Caldwell v. Fulton, 31 Penn. 475; Clement v. Youngman, 40 Id. 341, and cases cited on first point.

III. It is contended that the grant to Moses, though a license, was irrevocable and assignable, but we insist that the contract between Moses and Bradley and Coe was not an assignment of an existing interest, but the creation of a new interest; a license from Moses to Bradley and Coe: Tayl., L. and T., $$ 426, 429, 431.

IV. That the incorporeal hereditament granted to Moses, though assignable, was indivisible, and by attempting to sever it Moses has destroyed it. See cases cited above, and Leyman v. Abeel, 16 Johns. 30; Van Rensselaer v. Radcliff, 10 Wend. 639.

Cases were also cited upon the plaintiff's second and third grounds of appeal, which are not given, as those grounds were not considered by the court.

BUIST, for defendant Moses.-The deed of 24th April, 1868, is substantially a lease for ten years of the minerals in the land. It is a grant of a corporeal right and can not be properly construed to be the grant of a mere license or incorporeal hereditament: Crabbe's Dig., Real Property, § 1281; Jackson v. Harsen, 7 Cow. 326; Jackson v. Kisselbrack, 10 Johns. 336; Shep. Touchstone, 86; 3 Bac. Abr. 363; Moore v. Fletcher, 16 Me. 63; Crosby v. Bradley, 20 Id. 61; Bac. Abr., Leases K; 2 Washb. on Real Prop. 345; 1 Id. 12, 270; Stewart v. Garnett, 3 Sim. 398; Legard v. Hodges, 3 Bro. Ch. 441; Co. Litt. 46; Parker v. Plummer, Cro. Eliz. 190; Queen v. Winter, 2 Salk. 588; Paramour v. Yardley, Plow. 539; Throckmerton v. Tracy, Id. 145; Col. on Mines, 5; Stoughton v. Leigh, 1 Taunt. 403; Adam v. Briggs Iron Co., 7 Cush. 361; Yale on Min. Claims and Wat. Rights, 215; Cary v Daniels, 5 Metc. 236; Seaman v. Vawdrey, 16 Ves. 390; 1 W. Bl. 482; Muskett v. Hill, 5 Bing. N. C. 694; New Jersey Zinc Co. v. New Jersey Frank. Co., 13 N. J. Eq. 322; U. S. v. Gratiot, 14 Pet. 526. He also cited the Pennsylvania cases cited on the other side at great length.

Moses had the right to divide his interest and assign part of it to others: 2 Story's Eq., $$ 1039, 1040; 12 Peters, Tit. Leases; 2 Story's Eq. $$ 1050, 1051. He also cited Ricketts v. Bennett, 4 Com. B. 686; Dickinson v. Valpy, 10 B. & C. 128; Hawtayne v. Bourne, 7 M. & W. 595.

MEMMINGER and CORBIN, for defendants.

WILLARD, J.

In the decision below and in the argument at the bar, an important feature of this case has not received the attention due to the importance of its bearing. The line of argument pursued assumes that the question whether the defendant Moses acquired under the grant of Massot an exclusive right as against the grantor, to the minerals contained within the premises described for the period of ten years, is to be decided by first determining whether the thing granted was in its nature corporeal or incorporeal. It is contended. that the grant created at most either a mere license or an incorporeal hereditament, and authorities are cited to show that in such cases the grant does not include the right of the grantor to exercise, concurrently, a similar right to that conferred by his grant or license. The objection to this line of argument is that it lays too great stress on the technical import of the words of conveyance and gives too little attention. to the actual intent of the parties as evinced by the entire instrument. The true inquiry is, what, from the construction of the whole instrument, was the nature of the right, power or property intended by the parties to be vested in the grantee? Having ascertained from this source the nature of the thing granted, it will not be dif ficult to ascertain whether it is corporeal or incorporeal, nor to find the technical terms appropriate to describe such intent. The instrument in question is, in form, a deed signed, sealed and witnessed as such. Massot, in consideration of $2,000, grants, sells and conveys to Moses, his heirs, executors, administrators and assigns, "the right and privilege of entering in and upon, by himself or his agents, all or any part of the land hereinafter described, for the purpose of searching for mineral and fossil substances, conducting mining operations to any extent the said party of the second part may deem advisable, and for working, removing, selling, and, as the property of the party of the second part, to use and appropriate for the term of ten years from the date of these presents all organic or inorganic minerals, rocks, fossils, marl, or so-called phos

phates that may be found on, by any person or persons, or contained in any part of all that plantation or tract of land," etc. Moses is further to have the right to cut and remove trees, wood and timber, when he shall deem it advisable and advantageous; such trees, wood and timber to remain the property of Massot, who is to have the disposal and profit thereof.

