IV. LICENSES TO MINE.

A grant of a privilege of mining which, if in writing, would constitute an incorporeal hereditament, if made by parol constitutes a license, a mere personal privilege which is unassignable, is concurrent with the right of the licensor to mine, is revocable at the will of the licensor, and vests no title in the minerals until they are severed by the acts of the licensee.

It will be noticed that incorporeal rights to mine are sometimes spoken of as liberties and licenses, as in Grubb v. Bayard. The term seems to be used (in Bainbridge, for instance) to cover all rights to mine which create no estate in the minerals in place, just as the term "mining lease" has a generic sense in which it includes not only true leases, but all estates and rights in or to minerals.

The broad distinction of the classes within the genus license is this:

When a right to minerals which is not exclusive of the grantor is created by deed, it is an incorporeal hereditament; when by parol, it is a true license. The one creates an estate in lands, the other a personal privilege. The confusion arising between the broad and narrow uses of the word "license" has occasioned some anomalous decisions; and in many States, indeed, it may be doubted whether any distinction remains between an incorporeal hereditament and a license to mine. There is, however, the distinction in principle, which must be insisted on if we are to preserve clearness in the treatment of the cases.

A license, however, may also be created by an instrument in writing whose terms show an intention simply to confer a personal privilege to take minerals as land.

In Missouri, indeed, it is held that a license to mine being something more than a mere personal privilege to do an act upon land, passes an interest in lands within the Statute of Frauds. It follows that such an interest can only be created or conveyed by a written instrument, and an attempt to do so by parol amounts only to an estate at will. Practically this latter does not at all differ from a true license.1

A license to take minerals has all the properties of any other

1 The subject now is regulated in Missouri by statute. Gen. Stats. 1889, secs.

7034-7.

license to do a particular act or series of acts on land of the licensor. It is a personal privilege which is unassignable, is terminated by the death of the licensee, or by the conveyance (unless colorable), descent, or devise of the title of the licensor. It is revocable until some act is done or some expenditures made thereunder. In some States it is even then revocable.1

In Iowa, where the licensee has made any expenditure under the license, the revocation of such a license cannot be made at any time absolutely, but must be preceded by six months' notice to the licensee, that being the notice to quit, to which a tenant at will is entitled at common law. As an alternative of this notice, however, the licensor may refund to the licensee such expenditure as he had made upon the land. This analogy of licenses to estates at will has also been drawn in Missouri, as was seen above. In Iowa, moreover, the case of Beatty v. Gregory goes to the length of deciding a license to be a subsisting valid interest in real property for which ejectment will lie. This arose from a failure of the court to observe the distinction elsewhere recognized between a corporeal interest in the minerals in land and the grant of an incorporeal privilege to mine them.2

United States.

Williams v. Morrison, 32 Fed. 177 (1887), c. c. E. D. Mo. An oral license or permission to take possession of a granite quarry, and work it for two years, paying therefor $1.50 per thousand for all granite blocks taken out ready for shipment, is revocable at any time by licensor's giving licensees personal notice of its termination and notifying them to leave the premises. All stone taken out previous to such revocation is the property of licensees, but they are not entitled to any stone taken out subsequent thereto.

Wheeler v. West, 71, 126 (1886). A verbal agreement California. by which defendants were to enter and work a certain portion of plaintiff's mine if they saw fit, and to exercise their own discretion whether they worked it or not, paying the plaintiff one-fourth of the gross yield of gold, did not create the relation of landlord and tenant. "Their right under such a contract was not in and to the realty, but to the gold as personalty when it should be severed from the land. Had it been in writing it would have given to the defendant merely an incorporeal hereditament, but being verbal it operated as a license to them to dig and mine for gold within the specified limits,

1 In Wisconsin it is provided by statute that a license to mine shall not be revocable after a valuable discovery or prospect has been struck by the licensee. Ann. Stats. 1889, sec. 1647, p. 987.

