tiffs' land, and to do all acts that might be reasonably necessary to be done to effect the purpose of the decree. The viewers actually obtained access to the drifts by a new excavation made from a shaft of the plaintiffs on the plaintiffs' ground. Held, that if this were the cheaper mode of access, and reasonably necessary, it was within the terms of the order, and the expenses of the view, $4,841.07, which had been advanced by plaintiffs, were allowed with interest, such sum including an allowance for the use of plaintiffs' shaft and machinery in making the excavation. "Courts of law have power to allow the reasonable expenses of surveys and views in proper cases, and the fee bill does not apply to the expense of such proceedings. Mines are so situated that special and peculiar proceedings are sometimes necessary in order to attain the reasonable ends of justice in regard to the underground passages by which access to them may be obtained by trespassers."

St. Louis M. & M. Co. v. Montana Co., Ltd., 9, 288

Montana. (1890), affirmed in Montana Co. v. St. Louis Co., 152 U. S. 160, ante. Code Civ. Proc. 376 is not unconstitutional as being unjust and oppressive.

Blake, C. J.: "The source [of the statute] is unquestionably found in the chancery practice of England. .

"In this State the legislative department has endowed the chancery practice involved in this hearing with the form of law. We are not called upon to decide that the District Courts of the State may make the order complained of, in the absence of any requirement of the Code of Civil Procedure. We can vindicate with absolute certainty the existence of the right to make an order for the inspection and survey of a lode mining claim, where the appropriate steps have been taken by interested parties. .. There is not an assertion or suggestion by any jurist that rights of property are impaired or transgressed by the making of the orders for an inspection and survey."

The order may be issued without requiring bond and before suit. Blue Bird M. Co. v. Murray, 9, 468 (1890). Plaintiff, in following its vein on the dip and beyond the side lines of its claim, worked within the limits of defendant's claim. An injunction had been granted restraining defendant from working upon plaintiff's mining claim, and afterwards, on defendant's motion, an order was made, permitting him to prosecute certain specified work within his own boundaries, under certain restrictions and the control of the court, for the purpose of obtaining evidence for the trial of the case, and the ascertaintment and determination of the rights of the parties, and the continuity and identity of the veins, and to prosecute development and other work pending litigation. Held, this order was within the powers of a court of equity, and being in effect an order for an inspection and survey for the discovery of the truth, was not an abuse of judicial discretion.

Silver M. Co. v. Fall; 6, 116 (1870). Where it appeared Nevada. that plaintiff owned the Arizona Silver Ledge south of a cer

tain line, and defendant owned north of the line, and suit was brought to recover a deposit and prevent defendant working south of the line, on the theory that it was on the ledge, which defendant denied, it was error for the court to charge that the plaintiff must, in order to recover. establish his theory conclusively, and not merely by a preponderance of

evidence. There is nothing in section 160 of the Practice Act (which authorizes a delay in mining cases for the purpose of allowing developments to be made) to show that it was intended to make actual development the only or even the best evidence.

Thomas Iron Co. v. Allentown Mining Co., 28 Eq. New Jersey. 77 (1877). Where the owner of mineral lands suspects that the adjoining owner has mined over the line, and has taken minerals from his land, and refuses to allow him to enter the mine to make an inspection of the fact, equity will grant an order of inspection.

CHAPTER XXIV.

JOINT OWNERSHIP OF MINES.

I. Rights and Relations of Joint
Owners.

II. Partition of Mines.
III. Mining Partnerships.

I. RIGHTS AND RELATIONS OF JOINT OWNERS.1

EACH of the joint owners of minerals in place may mine them without the consent of the others; he may occupy and use the common property for the purpose contemplated by all, and it is no valid objection that his use is consumption. His mining is not waste. But he must account to his co-tenant for whatever mineral he extracts, in which account he may deduct the cost of extraction. He is only entitled to his proportion of whatever is mined, and may not claim to retain all that he has himself taken out, on the ground that it is no more than his proportion of all the mineral in the mine.

One joint owner who works a mine cannot maintain an action against his co-owners for their share of the expense of so doing, in the absence of an express or implied contract on their part to pay. He is confined to his remedy by account.2

The owner of an undivided interest in a mine is entitled to the possession of the whole as against one who has no title to any portion of it; but he may not exclude his co-tenant, even though he have the greater interest, and if he is unable to respond in damages, he may be enjoined from holding possession of and working

the mine.

Any act of one tenant in common in reference to the joint estate will accrue to the benefit of all. Consequently, if one of several joint owners of a mining claim obtains a patent therefor, he will be treated as a trustee of the shares of his co-owners.

1 See also Chap. VI., Div. II., C. 2 See Pennsylvania, Act April 25, 1850, P. L. 573; McGowan v. Bailey, 179 Pa.

470 (1897); and also Pennsylvania, Act May 6, 1891, P. L. 41.

