CHAPTER VII.

SALE AND CONVEYANCE OF MINING PROPERTY.

SECTION 91. Should be in writing.

91a. Bill of sale sufficient.

92. Shares in cost book companies.

93. Sales by corporations.

94. Of mines held in partnership.

95. Doctrine of caveat emptor.

95a. Buyer may remain silent.

96. Mines forming part of inheritance.

97. Reservation of mines and minerals.

98. Dower attaches to.

99. Sale by trustees.

100. Sales by executors and administrators.

101. Partition of mines.

§ 91. Should be in writing. It has been claimed by eminent authority that a mere verbal sale of a mining claim on public land, accompanied by a delivery of possession, would constitute as good a sale of the claim so transferred, as if the transaction had been evidenced by an instrument in writing.1

I Wade Amer. Min. Law, p. 218, § 154. Gore v. McBrayer, 18 Cal. 582; Table Mountain &c. Co. v. Stranahan, 20 Cal. 198; s. c. 21 Cal. 548; Gatewood v. McLaughlin, 23 Cal. 178; Antoine Co. v. Ridge Co., 23 Cal. 219; Mining Co. v. Taylor, 100 U. S. 37. But this would only apply where the claim was held by mere right of possession and in the absence of a local statute prescribing the mode of transfer. Ante, idem. Clark v. McElroy, 11 Cal. 155 (citing Adams v. Cuddy, 13 Pick. 463; Morse v. Godfrey, 3 Story, 364; Dupont v. Wertheman, 10 Cal. 354); Waring v. Crow, 11 Cal. 366. Copp's Mineral Lands, p. 411-413. "In Table Mount. Tunnel Co. v. Stranahan, 20 Cal. 198, a case arising before the Act of 1860 was passed (though not decided till afterward), it was considered that a conveyance by deed was not necessary to invest a party with the right to a mining claim. It was thought that a conveyance by deed would have passed no greater interest than that a party could acquire by a transfer of possession. The ground of the decision was that rights resting upon possession, and not amounting to an interest in the

This would seem in direct contradiction to the acknowl- · edged meaning of the statute of frauds, for the minerals, before their severance from the soil, constitute a part and parcel of the realty,1 and the owner's interest therein is clearly within the provision of the statute requiring sales and transfers of such interest, to be evidenced by some instrument in writing. It is not claimed, however, that such an interest can be transferred verbally, without a transfer of possession, but as the transfer of

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land, were not within the statute of frauds, and no conveyance other than a transfer of possession was necessary to pass them. And accordingly, where a party was put in possession as the successor in interest of a mining company, and the intention undoubtedly was that whatever rights the company had should pass with the possession, and there was no reservation in that respect, it was held that the transfer was complete without any written conveyance. In Gatewood v. McLaughlin, 23 Cal. 178, the court held that a mining claim upon the public lands rested upon possession only, and a sale by parol by one in possession, accompanied by transfer of possession, was valid. Table Mount. Tunnel Co. v. Stranahan, and Jackson v. Feather River Water Co. (supra) were affirmed." Blanchard & Weeks Ld. Cas., p. 343; see also Copper Hill Min. Co. v. Spencer, 25 Cal. 18.

1 Bainbridge on Mines, 3; Gillett v. Treganza, 6 Wis. 343; Grubb v. Bayard, 2 Wall. Jr. (U. S.) 81; Lyon v. Gormley, 53 Pa. St. 261; Lykens Valley Coal Co. v. Dock, 62 Pa. St. 232; Forbes v. Gracey, 94 U. S. 762; Copp's Min. Lands, 192; Manning v. Frazier, 96 Ill. 279; Carrhart v. Mont. Co., 1 Mont. 245; Williams v. Gibson, 84 Ala. 228; Melton v. Lombard, 51 Cal. 258.

2 "Mines, whether considered as part of the land itself or as forming distinct possessions and inheritances, are undoubtedly within the statute of frauds, and cannot be transferred by parol." Bainb. on Mines, p. 112; Big. Mt. Improvement Co.'s Appeal, 54 Penn. 370; Blanchard & Weeks Ld. Cas., p. 341, et sub.

3 "In Copper Hill Mining Company v. Spencer, 25 Cal. 18, the court held that the rule which allowed mining claims to be transferred by verbal sale and delivery of possession, only applied to cases where the grantor was in the actual possession and could make delivery to the grantee, and did not extend to cases where, at the time of the sale, the claim was in the adverse possession of third parties, and in such cases there should be a written conveyance to pass the title." B. & W. L. C., pp. 343 and 344. "Mining claims in Utah (by statute) are real estate, and pass by deed." Houtz v. Gisborn, 1 Utah, 173; M. M. D. 26. "A miner's

possession alone is not sufficient to take verbal sales of real estate out of the statute, it is difficult to grasp the theory upon which this claim is based. Statutes have now been passed in most of the mining States, requiring such transfers to be evidenced by an instrument in writing; 2 but although the same reasons prevail for the requirement of such evidence in sales and transfers of mines as pertain to sales of other similar species of property, the courts, except in rare instances, have failed to regard such provisions as mandatory, but have leaned to a liberal construction of the statutes, requiring conveyances of mining claims to be in writing.

