by it. It created between A. and B. the relations of co-owners of the mine, of joint proprietors of the business of operating it, and of principal and agent for the management and control of all matters in connection with the mine.

"Tenants in common or joint tenants of a mine or quarry may or may not be partners, and the mine or quarry itself may or may not be a part of the common stock. But it is highly inconvenient, if not altogether impossible, for co-owners of a mine or quarry to work it themselves without becoming partners, at least in the profits of the mine; and persons who work a mine or quarry in common are regarded rather as partners in trade than as mere tenants in common of land. The co-owners of mines may be partners, not only in the profits, but also in the mines themselves. The co-owners are then partners to all intents and purposes, and their mutual rights and obligations are determined by the law of partnership as distinct from the law of co-ownership.'

Judge v. Braswell, 13 Bush, 67 (1877). A partnership Kentucky. entered into for the purpose of engaging in mining busi

ness," said enterprise to embrace the purchase of the title to any coal or mining lands in fee, and the leasing of the same, as the said firm may determine," is a non-commercial partnership, and one partner has no power to purchase lands for and in the name of the firm.

Burgan v. Lyell, 2, 102 (1851). One of the members of Michigan. a partnership formed to prosecute the business of mining engaged the plaintiff to labor for the company in their mining operation. The company was bound by this contract.It is a matter of no legal moment whether some of the partners were dormant in fact, or whether they subsequently assented or dissented from the proceedings of those with whom they had intrusted the management of their company business; they would nevertheless be jointly liable to the plaintiff for his work."

Missouri.

Snyder v. Burnham, 77, 52 (1882). If two or more persons acquire a mining claim for the purpose of working the same, and actually engage in working the same, and share according to the interest of each the profits and expenses, the partnership relation subsists between them, although there is no express agreement to become partners or to share in the profits and losses.

"It may be concluded that when persons acquire interest in lands, apparently for the sole purpose of working the mines in them, they must be considered as entering into a commercial partnership." Rock well on Mines, 578.1

Nolan v. Lovelock, 1, 224 (1870).

Tenants in common

Montana. of mining ground, which they worked together, paying expenses out of the proceeds and dividing the residue, if any, are mining copartners.

One member of a mining partnership has authority to bind the firm for what is necessary and useful in the undertaking, such as the hiring of labor, unless there is an express agreement between them, of which the other contracting party had notice, that this power of binding each other should not exist.

1 In view of what has been said on pages 752, 758, ante, this statement is doubted.

66

Boucher v. Mulverhill, 1, 306 (1871). A mining regulation provided that no claim shall be recognized as legally held, unless the prior claimant has personally pre-empted the same, with the exception of three claims allowed the discoverers for their prospecting partners." "Prospecting partners" is not to be construed by the law of strict partnership. It includes those who furnish money and provisions, for which they are to receive interests in the mining ground that may be discovered.

Southmayd v. Southmayd, 4, 100 (1881). A rule peculiar to mining partnerships is that a partner may sell and convey his interest without working a dissolution, the purchaser becoming a member of the firm.

A mining partnership existed under a verbal agreement that one partner should control the interest of the other, and receive all the proceeds until he was paid the purchase price of the interest of the other. There was actual and constructive possession under this agreement. Held, though no money was paid down by the other party, there was such a part performance as to take the contract out of the Statute of Frauds, and specific performance would be enforced.

Harris v. Lloyd, 11, 390 (1891). "In the absence of a special contract, there is no relation of trust or confidence between tenants in common, who had been partners in the development of lode mining claims, which prevents one of them from demanding and receiving a higher sum for his interest in the property than is paid therefor to his co-owners."

In an action by former owners of a mining property to recover a share of a sum of money paid to a co-owner as additional consideration for the sale of the property, it was alleged that the plaintiffs and defendants had formed a mining partnership to develop the property, sharing expenses and profits in proportion to their respective interests. There was no allegation that there was a partnership for the purpose of selling the property; and it appeared that before the sale a settlement had been made between them, and there was no contract for further mining. Held, the plaintiffs could not recover, they and the defendants being tenants in common and nothing more.

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, the parties were not mining partners. "A mining partnership is formed by reason of the existence of certain facts described in the statute. Those facts are (1) That two or more persons shall own or acquire a mining claim for the purpose of working it, and extracting the minerals therefrom; that is to say, the relation arises from the ownership of the shares or interests in the mine. This is the first fact as a foundation for a mining partnership. (2) The second fact required to exist is, that such owners actually engage in working the mine." In this case the second fact is wanting.

Nevada.

Mallett v. Uncle Sam G. & S. M. Co., 1, 188 (1865). Where one tenant in common, after having become associated with copartners in the development of a claim, voluntarily leaves it in

the possession of his co-tenants, and refuses to bear his just proportion of the expenses incurred by them in the development of it, and afterwards brings an action in equity, relief will be refused until he has paid his full proportion of the expenses incurred in such development. Craw v. Wilson, 40 Pac. 1076 (1895). A partnership agreement to locate mining claims is within the Statute of Frauds, and where a claim has been located in the name of one partner under an oral agreement, no relief will be given to the other partners, unless partnership capital was employed in the acquisition of the claim. In the latter case, equitable relief will be given on the ground of a resulting trust.

Rhea v. Tathem, 1 Jones Eq. 290 (1854). A., B., North Carolina. C., and D. entered into a partnership to buy land from the State, and work the same for gold. A. and B. only gave bonds, with sureties, for the purchase money. All except A. left the State, abandoned the work for several years, gave him no aid, and allowed him to be pressed for the money. He, in good faith to relieve his sureties, surrendered his land to the State, and afterward, under another act, purchased a pre-emption to the same tract, which he sold for a sum of money. Held, neither B., C., and D., nor their assigns, could hold A. to account for this money.

