1979 metal is, then the base metal together with the gold or silver in it, belongs by prerogative to the crown. Thus, it was decided that a large quantity of copper from a copper mine belongs to the crown because it contained some gold and silver." Subsequently, it seemed to have been considered that if the value of the gold or silver, when extracted from the base metal was worth more than the cost of refining it, the mine was a royal mine and the baser metal as well as the gold or silver belong to the crown. Otherwise, if the cost of extracting the gold or silver from the base metal were more than the worth of the precious metal extracted, the mine is not a royal mine and does not belong to the crown. 26. During the reign of William and Mary, a statute was passed which provides that in England, Wales, and Berwick-on-Tweed, mines containing ore of copper, tin, iron, or lead shall belong to the owner of the mine, even though it contain gold or silver, provided, however, that the crown can elect within thirty days after the ore has been raised from the mine and laid upon the bank, to take the same by paying a certain fixed price per ton of washed, made clean, and merchantable ore." This act by its terms only applies to England, Wales, and Berwick-on-Tweed; hence, the law as to royal mines in other parts of the British Empire, as in Ireland, is not affected. Moreover, where ore containing gold and silver is not copper, tin, iron, or lead ore, the statute does not apply, and the old law with reference to royal mines still holds good. Nor does that statute apply where the mine is worked as a gold mine, even though it contain either copper, tin, lead, or iron, but in such small quantities as to make it valueless for the purpose of working." In the United States, the law as to ownership of precious metals in land that is private property is in great conflict in many state jurisdictions. In Oregon, the law has been 79 (1891) 1 Ch. (Eng.) 431, 444; 1 Plowd. (Eng.) 336 (1568). 80 Stat. 5 Wm. & M., c. 6. declared to be that the mines of precious metals belong to the eminent domain of the political sovereignty, that is, the state, for the benefit of the people." In California, it has been declared that the common-law right of the crown is not a necessary ingredient which passed to the state. The doctrine that the common-law right of the crown to all mines of precious metals vests in the state as the successor of the royal sovereign is rejected as inapplicable to American institutions, and it is held that the right of the British crown was a personal prerogative and not an incident of sovereignty." In New York, the right of the state to mines of gold and silver is declared by statute, which provides that all mines, the ore of which shall contain less than two-thirds in value of copper, tin, iron, and lead, or any of these metals, belong to the state."* In New Jersey, the prerogative right to royal mines was formerly asserted;" and this was so in the early days of its history. However, it is not necessary to further discuss a question which, as stated by authority, "is abstractedly of small importance. Since the title to most, if not all, of the land in the United States is derived from grants by the sovereign, the right to minerals therein is governed by reservations in those grants or by the organic law of the states. In the absence of a reservation to the sovereign, the owner of the land is the owner of all the minerals therein. The question of this right of the sovereign to mines in the public domain, or to mines. reserved in the land that was once the property of the sovereign, is a distinct question not involving any question of regalian right."" 27. Minerals Under Navigable Streams and Public Highways. In England, the soil covered by the navigable streams and along the shores of the sea below the ordinary high-water mark belongs to the crown. It follows that all minerals within those limits do not belong to the owner of the adjoining land, but to the crown. In the United States, 825 Ore. 104, 106 (1873). 83 17 Cal. 199, 220 (1862). 84 N. Y. R. S. 1894, p. 409. 85 30 N. J. Eq. 323 (1878), note. such land and minerals therein belong to the state within which they are situated. It follows that the state can prevent any one, not licensed by it, from digging minerals in the soil, and it may recover the value of the minerals dug from the one who dug the same without having any right to do so. Where, however, one has dug minerals or gathered stones from the bed of a navigable river, without license from the state, no third party can assert title to them or take the same away from the one who has dug them." So long as the state does not object, the one who dug the minerals is entitled to them, and his title to these minerals is good against every one. No person other than the state can deprive him of these minerals, and shield himself behind the state's title to them." The state may by a specific grant convey the right to dig minerals in the soil under navigable streams, or under the sea, to an individual or to a corporation." It seems that only the legislature of the state would have the right to make such a grant. Such a grant cannot be