He is accountable to his co-tenants for their share of all that he mines. He must compensate them for the value in place of their share of the minerals which he mines and takes. This value is to be measured by the value of ore leave or royalty, that is, of the privilege of removing the mineral, which in turn is to be arrived at by expert opinion. This obligation is enforced in the same manner in the case of mines as in the case of the profits of any other real estate owned jointly.1

This right of a tenant in common to dig for minerals, with the appurtenant right to deposit the refuse of mining on the land, is not an incumbrance on the interest of his co-tenants.

One tenant in common cannot create a new and distinct tenancy in common in the land. He consequently cannot convey mineral rights without the concurrence of his co-tenants, nor convey his interest in the land, reserving to himself the mineral rights, though he may grant a license to another to dig to the extent of his interest. Such licensee is accountable to a dissenting co-tenant.

For the same reason an owner of the surface who, with others, is a tenant in common of the minerals, may not convey a portion of the surface and his share of minerals beneath it.

Lands containing minerals are subject to partition like any others, for if they cannot be divided without prejudice to the whole, they may be awarded to one or more of the tenants at a valuation, or they may be sold and the proceeds divided.2 In New Jersey, however, it has been held that when the location, extent, and value of the mineral deposits cannot be ascertained, there can be no partition. The possession by a tenant under a mining lease is not a bar to partition. Pending partition proceedings, however, mining on the property will be enjoined if it is shown that it is causing irreparable injury to the property, or will embarrass the proceedings.

Clowser v. Joplin Mining Co., reported in note to United States. Bly v. United States, 4 Dillon, 469 (1877), C. C. W.

D. Mo.

Krekel, J., in charging the jury, said: "The court approves the

1 In Pennsylvania this right to an account is defined and a remedy provided by Act of Assembly, 25 June, 1850, P. L. 573, as also are the rights in general of tenants in common of coal or iron ore mines or minerals by Act 22 April, 1856,

P. L. 502.
when the
equitable.

488.

These acts are only applicable rights of the complainants are Coal Co. v. Snowden, 42 Pa.

2 Pennsylvania Act 26 February, 1870, P. L. 256; Act 24 May, 1871, P. L. 1088.

rule laid down by the Supreme Court of Pennsylvania. Where a tenant in common exercises his undoubted right to take the common property, and has no other means of obtaining his own just share than by taking at the same time the share of his companion, the value of the ore in place is the only just basis of account. Coleman's App.,

62 Pa. St. 278."

Rainey v. Fricke Coke Co., 73 Fed. 389 (1896), C. C. W. D. Pa. Complainant brought a bill in equity against defendant for the partition of certain land which they owned in common, and of which the underlying coal constituted the principal value. Defendant in its answer conceded the right to a partition. Pending this suit, complainant extended workings from certain mines owned by him on adjoining land and began mining coal from the common land. Defendant then filed a cross-bill to enjoin such mining. Held, that the court had the power to enjoin such mining during the pending of the partition suit, and in view of the complications which would result from it, in the adjustment of the respective interests of the parties, and the possible injury to the common property, such power should be exercised.

Omaha & Grant S. & R. Co. v. Tabor, 13, 41 (1889).

Colorado. A license to dig ore given by one tenant in common ex

tends only to his interest in the mine.

Hartford Co. v. Miller, 41, 112 (1874). Where the Connecticut. owner of land from which mineral rights have been severed, is a tenant in common with others in such rights, and conveys a portion of the land by metes and bounds, and also his share of the mineral rights therein, the deed, so far as such easement is concerned, is inoperative as against his co-tenants.

Marsh v. Holley, 42, 453 (1875). A large quantity of lands belonging to the estate of a deceased person was distributed to seven children, with a provision in the distribution that all the iron ores in the land should be owned by them in common in equal seventh parts, and that reasonable damage should be paid to the owner of the land who should be injured in digging for or transporting the ore. Defendant, who had become owner of three sevenths, executed a bond to plaintiff for a conveyance to him of an undivided three sevenths of the ore right upon a certain farm, which was a part of the estate and adjoined other parts. In an action for breach of covenant for failing to make the conveyance, held, the right of the other co-tenants to dig for ore on any part of the estate, and deposit on any part of it the earth and débris thrown out in doing so, was not an incumbrance on the ore rights conveyed, but was merely an inconvenience inseparable from the nature of the estate, and to which each of the co-tenants must submit.

