conveyed to K. the entire tract except what he had previously sold. Held, by the reservations in the deeds to McG., D. retained an estate in fee, a corporeal hereditament in the minerals beneath those parcels; but this estate did not pass by the deed to K. The mineral interest being a distinct interest from the surface right conveyed, and also being separated from the balance of the tract by designated boundaries, would require apt words to convey it. "When the mines form part of the general inheritance, they will, of course, be transferred along with the lands, without being expressly mentioned in the conveyance; but when they form a distinct possession or inheritance, a distinct title to them must also be established." Bainbridge, p. 129. Inhabitants of Worcester v. Green, 2 Pick. 425

Massachusetts. (1824). The Proprietors of Worcester in 1733 passed a

vote" that one hundred acres of the poorest land on Mill Stone Hill be left common for the use of the town for building-stones." This was held not to pass the land itself, which was subsequently granted by the proprietors to other persons, and against whose successors in the title the inhabitants could not maintain trespass for cutting wood thereon. Wilde, J.: By a grant of mines the grantee has the power to dig and carry away only; the land itself does not pass, unless it be by feoffment and livery of seisin. . . . The grantee may maintain trespass quare clausum fregit for any wrong done him, but he has not a fee in the land."

Adam v. Briggs Iron Co., 7 Cush. 366 (1851). "We suppose it well settled that there may be a separate estate in mines and ores, distinct from that of the land." The presumption that minerals belong to the owner of the soil "may be rebutted by evidence, showing a severance of the mines, and a distinct estate and interest in them by grant or reservation." When so severed by the general owner, and thus constituted a distinct estate, mines are still regarded as real estate, and the general laws regarding real estate will apply to them.

Chester Co. v. Lucas, 112, 124 (1873). A grant to one and his heirs of all the iron ore, metals, and minerals in a described tract of land, with the right to enter and dig, and carry away the ores, etc., and to erect and use buildings and structures for preparing it for market, and the right to dig wells and use water and to build necessary roads, the grantor having one year's notice previous to commencing to dig upon the premises," is a grant of a present estate in fee of the ore, etc., and gives the grantee possession so as to maintain an action against a trespasser who removes the ore, although the grantee had given no previous notice of his intention to dig upon the premises.

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Hartford I. M. Co. v. Cambria M. Co., 93, 90 (1892). Michigan. By the provisions of a mining lease the lessor "licensed" the lessee to enter upon described land with the right to mine, ship, dig, and carry away" iron ore for a term of twelve years. The conditions and covenants were that lessee should have "the exclusive right to mine, etc.," during the term, that lessor should have possession of the land not occupied by lessee, that lessee should pay a royalty, but not less than a certain amount, and mine a fixed amount, or so much more as could be reasonably mined. This was not a mere license. Lessee had property in the minerals, and could maintain trover for ore mined and carried away by a trespasser.

Austin v. Huntsville Coal & Mining Co., 72, 535 (1880). Missouri. An instrument which purports, in consideration of a fixed annual rent, to lease and convey for a certain time all the coal on or under certain land is a lease. It authorizes the lessee to take out all the coal he can mine on the premises during the term, but is not a grant of the coal in the land. Where the lessee, under such a lease, does not enter upon the land, he has a mere interest to mine: he does not acquire possession of the land or property in the coal, and the lessor may maintain trespass against one wrongfully mining thereon. The existence of the lease is no defence to such an action, nor is a settlement with such lessee. Even if there had been an entry by the lessee, the lessor might have based his action upon the permanent injury to the freehold consequent upon taking large quantities of coal therefrom.

Wardell v. Watson, 93, 107 (1887). Minerals in place are land, and may be conveyed as such, and when conveyed they constitute an inheritance separate and distinct from the surface.

Hobart v. Murray, 54 Ap. 249 (1893). H. demised and leased to P., his heirs, executors, administrators, and assigns, certain described tracts of land, “for mining and manufacturing purposes only, and for the term of five years at least from the date hereof, and until the mines opened and hereafter opened on any of the said lands shall be worked out, but to continue during the existence of mineral on said lands, for said purposes," P., his heirs, etc., to have the right to enter upon the lands, to mine, dig, explore, and bore for certain named minerals, to make and use the necessary works, machinery, and buildings, H. to have the right to cultivate the lands, but not to interfere with P.'s rights. The consideration was a royalty on all minerals mined and delivered. This was held to be an absolute grant of the minerals, exclusive in the grantee.

Hartwell v. Camman, 2 Stockton's Ch. 128 (1854).