2 In addition to cases here cited, see cases collected below under Div. V., B., this chapter.

which license protected them from a charge of trespass while in force, but was liable to revocation at the will of the licensors." "The licensee has no permanent interest, property, or estate in the land itself, but only in the proceeds, not as realty, but as personal property; and his possession, like that of an individual under a contract with the owner to cut timber or harvest a crop of potatoes thereon for a share of the proceeds, is the possession of the owner."

Omaha & Grant S. & R. Co. v. Tabor, 13, 41 (1889). Colorado. A license to dig ore given by one tenant in common extends only to his interest in the mine. Evidence that a mine owner being informed that persons had entered on a mining claim conflicting with his, under order of court, and were taking his ore, consented that another person should join them, does not establish a license as to those already engaged in mining there.

Kamphouse v. Gaffner, 73, 453 (1874). A parol license Illinois. is a protection against an action for trespass before its revocation. It is revocable at any time at the will of the licensor, and a subsequent conveyance or leasing by him works a revocation. Such a license is only personal, and lasts only so long as the land belongs to the grantor, or so long as he permits its exercise. It is irrevocable only when it is fully executed and not depending on continuous acts. An expenditure incurred or valuable consideration given will not avail to make it less revocable.

One who has a parol license to mine for lead on his licensor's land, and enters upon the land, discovers the crevice or range in which the lead is, opens it and runs a drift, expending a large amount of money, does not thereby acquire a right to continue to mine as against the owner or his lessee.

Manning v. Frazier, 96, 279 (1880). A license to mine, remove, and sell coal at a certain price per ton is not assignable.

Iowa.

Bush v.

Sullivan, 3 Greene, 344 (1851). Under a parol license to work upon and prove mineral land for a share of the mineral raised, where the licensee has made an expenditure in sinking a shaft, mining drifts, etc., the license cannot be revoked without refunding the expenditure, or giving the licensee at least six months' notice, that being the notice to quit to which a tenant at will is by the common law entitled, and being given as an alternative to refunding expenditure, in order to give time to make the improvements available.

Although such parol license is within the Statute of Frauds, still, when connected with such improvements to prove the ground, it is voidable only upon such compensation or notice.

Beatty v. Gregory, 17, 109 (1864). A parol license to enter upon mineral lands and mine the same for a specified share of the mineral raised, for an indefinite term, under which the licensee has entered and expended labor and money in sinking shafts, running drifts, procuring machinery, and other preparations for mining, can be terminated by the licensor only by giving the licensee compensation for such expenditure, or the notice necessary to terminate a tenancy at will. The licensee has a "valid subsisting interest in real property and a right to the immediate recovery thereof," and under the statute the licensee may assert his right of possession against the licensor or his subsequent lessee with notice, by ejectment.

Upton v. Brazier, 17, 153 (1864). A parol license to mine upon a certain tract for a share of the minerals raised, will not, unless clearly expressed or necessarily implied, be held to be exclusive.

Such a license, unaccompanied by actual possession or the expenditure of money or labor thereunder, may be revoked or countermanded by the licensor. And this right of revocation may be exercised so far as it concerns a particular range or lode on the land concerning which the licensee has made no expenditure.

Anderson v. Simpson, 21, 399 (1866). A parol license to mine, under which licensee entered into possession, and which is also established by the evidence of the licensor, is exempted from the application of the Statute of Frauds. Such exemption is gained by a parol license to mine accompanied by possession, but the possession to be available must be ostensibly and actually taken under and by virtue of the license. It must have the actual or implied consent of the owner.

Harkness v. Burton, 39, 101 (1874). A parol license or lease of mining lands is valid, and can be terminated only by compensation to the licensee or the notice necessary to terminate a tenancy at will. Such license is good against a subsequent lessee or licensee with notice; such notice is to be inferred from the fact that the licensee conducted his mining operations within sight of the place where the subsequent lessee was at work.

