entitled to recover the amount paid by them for the purpose of redeeming the property from the sale had under mechanics' liens."

52. Breach of Warranties and Conditions. - In all cases of misrepresentation, breach of any warranty in the application, or of any condition in the policy, the ordinary rules that govern other insurance contracts apply to title insurance. The insured is bound to the highest degree of good faith. A large risk is assumed for a small premium in reliance on the representations and warranties of the insured. The policy refers to the application as being the basis of the insurance, and the applicant agrees that the statements therein are true, and that any false statement or suppression of material information avoids the policy.

The judicial declaration in this regard is that answers to questions on applications are warranties in legal effect, and that the matter of their materiality is not an open question. Therefore, where the question in a case turned on a false answer by the applicant to a question respecting the last price paid for a property, there was contention as to whether the answer that named a false price paid for the property were material or not. The court held that "the answer to the question 'Last price paid?' was a statement of fact, and not the expression of an opinion, as a statement of value generally is. . . . The effect of falsity in the statement on the validity of the contract is not made to depend on the intent with which the statement is made, as that the intent shall be fraudulent, but on whether true or false, to the best of the applicant's knowledge and belief. Where the contract itself does not stipulate the effect that a particular false statement or representation shall have on the contract, or where it stipulates merely that the misrepresentation or suppression of a material fact shall avoid it, the fact misrepresented or suppressed must have been material, as an inducement to enter into the contract; and as the materiality must be shown by matters outside the terms of the contract,

=

1270 Fed. Rep. 194 (1895).

it is a question of fact. But the parties may, by their contract, determine the materiality for themselves, as where they stipulate that if a statement of fact made by one of them, and set forth in the contract, be false, it shall avoid the contract. In such case the statement is in effect a warranty. Whether they have made the statement material, and in effect a warranty, is a question for the court, to be determined by an interpretation of the contract.'

13 50 Minn. 429 (1892), by Gilfillan, C. J.

9913

THE LAW OF MINES AND MINING

(PART 1)

INTRODUCTION

SCOPE OF TITLE

1. The law of mines and mining, as a phrase or term, is expressive simply of those special rules of law, which an authority has judiciously traced to deduction "by the application of general rules to the questions that arise as to the rights and duties of miners and mine owners in their relation to the land, to one another, and to those in contact with whom they are brought by reason of the business of extracting the various kinds of valuable minerals from the earth."" Hence, the principles herein stated are the outcome of decided cases; and to state these in a necessarily general way, in their applicability to the various persons engaged in the science of mining, is chiefly the design of our treatment, except that the definitions of the various terms employed in the business of mining are given, more or less specifically, as auxiliary to a perfect understanding of the propositions set forth. It is not the purpose of any part of our instruction to deal with mineral formation. That task is more appropriate to another branch of the science of mining. It is, however, indispensable that there should be considerable attention given. to property in mines and minerals, and the rights of persons. in relation thereto, as information on that division of our subject is most important.

1 Barr. & Ad. M. & M., p. vii of preface.

For notice of copyright, see page immediately following the title page

DEFINITIONS OF TERMS

2. A mine is an excavation in the earth for the purpose of getting metals, ores, coal,' or other mineral substances. Strictly, a mine is not properly so called until it is opened. Before it is opened, it is at best but a vein or lode. This is further explained hereinafter. A vein or lode is a seam or layer of any substance intersecting a rock or stratum, and not corresponding with the stratification; an occurrence of ore, usually disseminated through a gangue or veinstone, and having a more or less regular development in length, width, and depth. An opened vein is often called a mine, but when the term mine is used, it is generally understood that the excavation so named is in actual course of exploitation; otherwise, some qualifying term, like abandoned, is required. No occurrence of ore is designated as a mine, unless something have been done to develop it by actual mining operations."

The essential difference between a mine and a quarry is that the latter is usually opened to the day, the article produced, such as stone for building and other purposes, being worked upon or above the ground. In a mine, part of the excavation may be an openwork, but most of the mineral or metal substance is gotten from underground workings. There are certain excavations which are called neither mines nor quarries, as, for instance, places where clay is being dug out for bricks. In England, such places are called pits, and also openworks."

3. The term mineral is applied to any constituent of the earth's crust, other than vegetable. More specifically, it is an inorganic body occurring in nature, homogeneous and having a definite chemical composition which. can be expressed by a chemical formula, and further having certain distinguishing physical characters. Popularly the word is

2 Cent. Dict.

32 Mod. (Eng.) 193 (1676).

4 Webst. Dict.

5 Cent. Dict.

Ibid.

7 Ibid.

8 Ibid.

used in a narrower sense, and when people talk of minerals, they frequently use that word in reference to metals or metalliferous ores. Usually, in legal documents, the word means any substance gotten from the ground by mining or quarrying. Coal is a more or less distinctly stratified mineral, varying in color from dark brown to black, brittle, combustible, and used as fuel, not fusible without decomposition, and very insoluble." The word metal means a firm, heavy, hard substance, opaque, fusible by fire, and concreting again when cold into a solid body, such as it was before, malleable under the hammer, bright, glossy, and glittering when newly cut or broken." Ore is the compound of a metal with some other substance, as oxygen, sulphur, or arsenic, by which its properties are disguised or lost. Metals not so combined are called native metals." A fossil is an organic body so situated in the earth, buried in solid rock or in earthy deposits, as to be capable of indefinite preservation." The term may apply to stones dug or quarried."

4. Surface means the outside layer of the earth. Soil includes the surface and all below it to the center of the earth. The term is often used to denote the upper cover of the earth, especially that part thereof which sustains vegetable life. Subsoil includes all that is below the actual surface of the earth, down to the center.

5. The phrase produce of the mine includes not only that which is produced from the mine in its orginal state, but also such articles as are derived therefrom. Coke is a produce of the mine, though its chemical properties have been changed by smelting or other process.

6. The apex of a vein is the highest point where it approaches the surface of the earth, and where it is broken on its edge so as to appear to be the beginning or end of the vein.

9 L. R. 20 Ch. D. (Eng.) 552, 558 (1882). 10 Cent. Dict.

11 Johns. Dict.

12 Stand. Dict.

13 Ibid.

14 14 M. & W. (Eng.) 859, 872 (1845).