New Jersey. Mines may form a distinct possession or inheritance

from the surface. A bargain and sale to a man and his heirs of "the right, title, and interest in and to all mines and minerals opened or to be opened," with free ingress and egress, for purposes of mining in a certain described tract, passes a fee simple in the mines.

Shaw v. Wallace, 25, 453 (1856). As a general principle a lease of land carries with it the mines thereon; but this does not apply where there is a severance of mine and surface, and an exception or reservation of the former.

Suffern v. Butler, 4 C. E. Green Ch. 202 (1868). An instrument granting and conveying the right to enter upon described lands and take the ore and minerals thereon forever, unless none be found within forty years, though it be called a lease, is a grant in fee.

"The paper itself is a strange one, not known to or devised by any conveyancer familiar with the common law." Affirmed in Suffern v. Butler, 21 Eq. 410 (1869).

O'Donnell v. Brehen, 36 Law, 257 (1873). An agreement by the owner of land to let another take the sand out of a pit fifty feet wide the entire length for $650, and to give him one year's time to take it out, is for the sale of an interest in lands, and is within the Statute of Frauds.

East Jersey Co. v. Wright, 32 Eq. 248 (1880). A license confers a right of property in minerals when they have been severed from the freehold, while a lease is the conveyance of an actual interest in the thing demised.

Canfield v. Ford, 28 Barb. 336 (1858). A conveyance New York. to one "and to his heirs and assigns forever" of "all the mines, ores, minerals, and metals lying or being in or upon certain described land, together with the right to raise, work, and carry away the same, the right to put up all buildings and to use all lands necessary for that purpose, and the right of ingress and egress for that purpose, passes a corporeal hereditament, an estate of inheritance, for a part of which an action of partition will lie.

Marvin v. Brewster Iron M. Co., 55, 538 (1874). A deed of lands reserved "always all mineral ore now known or that may be hereafter known, with the privilege of going to and from all beds of ore that may be hereafter worked." The grantor and his assigns owned all the mines, minerals, and ores upon the described land.

Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82, 476 (1880). The complaint set forth the following facts: In 1856 T. owned a tract of land through which the State made a cut for a canal, and in so doing large piles of marl were thrown up on the sides of the cut. In 1865 T. sold the land to S., excepting the beds and deposits of marl lying on both sides of the cut, and providing "that said marl may remain on said land for a period of ten years," and giving the seller the right to remove it or any part of it within that time. In 1866 T. conveyed the marl to B., who removed portions thereof and subsequently conveyed to plaintiff's grantor. In 1869 T. again became owner of the land, and remained so until his death the same year. The land was then sold to E., and thereafter by him to defendants, who held possession of and claimed to own the land and the marl.

Held, the piles of marl were a part of the realty. By the deposit it became incorporated, and after as before the digging of the canal it was a part of T.'s freehold; and this without regard to the question whether or not the State, before cutting the canal, had acquired title to the land.

The exception in the deed was of an interest in the land terminable at the expiration of ten years; and if the right of removal was not exercised within that period, the grantee should be held relieved from the burden of the exception.

B.'s interest was real estate within the recording acts.

The exception in the deed to S. was not constructive notice after the expiration of ten years.

The repurchase by T. merged the reserved right to the marl saved from the grant to B.

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Bank v. Dow, 41 Hun, 13 (1886). Where the owner of land conveys the same, excepting and reserving all the oil, gas, and other minerals in and beneath the surface of said premises, with the exclusive right to dig, bore, mine, and operate for the same," and with the right of way over said premises, as the same may be necessary and convenient for such operations, for twelve years, and with the right

during that period to use so much of the premises as may be necessary and convenient to erect tanks, engines, buildings, machinery, etc., for the purpose of such operations, and at any time to remove the same, and also the right to take water for use in such operations, the interest reserved is not a mere license: it is an interest in real estate, and as such is subject to the lien of a judgment.

Genet v. D. & H. Canal Co., 136, 593 (1893), reversing s. c. 122, 505. Plaintiff, by an instrument in writing called a "Memorandum of Agreement," leased "to defendant, its successors and assigns, all the coal contained in or under" a described tract. "Said coal to include all the coal that can be economically mined or taken out' from the premises. Lessee agreed to mine ten thousand tons a year for two years, and after that twenty thousand a year, to pay for at least ten thousand a year, and to pay interest on any deficit below twenty thousand until made up. It was further agreed that if the coal in any of the veins should not prove to be of a merchantable quality, or if it became impracticable to mine the same in consequence of extraordinary expenses in mining and cleaning said coal, or if the veins should prove to be of such quality or thickness that the coal cannot be mined and prepared for market without greater expense than is bestowed upon coal taken from the same veins in the mine of the party of the second part for the time then being, then the liability of the said party of the second part to mine, take, and pay for said coal shall cease." And in such event payment was only to be made for coal that could be safely and economically taken out. The consideration was a royalty on the merchantable coal, which term was defined by the contract. Provision was also made for abandoning such parts of the coal as should contain faults, unless lessor should direct that they be "driven," in which case a fixed sum for each fault must be paid to the lessee by the lessor.