The defendant could not convey an undivided ore interest in a part of the estate without the concurrence of his co-tenants.

Hull v. McDonald, 22, 131 (1857). If one tenant in comGeorgia. mon receive more than his just share of the proceeds of gold washings, he is liable to account to his co-tenants for such surplus, and for all the profits which he makes out of such surplus; and if there is proof that he used such surplus, and no proof as to whether he made any profits out of it or not, the presumption is that he made prof

its out of it, and profits at least equal to the interest on the value of such surplus calculated at the legal rate.

Illinois.

Murray v. Haverty, 70, 318 (1873). Mining coal tends to injure, destroy, and lessen in value the estate in lands within the meaning of an act authorizing one tenant in common to maintain trespass or trover against his co-tenant for such an act.

Ames v. Ames, 160, 599 (1896). In a proceeding for partition, the surface may be awarded to one party and the underlying minerals to another, where the parties consent, and owelty may be ordered for the purpose of equalizing the shares.

If these two separate interests and titles were united in one person, . . . the owner would have the right to sever the two estates by deed or devise. Where the owner would have that right there is no innerent amiculty in a court of chancery severing the two estates in a partition proceeding, where it is rendered necessary in the interest of justice, and decreeing the dominant estate to one and the servient estate to another. In recognizing this principle we are applying it to the facts of the particular case before us, where the defendants in error consented to accept the servient estate. We do not at this time determine the question whether a person not conversant with the management of the mine, and without capital to operate it, could be compelled to accept as his share a mine thus set off to him against his consent, or whether a mine could be set off to a minor."

Massachusetts.

Adam v. Briggs Iron Co., 7 Cush. 361 (1851). A tenant in common of three-fourths of a tract of land conveyed his estate, reserving the iron thereunder. This reservation was void as against his co-tenant. An attempt to create a new and distinct tenancy in common between one co-tenant and others in distinct parts of the common estate is contrary to the rules of law. The owner in severalty of land may convey the mines to one person, the quarries to another, and retain the general interest in the soil; but if the owner of an undivided part of a piece of land could do this, it would be attended with all the inconveniences to his co-tenants arising from a conveyance of his interest in a particular part by metes and bounds.

Watson v. U. R. & G. Gravel Co., 50 Ap. 635 (1892). Missouri. One tenant in common has the right to sell gravel taken by him from the land, and to collect the purchase-money.

Haeussler v. Mo. Iron Co., 110, 188 (1892). Possession of land by a tenant under a perpetual mining lease will not prevent a partition suit between the co-owners. subject to the rights of the tenant.

Childs v. K. C., St. J. & C. B. R. Co., 117, 414 (1893). The excavation and removal of rock by a co-tenant from the joint land, and selling the same and thereby diminishing the value of the estate, constitute waste.1

Franklinite Co. v. Condit, 19 Eq. 394 (1869). One

New Jersey. tenant in common cannot convey mineral rights to the prejudice of his co-tenants. Such conveyance is void as to the cotenant, but good as to the grantee. A grantee of the right to minerals from one tenant in common cannot call for a partition of the premises.

1 This view is not in accordance with the general rule.

Kemble v. Kemble, 44 Eq. 454 (1888). A partition of lands containing mineral deposits cannot be ordered if the location, extent, and value of such deposits cannot be ascertained.

Cases growing out of the. ownership of the Cornwall Pennsylvania. Iron Banks. The Cornwall estate consisted of various tracts, aggregating about nine thousand acres. One of these was the Cornwall Furnace Estate, a part of which was the Cornwall Ore Banks and Mine Hills. In 1785, of the Cornwall Furnace Estate, Curtis Grubb owned undivided three sixths, Robert Coleman one sixth, and Peter Grubb two sixths. On Dec. 9, 1785, these three entered into an agreement for the partition of the Cornwall Furnace Estate, Hopewell Forges, and Union Forge, held by them in common, by which they appointed seven persons named to make valuation, appraisement and partition thereof, and provided that the ore banks belonging to Cornwall Furnace be divided into three equal parts; two parts, considering quantity and quality, be allotted to Curtis Grubb and Robert Coleman, and the other part to Peter Grubb. Peter Grubb died in January, 1786, having devised his real and personal estate to his sons, Burd Grubb and Henry Bates Grubb, to be equally divided between them.