validly made by the officials of the state, such as the governor, secretary, or treasurer." Such a right granted by the state is not a grant of the soil itself, nor of the minerals of the soil, but a right to dig the minerals in the soil and to take away and appropriate to the grantee's use the product of his digging. It is in the nature of a license." The law as to minerals under highways depends upon the title of the roadbed, and the reservation in case the title to the surface is alienated. If the title of the roadbed be in the state or a municipality, the state or municipality owns the minerals thereunder. Where the title is in a private person, the ownership, also, of the minerals is in such person, in accordance with the proposition, stated before, that land includes not only the ground or soil, but everything attached to it, above or below." If such owner of the land dedicate a street thereon to public use, reserving therefrom the minerals, and subsequently convey lots described 87 144 U. S. 550 (1884). 88 38 Pa. 380 (1861). 89 144 N. E. Rep. 550 (1892). 90 22 S. C. 50 (1884). 91 18 Pa. 70 (1851). 92 See subtitle Rights of Owner supra. as bounded on such streets, the grantees succeed to the grantor's right to the minerals. In Kansas, cities may by contract dispose of the right to mine beneath the streets, subject to the duty to make compensation to owners of private property for injuries done by the operations. In Ohio, the owners of land over which a highway passes may mine thereunder, with the consent of the municipal authorities, upon giving security." 28. Minerals in Land Taken by Right of Eminent Domain. - When land is taken by a railroad company, by right of eminent domain, for the purpose of constructing a road, all the right that the company thus acquires is a mere use of the land for the purpose of its road, a right of way over the land. The owner of the soil still retains ownership of the land and, as a consequence, is entitled to all the minerals within the land." The company has a right to make excavations, fills, and embankments, and, as incidental to this right, may lawfully quarry and remove stone and earth from one point to another on the line of the road. It is generally considered, however, that the company has no right to the soil and the quarries under and within the space occupied by the road for the purpose of repairing." In Pennsylvania, the law seems to be that the company has the right to use the soil within the limit of the road, for the purpose of repairing the road." Minerals lying below the level of the road, and whose excavation is not necessary in the construction of the road, belong to the owner of the land condemned. Where, by the right of eminent domain, a railroad company constructs an underground railroad through the land of another, the minerals excavated from the land, except those in such land as are necessary in the building of the road, belong to the owner of the soil. Therefore, coal so excavated does not belong to the company, but belongs to the owner of the fee. Such owner has a right to dig these minerals, 93 Barr. & Ad. M. & M., p. 183 and note, citing Kan. Gen. Stats. 1889, Secs. 3,840, 3,842; Ohio Act April 13, 1894. 94 124 Ind. 329 (1890). provided he do not interfere with the rights of the company; that is, he must leave sufficient support for the road. For such limitation upon his right to mine, the owner of the fee is entitled to compensation when the damages of the land condemned are estimated. The company may, however, enter into special arrangements with the owner of the soil and waive the right for the support of its road, and may agree to remove its road when the mining operation necessitates it and when notified by the owner of the soil to do so. Such an agreement is perfectly legal and enforceable in law." This is the prevailing rule. In Nevada, provision is made by statute that the owner of the soil shall not mine under or upon the land belonging to a railroad company without the company's consent."" MINING LEASES 29. Definition and Nature. The term mining lease is used to include all grants and conveyances for the purpose of working the mines on the land, whether the grant be in strictness a lease or not. Practically, a lease of mines is in substance a sale by the lessor to the lessee of the minerals that the latter shall dig within the period during which the lease operates. It is a liberty given to a particular individual for a specified length of time, to go. into and under the land and get certain things there if he can find them, and to take them away just as if he had bought so much of the soil." 100 It is entirely competent for the owner of the fee to grant a lease of the minerals under the surface of his land." A grant of the minerals in, upon, or under the land, either specially named or designated by general terms with the right to go upon the land and occupy the same, with the right also to construct such things as may be necessary 97 29 Mo. 141 (1859); 5 Watts (Pa.) 546 (1836); 146 Pa. 130 (1892); 86 Pa. 468 (1878). 98 Nev. Gen. Stats. 1889, Sec. 887. 99 22 Q. B. Div. (Eng.) 318, 327 (1889); L. R. 8. A. C. (Eng.) 641, 650 (1883). 100 140 Mo. 23 (1897). |