A license to remove mineral from land occupied as a homestead, when its enjoyment for the uses of a homestead is not thereby impaired, may be given by the husband without the assent of the wife. If her consent were necessary to give validity to a parol license it would be presumed, if she had full knowledge of the work done or expenses incurred thereunder, and made no objection.

Burry v. Worcester, 143, 476 (1887). A license to Massachusetts. enter upon land and take away gravel is revoked by an unqualified grant of the land. But where the conveyance is colorable, as a conveyance to a son or wife, and the possession and control remains in the licensor, and the licensee enters upon the land and continues to take the gravel unmolested, an action therefor may be maintained by licensor.

Missouri.

Desloge v. Pearce, 38, 588 (1866). "A parol license or mere verbal privilege carries no interest in the land, and is a mere authority or privilege to do some particular acts upon the land of another. But a license to work mines is quite a different thing. It confers not only a right to enter and occupy, but to commit waste and carry away a part of the realty itself, and it is therefore an interest in lands, tenements, and hereditaments which is clearly within the Statute of Frauds, and must, in order to be effectual to give any permanent inheritable interest in itself, or any right to a continued and perpetual possession, be put in writing, and signed by the parties, or be given by deed; otherwise it can have no greater force or effect than to create an estate at will only, either at law or in equity."

"A parol license cannot be made the foundation of any right or interest in real estate, or to the future continuous possession thereof, nor to the continuation of the privilege beyond the will of the landIt is essentially countermandable or revocable at will."

owner.

Such a licensee is not a trespasser, and is protected from liability for what he does under the privilege, and for not replacing or restoring what has been changed under the privilege.

He may remove his fixtures and machinery when the license is terminated by notice.

That a licensee to mine had not worked the mine long enough to reward him for labor and expenditure will not prevent a revocation of the license.

Lunsford v. La Motte Lead Co., 54, 426 (1873). The proprietors of Mine La Motte, a large tract of mining land, promulgated rules and regulations by which those who desired to mine on the land, by signing the same acquired the right to do so under the provisions of the rules and regulations for the term of ten years from August, 1838. At the expiration of this term the agent of the proprietors made an agreement called "Register No. 3," by which miners might continue to mine upon subscribing this register or agreement upon the conditions therein stated. One of these conditions was that the agreement was to be subject to, and revocable by, the future actions of the proprietors.

Where the miner, after notice to cease mining and yield up possession of the land used and mined by him, resumed work and extracted mineral, without the consent of the proprietor, he was a wrongdoer, and acquired no title to the mineral raised.

Chynowitch v. Granby Mining & Smelting Co., 74, 173 (1881). Where an owner of mining lands complies with requirements of sec. 6441, Rev. Stat., and keeps posted in a conspicuous place, etc., a statement of the terms, conditions, and requirements upon which his land may be mined, among which were provisions that no right, title, or interest to the land or minerals should be acquired or owned by the persons mining, and that the lead delivered or money paid to the miners was not to be considered as the price of the ore, but compensation for labor and services, and, upon a violation thereof, or a failure to carry out such conditions, etc., the miner should forfeit all rights, and the owner might resume possession without notice to quit or action taken, the miner works under a license revocable on condition broken, and has no such interest in the land as will enable him to maintain an action for unlawful detainer and recovery of possession. The evidence showed that the miner had broken the condition and been ordered and then compelled to quit.

Nega v. Barber Asphalt Paving Co., 17 Ap. 294 (1885). An agreement between a land-owner and a paving company gave the latter the right to quarry and remove from the land such stones as might be used in paving certain named streets, the company agreeing to pay "$100 per month, commencing July 16, while they are taking stone from this quarry."

The company paid two months' rent, but never quarried any stone. They were held not liable for any further sum.

This agreement was not a lease, but a mere license to get out certain minerals which did not displace the owner's general possession. Garvey v. Gunther, 51 Ap. 545 (1892). Rules posted in accordance with Rev. Stat. 1889, sec. 7034, provided for forfeiture on failure