This was a sale and conveyance. It was of all the coal, and was exclusive in the vendees.

Rankin's Ap., 1 Monaghan, 308 (1888). One who has a life interest in the coal, but no interest in the surface, may mine the coal to exhaustion through open mines.

(The same rules apply as in case of life estate in lands with coal or other minerals underlying them.)

Fairchild v. Furnace Co., 128, 485 (1889). A written contract, though not under seal, by which, in consideration of a certain sum, A. agrees to convey to B. the right and privilege of digging all the ore on A.'s land, is in equity, after payment of the consideration, the equivalent of a conveyance of the title to the ore in fee.

Lillibridge v. Lackawanna Coal Co., 143, 293 (1891). Plaintiffs "granted, demised, leased, and to mine-let" to defendant "all the merchantable coal, together with the sole and exclusive right to remove the same, under" a certain tract of land, "to have and to hold the coal in and under the said land . . . until the exhaustion thereof under the terms of this indenture." The defendant covenanted to prosecute the business of mining energetically, to pay a royalty on coal mined, but on at least fifteen hundred tons a year.

Held, (1) The above indenture was an absolute conveyance of the coal as land to the defendant.

(2) The defendant acquired together with the fee in the coal the ownership of the space enclosing it, and the right to use it for any purpose it might see fit, and consequently to carry coal from the adjoining tract through it.

Green, J. "In the opinions delivered in the foregoing and other cases we have emphatically decided that the coal or other mineral beneath the surface is land, and is attended with all the attributes and incidents peculiar to the ownership of land. We have held the mineral to be a corporeal and not an incorporeal hereditament; that the surface may be held in fee by one person and the mineral also in fee by another person; that the mineral may be subject to taxation as land, and the surface to an independent taxation as land, when owned by a different person; that possession of the mineral may be recovered by ejectment, and title may be acquired by adverse possession under the Statute of Limitations, though not by prescription, because it is not an incorporeal right. In short, we have for nearly half a century judicially regarded the ownership of mineral, where it has been properly severed from the surface, as the ownership of land to all intents and purposes."

Kingsley v. Hillside Coal & I. Co., 144, 613 (1892). A deed by which the grantor grants, bargains, sells, aliens, enfeoffs, releases, conveys, and confirms to the grantee, his heirs and assigns, a tract of land, the possession thereof to extend only to the use of the land as a coal field, with power to search for coal, mine and remove it when found, etc., these privileges to extend to one hundred years, the consideration of which was $150 and the satisfaction of a certain judgment, constituted a sale of the coal and not a lease.

"These instruments conferred on Meredith and his successors in title an exclusive right to mine and sell all the coal in the tract described, subject to the exercise by the grantor and his vendee of the

privilege aforesaid. It is obvious that the parties to them intended a sale of the coal. The sum paid for the mine right was the price of the coal in place, and in London's receipt on the first contract it was called 'purchase-money.' A grant of a mine right under which the grantee is authorized to remove and sell, for his own benefit, all the coal contained in the tract described, is a sale of the coal, and not a lease of it. It is contended, however, that the creation of a term within which the right is to be exercised clearly stamps the transaction as a lease. In Hope's Ap., 29 W. N. 365, the instrument was in form a lease for a term of ninety-nine years, and it was held to constitute a sale of the coal, with a definite term in which to mine and remove it. In Montooth v. Gamble, 123 Pa. 240, the agreement was regarded as a sale of coal, to be mined and removed within seven years, although it contained a provision that the coal unmined, if any, at the end of the term should revert to the vendor. Where a fair interpretation of the written agreement shows that a sale was intended by the parties, and a right to mine and remove all the coal is conferred by it, in express terms or by plain and necessary implication, it will constitute a sale, notwithstanding a term is created within which the coal is to be taken out. We hold that the writings in this case constituted a sale of the coal to be mined within the term stated therein."

Lazarus' Est., 145, 1 (1892). A grantor "demised and leased" all the anthracite coal under certain lands, with the privilege of mining and removing the same; the grantees to have and to hold the said anthracite coal .. for and during the term of ninety-nine years," and to pay a fixed rate per ton for coal mined, but not less than a stipulated sum each year.

The transaction constituted a sale of the coal, giving to the grantees an absolute and exclusive right to take all the available coal in the tract described; and it was immaterial that the consideration, beyond the stipulated sum payable in any event, was regulated by the rate per ton for the coal which might be mined.