Rhea v. Vannoy, 1 Jones Eq. 282 (1854). A., B., C., and D. entered into a written agreement to purchase lands and mine them as partners. One of the provisions of the agreement was that such disposition was to be made of the property as the majority might deem advisable. Land was purchased under statutory sales, the legal title remaining in the State. The adventure did not pay, and was deserted by B., C., and D., who left the State, insolvent. A., to relieve his sureties, and avoid further liability for the unpaid purchase money, disposed of the lands for the best price obtainable. Held: 1. The abandonment of B., C., and D. superseded the contract for the concurrence of a majority; 2. None of them had any equity against A.'s disposition of the property, especially as against a purchaser at a fair price without notice. All that they could ask would be an account of the money received by A., and of any rents or profits arising out of the adventure.

Babcock v. Stewart, 58, 179 (1868). The manner in Pennsylvania. which oil interests are sold, divided and subdivided while work is going on, does not affect the application of the rules as to the liability of incoming partners on contracts made before they became partners in a firm whose purpose is the mining of oil.

Grubb's Ap., 66, 117 (1870) H. B. Grubb, owning one-sixth of the ore banks, died, and in the partition of his real estate, in 1836, it, including his interest in the ore banks, became the joint property of his two sons, E. and C. They entered into a partnership to mine ore, and manufacture and sell iron. The purchase money for the land was to be paid out of the ore dug. The land was not conveyed to the firm, but was entered on the books and carried in the firm accounts. Held, not to have been brought into the partnership, and that E. and C. should account to one another, not as partners, but as tenants in common.

Dunham v. Loverock, 158, 197 (1893). Tenants in common may become partners, like other persons, where they agree to assume that relation towards each other; but the law will not create the relation

for them as the consequence of a course of conduct and dealing natu rally referable to the relation already existing between them, which makes such a course of conduct to their common advantage.

An agreement between two tenants in common of an oil lease to drill an additional well on the leasehold, at the common cost of the co-tenants, will not, as between themselves, create a partnership. In the absence of a distinct agreement between them that their relations to the property and to each other should be changed, the presumption is that the old relation continued, and that they treated with each other as owners of separate interests in an undivided lease.

Butler Savings Bank v. Osborne, 159, 10 (1893). Tenants in common engaged in the improvement or development of the common property will be presumed, in the absence of proof of a contract of partnership, to hold the same relation to each other during such improvement or development as before it began. As to third persons, they may subject themselves to liability as partners by a course of dealing or by their acts and declarations, but as to each other their relation depends on their title, until by their agreement with each other they change it.

When tenants in common of an oil lease agree to carry on operations upon their land, each contributing towards the expenses in proportion to his respective interest in the land, they will be considered, with respect both to themselves and third persons, as the ordinary owners of land, working their respective shares of the wells, responsible only for their own acts, subject to no laws of partnership whatever, and possessing distinct rights in the property.

Randall v. Merideth, 76, 669 (1890). It has been generTexas. ally held that mining partnerships are non-trading partnerships, and that the individual members of the firm are without power. to borrow money on the credit of the firm, unless the power be given otherwise than by implication from the ordinary nature of the business.

IN few of the relations of master and servant has the legislature so prescribed the manner of the performance of the obligations arising from the contract, and limited the capacity of the weaker party to contract to his own injury, as in the matter of the payment of the wages of miners. As a class, these men seem to be regarded by the law maker as particularly obnoxious to oppression and injury by their employers. The statutes looking toward their protection in this regard seek to accomplish this end by three means. First, by prescribing in what payment must be made, or by forbidding payment in certain enumerated articles or obligations. Second, by prescribing the time when payment of wages must be made.2 Third, by prescribing regulations and inspection of the weighing of coal in those mines where weight is the measure of wages.

8

1 Indiana, Horner's Rev. Stats. 1896, sec. 3878 f, g; Iowa, Laws 1888, ch. 55, secs. 1, 2; Rev. Code 1888, tit. xi., ch. 8, pp. 595-6; Missouri, Gen. Stats. 1889, secs. 7058-60; New Mexico, Act Feb. 17, 1897, ch. 11, p. 27; Pennsylvania, Act June 29, 1881, P. L. 147; Act May 20, 1891, P. L 96; Act June 9, 1891, P. L. 256; West Virginia, App. Code 1891, p. 1002, pars. 1, 2; Wyoming, Laws 1890, ch. 82, secs.

1-4.

2 Indiana, Horner's Rev. Stats. 1896, sec. 3878 e; Iowa, Act April 14, 1894, p. 95; Kansas, Act March 10, 1893, p. 270;

Maryland, Act April 4, 1896, p. 221; Missouri, Gen. Stats. 1889, sec. 7059; Act April 20, 1893, p. 183; Ohio, Act May 4, 1891, 88 O. L. 553; New York, Laws 1895, ch. 791, p. 556; Pennsylvania, Act May 20, 1891, P. L. 96; Wyoming, Laws 1890-91, ch. 82, secs. 1-4.

8 Alabama, Act Dec. 17, 1894, p. 245; Illinois, Hurd's Rev. Stats. 1895, ch. 93, secs. 20-25; Indiana, Horner's Rev. Stats. 1896, sec. 5480 a, b; Iowa, Laws of 1888, chs. 53, 54; Rev. Code 1888, tit. xi., ch. 8, pp. 594-5; Kansas, Act March 13, 1893, p. 271; Kentucky, Barb. & Car. Stats