Finch, J.: The Pennsylvania cases "have held, until the rule must be deemed firmly established in those tribunals, that a transfer of all the coal in, on, or under a given described surface, even though taking the form of a lease and terminable in a fixed number of years, is a sale of the coal, and a grant of it in fee as a severed parcel of the land. The doctrine is, perhaps, most fully developed in Sanderson v. Scranton, 105 Pa. 469. . . . Whatsoever we may think of the general doctrine, one thing about it is quite obvious. It applies to a case, and only to a case, in which, by the terms of the agreement and in contemplation of the parties, the whole body of the coal, considered as of cubical dimensions and capable of descriptive separation from the earth above and around it, and as it lies in its place, is absolutely and presently conveyed. The thing sold must be such that it can be identified as land, and severed as land from the estate of which it forms a part. Every case upholding the doctrine, which I have been able to examine, has that marked characteristic. (Caldwell v. Fulton, 31 Pa. 475; Caldwell v. Copeland, 37 id. 427; Armstrong v. Caldwell, 53 id. 284; Scranton v. Phillips, 94 id. 15; Sanderson v. Scranton, 105 id. 469, and 109 id. 588; Fairchild v. Fairchild, 7 Cent. 873; Montooth v. Gamble, 123 Pa. 240; Kingsley v. Coal & I. Co., 144 íd. 613; Lazarus Est., 145 id. 1.) That feature seems

to be not merely accidental or incidental, but a vital and essential element of the doctrine as it is asserted and applied. But that feature does not exist in the present case. The broad words of the primary grant are, indeed, sufficient, within the cases cited, to carry title to the coal as land, but they are cut down, narrowed, and restrained by the specific provisions which follow. It is not the mine as such, it is not the veins or strata as such, it is not the coal in place, it is not even the whole of the coal, which one party contracts to sell and the other party to buy, but only some unknown and indeterminate fraction or portion of the coal which no human power can locate or identify as land. It is mineral product, not land, which is the subject of the dealing. It is to be, first, such portion of the coal as shall prove to be merchantable,' and which equals in quality the average yield of the adjacent mines; it is, second, to be such, and so much, as does not pass a screen with half-inch meshes; it is to be, third, only so much as can be safely and economically mined; it is to be, fourth, so much merely as can be mined and cleaned without greater expense than the mining on adjacent property requires; it is to be, fifth, no more than it will be profitable to mine when the veins approach exhaustion." Then, in case a fault is encountered, it need not be driven if the cost would exceed $500, “in which event the coal beyond the fault would not pass at all. The very terms of the description show that nothing was further from the purpose of the parties than a grant of the coal as land, and that the defendant company could not lay its hand upon any specified cubical mass of coal and say, this is mine, as land according to the description in the deed; for it could not know, and nobody could know until a future determination, what part or portion of the vein would really pass. It will not meet the difficulty to say that these restrictive clauses bear only upon the amounts to be paid and the method of ascertaining those amounts. Nothing indicates that the defendant was to have any coal that he did not pay for, and so by its conclusive inspection could confiscate, as below grade, half of the product of the mine; and the very terms used show that they described not only what the company should pay for, but also what it should take.'

"The title to the coal was to pass in the future, and conditionally upon the existence of facts later to be ascertained. Of course it was absurd to provide that the company should not be liable to take a part of the coal when by force of the deed it took the whole at once and in presenti, and absolutely in fee. All the terms of the instrument are inconsistent with an immediate passing of the title. What was to pass, and what price should become payable, were both adjourned, to be settled by the developments of the future. The contract was executory on both sides. What and how much coal was to pass from the lessors and to the lessee was made dependent upon the revelations of the actual mining process, and what and how much was to be paid, depended also upon future conditions. The thing to be sold and the price to be paid were each alike dependent upon subsequent events, and the contract was therefore executory and must be treated, not as a deed into which no unexpressed conditions can be implied, but as an executory contract, the interpretation of which is open to clear and reasonable implications."