"Nor is it material that no coal has been nor may be mined within the term specified. The grantee has the absolute and exclusive right, under the conveyance, to mine all the available coal contained in the tract described, and it rests with him alone whether or not there shall be a reversion. If he should exercise his right within the term, the coal will by severance have become absolutely his, and his grantor will have received its equivalent in cash as in the case of an ordinary sale; if not, his inaction will simply amount to a voluntary forfeiture of such rights." "The transaction here constituted a sale of the coal conditioned upon its being removed within the period specified; and the court below was therefore in error."

Plummer v. Hillside Coal & Iron Co., 160, 483 (1894). An instrument in writing provided as follows: Samuel Callender doth lease and to farm-let to Thomas Meredith all the land that he now holds, and the lease is to continue for the term of one hundred years from this day. Possession of the leased premises shall extend only to their use as a coal field. The lessee shall have full power and possession to search for coal anywhere on the leased premises, in any manner he may think proper; to raise the coal, when found, from the beds; to

enter and carry away coal; and to sell the same for his own benefit and profit. He may occupy whatever land may be useful or necessary as coal yards, and in case it may prove necessary for securing the full enjoyment of the premises aforesaid as a coal field as aforesaid, then the said Samuel covenants and agrees to execute such further writings as counsel learned in the law may deem proper. The purchase-money or price of the coal was fixed at two hundred dollars. If the coal proved abundant and of a given thickness, then another hundred dollars was to be paid. In addition to this sum one dollar per annum was to be paid as a rent. Held, that the instrument contemplated a sale of the coal under the leased premises at a fixed price, to be increased one hundred dollars if the quantity of coal reached the proportion described in it.

Powell v. Lantzy, 173, 543 (1896). The owner of the mineral estate is neither a tenant in common nor a joint tenant with the owner of the surface; each has a separate estate.

A sale of unseated lands for taxes which were assessed before the severance of the title to the surface from that to the minerals, and a purchase of the whole by the owner of the surface, passes a good title to the whole as against the owner of the minerals. No relation of confidence exists between the owners of the different interests which gives rise to a duty which equity will enforce through the medium of a trust. Massot v. Moses, 3, 168 (1871). A. being seised in South Carolina. fee of a tract of land, in consideration of $2,000 granted to B. "the right and privilege of entering in or upon, by himself or by his agents, all or any part of said tract," for the purpose of searching for minerals or fossil substances, conducting mining operations to any extent he may deem advisable, and for working, removing, selling, and appropriating to his own use for the term of ten years from," etc., "all phosphates that may be found by any person or persons, or contained in any part of said tract," provided that B. "shall not at any one time during said term engage in working over one-third part" of said tract. "Such one-third part to be selected by him as often as he may desire." The deed also contained grants to B. of the right to cut and remove trees and wood, such trees and wood to remain the property of A., and of a general right of way, with the privilege of constructing railroads and other roads and machinery to be used in the transportation, manufacture, etc., of said substance, with the right to remove the same at the expiration of the term. Held, that this was a demise of the phosphate beds for the term of ten years, with the exclusive right of raising, selling, disposing of, and manufacturing all phosphates found during the term, and that B. had the right to divide his interest and convey part of it to others.

6

"The expression, that may be found by any person or persons, or contained in any part' of the land, distinguishes this case from Lord Mountjoy's Case, Litt. 165, and shows an intent to convey an exclusive right, and not one in common merely with the grantor; and this construction is aided by the fact that the consideration was an entire sum demandable at the delivery of the deed, and intended as compensation for the rights granted.

"Unopened veins or beds of minerals contained in and below the

surface of the soil may be demised as if they were separate pieces of land. A grant for a term of years for the exclusive right to search for, take, sell, and dispose of, to the grantee's use, all phosphates found during the term in a designated tract of land, is a demise of ore beds or veins of phosphate contained in the land."