It will be observed that the rights and relations of joint owners of minerals in place or of mines are practically the same as those of the joint owners of land in which are deposits of minerals. The reader is referred to the chapter in which the latter subject is treated, and which should be read in connection with this chapter. The rights of co-owners of mining claims in regard to expenditure for assessment work which are dependent upon statute, are set out in Rev. Stats. 2324, and have been already treated of.$

Waring v. Crow, 11, 366 (1858 In an action of California. ejectment to recover an undivided interest in a mining claim, it is not necessary to make parties defendants who are in possession of such claim, holding other undivided interests, and who claim no right to the interest sued for.

As the possession of one tenant in common is the possession of all, the mere fact that one such tenant or partner goes away and remains absent, leaving his associates in possession, creates no presumption of abandonment; nor does his refusal or delay to pay his share of the expenses of the business create a forfeiture. The passive acquiescence of the other partners or tenants in common in a sale of the interest of one of their number by a party having no title cannot confer any upon the vendee.

Reed v Spicer, 27, 57 (1864). H. and P. were tenants in common of a ditch; H. conveyed all his interest to defendant, and P. conveyed all his to plaintiff by a deed of later date. Held, neither could be considered to have conveyed against the other's will, and the grantees became tenants in common.

Goller v. Fett, 30, 481 (1866). In an action for damages against a co-tenant for removing gold, the expense of digging the gold-bearing earth and carrying it to the mouth of the tunnel, where it was washed, should be deducted from the amount of gold which was plaintiff's share.

Melton v. Lambard, 51, 258 (1870). The owner of an undivided interest in a mine is entitled to the possession of the whole mine, as against one who has no title to any portion of it.

Me Cord v. Mining Co., 64, 184 (1883). The extracting of minerals by one of several tenants in common of a mining claim, without the consent or permission of the others, is not waste within the meaning of sec. 732, Code of Civ. Proc. The tenant in common of a mine may occupy it for the purpose contemplated by all, even though a portion of the ore or soil be removed. Each tenant has a right to use the mine, and so long as an estate is used according to its nature, it is no valid objection that the use is consumption. The mining lands are disposed of by the United States and acquired, for the purpose of mining, and the application of them to that purpose by the tenant in common cannot be waste. The other tenants in common would, however, in the proper action, be entitled to an accounting by the tenant who was working the mine.

Chap. I., Div. IV.

2 Page 265, ante.

But see Rev. Stats. 2324.

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.

Franklin Min. Co. v. O'Brien, 22, 129 (1896). When one tenant in common, of a mining claim purchases a senior conflicting location, the purchase inures to the benefit of bis 30-tenant, so that he is entitled to his share in the ground in conflict.

Barnum v. 1arion, 25, 137 (1856). Tenants in Connecticut. common. who a essees from the different owners of undivided portions of certain 6 beds, are liable to account to one another for ore mined. It is not a defence to such an action that the amount mined by defendant was not more than his proportion of the ore in the ground. A co-tenant cwns only his propertion of what he takes out, and must account for the balance to his co-tenants. Nor is it a good defence that he has accounted to his landlord for all that he had taken out. If he accounted for more than his proportion, he did so in his own wrong.

Marsh v. Holley, 42, 458 (1875). 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 upon 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.

Montana.

Brundy v. Mayfield, 15, 201 (1895). Where part of the co-owners of a claim apply for a patent to themselves, the excluded co-owner need not file an adverse claim. On obtaining the patent, they become trustees for him. Co-tenants stand in a relation of confidence to each other, and neither will be permitted to act in hostility to the other in reference to the joint estate.

Anaconda C. M. Co. v. Butte & Boston M. Co., 17, 519 (1896). Plaintiffs owned a three-fourths and defendants a one-fourth interest in W. B. claim. Plaintiffs, on the allegation that defendants had. by deep underground workings, extracted $300,000 worth of ore, obtained a preliminary injunction against further mining.

Held: 1. The parties were not mining partners. 2. It is not waste for a tenant in common to take ore from the common property in a skilful, careful, and miner-like manner. 3. The plaintiff, however, was entitled to the injunction under sec. 592, Code Civ. Proc. 1895, by which "If any person shall assume and exercise exclusive ownership over, or take away, destroy, lessen in value, or otherwise injure or abuse any property held in joint tenancy or tenancy in common, the party aggrieved shall have his action for the injury in the same manner as he would have if such joint tenancy or tenancy in common did not exist." North Pennsylvania Coal Co. v. Snowden, 42, 488 Pennsylvania. (1862). A court of equity has no jurisdiction of an

action founded on a legal title, brought by one tenant in common against an alleged co-tenant, to obtain possession and enjoyment of mining rights, whether corporeal or incorporele.