§ 91a. Bill of sale sufficient. - Bills of sale have been held sufficient to transfer the interest of a claimant to a mining claim on public land. A bill of sale is generally defined to be a record of the transaction in a sale of per

claim, being a mere possessory right on public lands, is personalty, and may be sold and conveyed by the administrator." Corbett v. Berryhill, 29 Iowa, 157; M. M. D. 26.

1 Tiedeman on R. P., § 783, p. 602; 3 Washburn on R. P. 421, 422. A mining claim upon the public land is such an interest in real estate as to prevent its transfer by parol. Moore v. Hammersley, 109 Cal. 122; 41 Pac. Rep. 805. The right to a claim upon the public domain is property and may be sold and is subject to the law of descent, without affecting the title of the government. Manuel v. Wulff, 152 U. S. 505. 2 St. John v. Kidd, 26 Cal. 269; Goller v. Tett, 30 Cal. 481; Patterson v. Keystone Min. Co., 30 Cal. 360; 23 Id. 575; Statutes Cal., Act 1860, Statutes at Large.

3 Ante, idem.

4 Copper Hill Mining Co. v. Spencer, 25 Cal. 18; Wade's Amer. Min. Laws, p. 219, § 154, and cases cited.

5 Wade's Amer. Min. Laws, pp. 218 and 219; Myers v. Tongerhorson, 46 Cal. 190. "Where a mine owner gives an option to purchase his mines, he may withdraw such option at any time before its acceptance." Snow . Nelson (U. S. C. C., D. Nev.), 115 Fed. Rep. 353.

6 St. John v. Kidd, 26 Cal. 269; Felger v. Coward, 35 Cal. 650 (construing Act of 1860, p. 175). But see, contra, Clark v. McElvey, 11 Cal. 160, where bill of sale not under seal was held insufficient.

sonal property, transferring the title and possession of such property1 and being in the nature of a receipt for the purchase money of the property sold, and furnishing evidence of the transfer and delivery of the property conveyed.2 Generally, any article of personal property can be transferred by bill of sale that is capable of complete transfer by delivery. Under the statute of frauds, however, chattel interests in real estate, fixtures and property forming a part of the realty, except property known as trade machinery and fixtures, are not considered personal chattels.5 But there is no provision of the statute, preventing the sale and transfer of such property under a valid bill of sale, and hence the courts have held, that the sale of a mine, or mineral claim, will be sufficient if evidenced by a bill of sale. No particular form of words is necessary in the bill of sale, in order to constitute a valid assignment of a mining claim, but it must be clear, from the words used, that the maker intended to convey the title to the property; but if this appear from the body of the instrument, the courts will construe the language used so as to effectuate the intention of the parties.10

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§ 92. Shares in cost book companies. Shares in cost book mining companies are held not to be such an interest in land as to bring the shares within the statute of frauds,

1 Benjamin on Sales, p. 417 et sub.

2 Benjamin on Sales, supra.

3 Ante, idem.

4 Benjamin on Sales, pp. 98-118; Wade, § 153, p. 217.

5 Benj. Sales, p. 98 and cases cited.

6 Wade's Amer, Min. Laws, pp. 218-219.

7 Myers v. Farquharson, 46 Cal. 190; see supra.

8 Ante, idem; Wade's Amer. Min. Laws, § 154, pp. 219-220.

9 Sullivan v. Heuse, 2 Colo. 424.

10 Union Con. S. M. Co. v. Taylor, 10 U. S. 37; Am. & Eng. Enc. of Law, Vol. 15, p. 578; Kinney v. Con. Vir. M. Co., 4 Saw. (U. S.) 382.

and requiring the transfers of such shares to be evidenced by an instrument in writing. The shares in such companies are held to represent a mere nominal interest in the company and not an interest in the land.2 But shares of stock in cost book mining companies are not always to be regarded as personal property, and when the character of the property is put in issue, in the transfer of a shareholder's interest, the question to be determined, is whether the shareholder has individually an interest in the land, as land, or whether his shares represent a mere moneyed interest in the company. If the interest is an interest in the land, as such, a conveyance of the same would come within the statute of frauds and, to be valid, would have to be evidenced by an instrument in writing; while a mere verbal sale of a share, represented by a moneyed interest, would constitute a good conveyance of such sharcholder's interest, whether the company was incorporated or not.5

§ 93. Sales by corporations.

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The manner of disposing of corporate property, by mining corporations, is regulated

1 Watson v. Spratley, 10 Ex. Ch. 222; In re Wrysgan Slate Co., 28 L. J. Ch. 894; Mayhew's Case, 5 De G. M. & G. 837; Lindley on Part. (Vol. II.), § 674, pp. 907-910.

2 Ante, idem.

3 See Morris v. Glynn (27 Beav. 218), where shares in an unincorporated iron company, working iron got from its own estates, and having estates for purposes other than that of iron manufacture, were held to be within the Mortmain Act, although by the deed of settlement of the company the shares were declared personal property. Considered subsequently in Entwistle Co. v. Davis, 4 Eq. 272.

4 Morris v. Glynn, supra; Lindley on Part., §§ 149-701; Bentley v. Bates, 4 Y. & C. 182; Redmoyne v. Forster, 2 Eq. 467.

5 Coll. on Mines, p. 100 and note; Reynolds' Exr. v. Bossett, Exr., cited by Collier; Mayhew's case, supra; Watson v. Spratley, supra; Frederick v. Cooper, 3 Iowa, 171; Jeffries v. Smith, 3 Russ. 158; Crowshay v. Maule, 1 Swanst. 518.