Cowan v. Radford Iron Co., 83, 547 (1887). An agreeVirginia. ment by which the owner of land sells to another all the minerals under the land, with the usual mining rights and privileges, which are described to be the right to enter at any time with workmen, machinery, etc., and mine and carry away the coal, to use so much of the surface as is necessary for the operations, to erect the necessary buildings and construct roads, and to use water; and the grantee agrees to pay quarterly fifteen cents a ton for all iron ore so taken, and is given the privilege of removing his machinery, buildings, fixtures, and improvements at any time, creates a tenancy at will.1

Lee v. Bumgardner, 86, 315 (1889). A tract of land having been divided into separate parcels, No. 6 was conveyed to plaintiff, and No. 11, upon which was a furnace called Cotopaxi, to defendant. In the deed to No. 6 was this language: "Subject to the right of the owners of Cotopaxi furnace to raise ore from a bank or banks on lot No. 6." "To use the road leading to said ore bank or banks for hauling ore from said banks to said furnace, which rights were reserved at the time of the sale, and are hereby reserved to the owners of the said furnace." Held, that the iron ore under the land remained the property of the vendors, who had a corporeal interest therein. That interest being corporeal could not be appurtenant to the furnace property, but a conveyance by the vendor to the defendant subsequent to the bringing of this action to restrain mining by defendant was a defence thereto.

Lacy, J.: "The grant of the iron ore in the lands of the vendor is a grant of the substance, is a corporeal hereditament, and is exclusive. But the right to take ore from the lands of the vendor, being granted for a specific purpose or in a limited quantity, is an incorporeal hereditament and is not exclusive. So the conveyance of the right to take ore under the grantor's tract of land is a conveyance of the entire ownership of the ore in place beneath the grantor's land, and the minerals beneath the surface of land may be conveyed by deed distinct from the right to the surface, and is a corporeal hereditament that passes by deed."

Barksdale v. Parker's Adm'rs, 87, 141 (1890). In partition of real estate of a decedent, in order to effectuate a contract of the devisees, the commissioners were ordered not to include the land and mine already leased to certain parties, nor to take into consideration in estimating the value of the land any minerals on any part thereof, the mineral rights in the whole to be retained, and held as the undivided property of the devisees, subject to the further order of the court. The division having been made in accordance with this order, and the commissioners' report confirmed by the court, it was held that the devisees had an estate in fee in the minerals, a corporeal hereditament, and not an easement, and that the purchaser of the part of the land allotted to one of the devisees acquired no right to take the minerals.

1 See D. 175.

II. LEASE OF LAND WITH MINING RIGHTS.I

But a

As has been seen, a true leasehold interest in minerals in place cannot exist. If an estate in them passes, it is a fee. leasehold may, of course, be created in the land itself, and the nature of that estate is not changed by the addition, as an appurtenance, of the right to take minerals during the term. Such a lease raises an estate for years in the land. The tenant's possession of and property in the minerals are the same as his property and possession of the soil. But he has an appurtenant right to remove the minerals under which the absolute ownership of the minerals vests in him upon removal.2

Such leases are of course subject to the same rules as other leases of real estate, with the important exception that mining, even from unopened mines, is not waste, but the object, or one of the objects, of the tenancy.3

Illinois.

Gartside v. Outley, 58, 210 (1871). This was a lease or grant of land for an indefinite period, with leave and permission to take, under certain specified conditions, all the coal contained in the land, with a provision for forfeiture for non-compliance by lessee. Of this lease the court said it would expire by its own limitation when the coal became exhausted.

"The counsel does not define the nature of the estate which he insists is created, except to indicate that the grant is in the nature of a 'servitude,' to which the company's land was subject for an indefinite period. We think the fair construction to be given to that instrument is that it is in the nature of a lease, and creates only the relation of lessor and lessee. If, however, it can be said that it conveys the fee in the land, with a perpetual reservation of rent, we do not see how that view could aid the claim of the appellees."

Franklin Co. v. Coal Co., 43, 518 (1890). A lease of land Kansas. by the owner, who is a married man, and occupies the same with his family as a homestead, with the privilege of prospecting for gas, coal, oil, and other minerals at the lessee's pleasure, and to erect derricks, engine-houses, and buildings necessary in mining, etc., and of excavating mines, and piping oil and gas, is such an alienation of the homestead as, under sec. 9, art. 15, of the Constitution, requires the wife's consent.

Missouri.

Hobart v. Murray, 54 Ap. 249 (1893). See this case on

page 40.

1 See pp. 15 et seq.

* In Wisconsin, this subject is controlled by statute. Ann. Stats. 1889, sec. 1647, p. 987.

* See, however, Harlow v. Lake Superior Iron Co., 36 Mich. 105, ante, p. 16.