Curtis Grubb, Robert Coleman, and the guardians of Burd and Henry Bates Grubb entered into an agreement, dated May 6, 1786 (referring to agreement above), for the valuation, partition, etc, of the Cornwall Furnace property and other estate held in common, providing that "the ore banks belonging to Cornwall Furnace aforesaid be divided into three equal parts," two parts, considering quality and quantity, to be assigned and allotted to Curtis Grubb and Robert Coleman, and the other part to Burd and H. B Grubb. Seven persons were appointed to make the valuation and partition, of whom Thomas Clark was one. By this agreement Cornwall Furnace, with such parts of the lands and privileges as should be deemed necessary and equal, was to be assigned to Curtis Grubb and Robert Coleman. An equivalent for their shares was to be rendered to Burd and H. B. Grubb out of other of the real estate. Amicable actions of partition were to be entered into to effect the arrangement. On Aug. 30, 1787, another agreement was entered into, wherein it was stated that it had been found, on the fullest investigation, that the agreement of 6th May, 1786, could not be carried into execution without injustice to some of the parties. Therefore it was agreed that certain persons named (Thomas Clark being one) should make partition of Cornwall Furnace, Hopewell Forges, and all the lands, etc., according to quantity and quality, and assign and allot the same according to the real interest and conveniences of the several parties, "provided always, and it is hereby agreed, that the ore banks belonging to the Cornwall Furnace shall remain together and undivided as a tenancy in common, the said Curtis Grubb being entitled to three sixth parts thereof, the said Robert Coleman being entitled to one sixth part thereof, and the

1 For the sake of convenience in reference these important decisions are grouped together. Their close relation requires this juxtaposition, and their im

portance on the subject of the joint ownership of mineral land justifies the unusual amount of space given to them.

said minor children being entitled to the remaining two sixth parts; and that for this purpose an accurate survey shall be made of the said ore banks and hills, if not already done, and it is hereby declared to be the true intent and meaning thereof that neither of the said parties, their agents or workmen, shall interfere or interrupt either of the other parties at any mine hole by them occupied for the purpose of raising

iron ore."

A subsequent agreement of August 30, 1787, provided: "Whereas it has been suggested that the article respecting the ore banks and hills requires further explanation, and that it may so happen that veins of ore may extend beyond the limits of the survey made lately by Thomas Clark, it is agreed that the said Burd Grubb, Henry Bates Grubb, and Robert Coleman and their respective heirs and assigns shall have full liberty and privilege of ingress, egress, and regress to and from the said mine hills, and shall have free and uninterrupted liberty and power to dig, sink shafts, drive drifts, raise and carry away any ore that may be found to extend beyond the limits of the said survey, without doing any material damage to the iron works or plantations. And it is further agreed that the privileges of the water are hereby secured in most ample manner for the use of Curtis Grubb and Robert Coleman, their heirs and assigns forever, and that this memorandum be considered to all intents and purposes part of the foregoing agreement."

66

Amicable actions in partition were entered, and the referees (Thomas Clark being one) reported a division of the real estate, and further that the two tracts, and also the ore banks and mine hills of Cornwall Furnace, do still remain undivided, to be held by the said Curtis Grubb, Robert Coleman, Burd Grubb, and Henry Bates Grubb, as tenants in common, according to their respective shares, and to the covenants and articles in the said agreement hereinbefore recited contained." This report was confirmed and partition ordered.

Coleman v. Coleman, 19, 100 (1852). Robert Coleman and George D. Coleman, owning fifteen forty-eighth parts of the Cornwall ore banks, brought partition against Robert W. and William Coleman, owning twenty-five forty-eighths, and E. B. and C. B. Grubb, owning eight forty-eighth parts thereof. The parties all owned furnaces on the Cornwall estate, which had to this time been supplied with ore from these banks. The banks consisted of shapeless and unstratified masses of iron ore distributed unequally as to quality and quantity under the surface, which latter was of no value.

The amicable partition above was held to be a bar to this action. This constituted a judgment in partition, and was a good defence to a subsequent action for partition of the mine hills. It was, in effect,

partition of the profits of the mine hills. The soil was valueless. The ore was the object to be secured, and this was indivisible into equal parts.

The partition thus made was binding not only as a judgment, but as a covenant running with the land. If the ore should fail, or the manufacture of iron on the estate should cease, the agreement would have accomplished its mission, and the hills might then be parted. But until the happening of one or the other of these events they were to remain appurtenant to the rest of the estate as before.