The deed contains the following proviso: "Provided, further, that the party of the second part (Moses) shall not, at any one time during the aforesaid term of ten years, engage in working over one third part of the said tract, the third to be worked to be selected by the party of the second part, and said selection to be made as often as the party of the second part may desire." The deed further conveys, for the like period, a general right of way, with the privilege of constructing railroads and other roads, and machinery to be used in the extraction, preparation, manufacture and transportation of the organic and inorganic substances in question, with the right to remove the same at the expiration of the term aforesaid. What distinguishes this grant from that in Lord Mountjoy's Case, Co. Litt. 165, and in all the other cases relied on as decisive against the exclusive nature of the grant, is contained in the expression "that may be found on, by any person or persons, or contained in any part," etc. The term “any person" must be regarded as including the grantor, so that if the grantor, in an attempt to exercise the same right as that conferred, should find any such substances upon the premises described, such act of finding would complete the title of the grantee or his assigns to the substances so found under the express terms of the grant. It might, perhaps, be said that this applies only to substances "found on," but not those "contained in" the premises. The construction can not prevail, for it would contravene the general intent of the instrument. It is clear that, as to some part of the minerals, the right of the grantor is excluded, and to that extent something more than a right in the nature of common is conveyed. How far, then, does this exclusion extend? It is evident that the parties did not intend to make a distinction, as to the character of the grantee's title, between the minerals lying on the surface of the ground and those contained within it. Such

a distinction would be inconvenient and senseless. If, then, it was intended that the grantee should have the same right in respect to the one class as to the other, the particular expression under consideration must be regarded as characterizing the grantee's right, as to the whole, as exclusive of the grantor, and all other persons.

This view is aided by the fact that the consideration of the deed was an entire sum of money, demandable absolutely under the deed, and which may be assumed to include a valuation, fixed by the parties, on all minerals that the grantee was authorized to remove from the premises, and might, by possibility, remove therefrom during the term of ten years, and by the further fact that the deed, by its terms, professed to sell and convey the material itself, as well as the right to search for and take it.

It is not necessary to rest this case upon the whole ground taken in Caldwell v. Fulton, 31 Penn. 475. In that case the grant was held to exclude the grantor on the ground that the consideration, being an entire sum, paid for the right conferred, evidenced an intent to sell the whole mineral content as such. Independent of the character of the consideration, the language of the grant in Caldwell v. Fulton, was substantially the same as that in Lord Mountjoy's Case. The opinion in Caldwell v. Fulton does not seek to unsettle the authority of Lord Mountjoy's Case, but finds grounds of distinguishing the cases in the fact that different inferences are to be drawn, as to the intended exclusiveness of the grant, from the respective considerations in the two grants.

In the case before this court, the construction of the grant does not depend wholly on the character of the consideration, as we have already seen. It is, however, a circumstance in the case, and therefore it is in place to inquire whether the fact that the consideration is an entire sum demandable at the delivery of the deed, and intended as compensation for the right granted, tends to show an intent to convey an exclusive interest.

Apart from the limitation of ten years, if the subject-matter of the grant had been personal property instead of land, it would have passed an exclusive right of property to the grantee.

A bill of sale, for a valuable consideration paid, of all the goods of a certain kind in a certain warehouse, or all the quarried stone or mined ores in a certain field, would show an intent to transfer a perfect title. Should the vendor, at the same time, confer a license upon the purchaser to enter upon his premises, and to search for and remove the property, its effect would be to enlarge still further the right of the purchaser.

Although the subject-matter of the contract be land, still, if capable of severance, so as to become personal property, the parties are not precluded by any rule of law from treating it, in its unsevered condition, as personalty, and transferring title accordingly: Clark v. Way, 11 Rich. 624.

These propositions are not disputed by Lord Mountjoy's Case, nor by any of the English or American cases following its authority, but, on the other hand, are supported by many cases of undoubted authority.

To all such contracts and grants, whether relating to realty or personalty, the test that has been applied is the intent of the parties. The difference between the two cases is this: that certain words sufficient to manifest such intent, in the case of personalty, are not deemed sufficient for that purpose in the case of realty. The proper conclusion from these cases would seem to be that grants of a right to enter the lands of the grantor and sever therefrom and appropriate its products or mineral contents, are subject to a presumption not applicable to the case of a sale of personalty; that the grantor did not intend to exclude his own proprietary right to a concurrent enjoyment with the licensee of the power granted. If this view is correct, any words evidencing an intent on the part of the grantor to part with his proprietary rights over the subject-matter to which the grant relates, would rebut such presumption. What force, then, should be given to words tending to evidence an intent on the part of the grantor to exclude himself from the enjoyment concurrently with the grantee of the right conferred? So far as the existence of such a presumption bears on the question, the obvious answer is that the same force should be given to the expressions employed that would be given had the subject-matter been other than realty. The presumption, indeed, demands some