed" to dig a canal through the grantor's land" does not include as an incident the proprietary interest in the soil when dug up and removed.

1 In Kansas, cities may by contract dispose of the right to mine beneath the streets, subject to the duty to make compensation to owners of private property for injuries done by the operations. Kansas Gen. Stats. 1889, secs. 3840-2. In Ohio;

by act April 13, 1894, 90 O. L. 149, the owners of land over which a highway passes may mine thereunder with the consent of the municipal authorities, upon giving security.

Story, J. "If the use of a thing is granted, whatever is necessary for the enjoyment of such use or for the attainment of such use is by implication granted also. But if it be not necessary, but may be convenient only, it is not granted. So, too, grants are to be construed according to the subject-matter and the natural presumptions arising from their terms, and thus to render them expositions of rational intentions. If a contract is made allowing a person to dig coals or turf in another's land, the law presumes that the coal or turf is to belong to the grantee. . . If he had no interest in the things for the labor bestowed upon it he could have no recompense, and the grant as such would be utterly worthless and nugatory. . . . Where a highway is made over another's land, the soil still remains in the owner subject to the easement. . . . The mere fact that a person having a grant of a privilege, servitude, or easement in another's land bestows his labor upon the soil, or separates and gives it value thereby, constitutes no sufficient ground to infer a change of property in the soil, for such labor is bestowed in order to enjoy such privilege, servitude, or easement."

The principal franchise or servitude is the canal, of which there may be the most perfect enjoyment without the ownership of the soil taken out. That may be a convenience, but is not necessary, and therefore not incident to the grant.

Smith v. Rome, 19, 89 (1855). A gift of the right of Georgia. way is not a gift of the earth and other minerals which may exist within the boundary lines of the way. The owner of land upon which was a quarry gave the city a right of way for a street. To cut out and take the rock and use it for macadamizing streets amounts to waste, and may be restrained by injunction.

Matthiessen & Hegeler Zinc Co. v. La Salle, 117, 411 Illinois. (1885). A party owning city lots has no right to make a subterranean passage from one to another through the underlying soil of a public street, the fee of which is not in him, but in the city to the use of the public, in order to mine and remove minerals, even though no injury may thereby result to the street as such.

Union Coal Co. v. La Salle, 136, 119 (1891). Where the fee simple of the land covered by streets is in the municipality, the title to underlying minerals is also in the municipality, which may maintain trespass against any person removing such minerals without its consent, although no injury is done to the street.

Bundy v. Catto, 61 Ap. 209 (1895). The public have an easement in the soil of a highway, not only for travel, but for using it in a reasonable and proper manner, to keep the road in repair and improve it. Gravel may be taken from one part of a highway and used to repair another part, regardless of the ownership of abutting lands. Des Moines v. Hall, 24, 234 (1868). Under the law of this Iowa. State the laying off and recording of a town plat vested in the corporation the fee simple of the streets thus dedicated to public use. In such a case neither the original proprietor nor his grantee has any right to deposits of coal within the limits of the streets, and the corporation may maintain an action against him for coal mined and taken by him from beneath the same.

Tousley v. Galena M. & S. Co., 24, 328 (1880). The Kansas. owners of a tract of land on which a city was located filed a plat in accordance with the statutory requirement, and dedicated the streets and alleys to public use, but reserved to themselves all the minerals under the surface of such streets and alleys. The lots were subsequently conveyed by general warranty deeds without reservation or condition. Held, these conveyances passed the grantor's title to the middle of the street, and consequently passed the minerals. The grantor was not entitled to an injunction against mining under the streets.

Hawesville v. Hawes, 6 Bush, 232 (1869). Where Kentucky. the absolute title to the streets and not a mere easement for the use of the public is vested in the trustees of a town, such trustees own the coal under the surface of the streets. If that coal has been mined and removed by the lessee of the heirs of the individual who gave the land for the streets to the town, the trustees may waive the tort, and sue the said heirs for the rental received as money had and received.

St. Anthony Falls Water Power Co. v. King Bridge Minnesota. Co., 23, 186 (1876). Plaintiff dedicated to public use as a highway, a strip across its land, connecting a street with a bridge which the city of M. contemplated building. The defendant made a contract with the city to build the bridge, and entered into an agreement with the plaintiff, by which the latter agreed that the defendant might take all the stone which it might need in constructing the bridge from the plaintiff's land, for which defendant agreed to pay at a certain rate per perch for stone taken irrespective (so found the jury) of the part of the land from which the stone was taken.

Held, the plaintiff might on this contract recover as well for stone taken from the dedicated land, and which it was necessary to remove for the purpose of placing the bridge, as for that taken from the undedicated land of plaintiff. In the absence of contract the defendant would have been entitled to use the rock which it was necessary to remove in order to make a place for the bridge. Upon the dedication of land as a highway the public acquires the right to remove and use the stone therein in the construction of the highway. The defendant, however, had not the right to use this without the authority of the municipality. This authority was implied, so far as indicated above.

Friend v. Porter, 50 Ap. 89 (1892). Plaintiff having Missouri. sunk a shaft within the lines of a city street, sold the same with a license to take minerals from adjacent lots. In an action for the purchase-money, it was held he could not recover because 1. "The street having been dedicated to public use as a thoroughfare, no private party (not even the city itself) had any authority or right to use it for any other purpose.'

2. The maintenance of the shaft was a nuisance, and the contract was void as intending the performance of an act forbidden by law. Snoddy v. Bolen, 122, 479 (1894). The owners of a tract of land laid the same off into lots, streets, and alleys, and dedicated the streets and alleys by a deed to the county, which excepted "the right to all

valuable minerals in said land, which we hereby reserve, together with the right to mine the same." The lots were subsequently conveyed by number, without reference to the minerals underlying the streets. The lot-owners were held to be entitled to the minerals under the streets. The rule is that a conveyance of land bounded upon a public street carries the fee to the middle of the street, unless a contrary intent is clearly expressed. The rule is not changed by the fact that the minerals under the street were excepted from the grant to the county.

IV. IN MINERALS CONTAINED IN LANDS TAKEN BY EMINENT

DOMAIN.

A. Property in the Minerals upon or under the Lands

appropriated.

Where land is taken by a railroad or similar company, the company has only a right of way. It has no property in the minerals below the bed of the road, but it may remove and use the stone necessarily excavated in making the bed of the road.

Whether such a company may go further and excavate stone upon the right of way, to repair the road, is in dispute. The better opinion seems to be that the company has no such right. Its right is a right of way, and the soil and minerals therein still belong to the owner of the land, who may excavate them, provided he leaves sufficient support for the road.1

Smith v. Halloway, 124, 329 (1890). The grant of a Indiana. right of way to a railroad company being the grant only of an easement, the owner of the fee remains the owner of springs, streams, and minerals. He may not interfere with the free use of the right of way, but subject to this use he may make all lawful use of the land.

Kelly v. Donahoe, 2 Metc. 482 (1859). The condemKentucky. nation of land by a turnpike company invests the company only with the right to use the land for the purposes of the road. Such a company having, by its charter, the right to make such excavations, fills, and embankments as the proper construction of the road, according to its prescribed grade and width, renders necessary, has, as incidental to this right, the right to quarry and remove stone and earth from one point to another within the lines of the road, and from the lands of one person to that of another. But it has not the right to the quarries and soil under the road for the purpose of repair

1 In Nevada it is unlawful to mine under or upon land belonging to a rail

road without the company's consent. Gen. Stats. 1885, sec. 887.