of the license, if the same was revoked for good cause, an injunction will lie in favor of the legal owner of the land, to restrain the continuance of the trespass.1

2

66

§ 201. Same Licensee bound by rules in register. The rights of a licensee under a mining register," are generally limited by the rules of the licensor contained in the register, and he must conduct his mining operations accordingly, and although, in the case of a lease, conditions that work a forfeiture would be construed less favorably to the lessor, in the case of a license a failure to comply with any of the conditions on which the same was obtained works a complete revocation of the license, and the licensor can, at his election, prevent any further work thereunder. But where the licensee has made valuable discoveries upon the land of the licensor; where he has purchased costly machinery, and been to great expense in opening up and developing his mine; 5 it is hardly to be supposed that a court of equity would allow the owner of the land to work a forfeiture of the

1 Lunsford v. LaMotte Lead Co., supra. Under some rules the miner does not even become the owner of the ore, after severance, but gets only a certain per cent. Rochester v. Mining Co., 86 Mo. App. 447.

2 Boone v. Stover, 66 Mo. 430; Lunsford v. Lead Co., supra; Chenowitch v. Granby Min. Co., 74 Mo. 174.

3 Ante, idem. Garver v. Gunther, 51 M. A. 545 at 549. But the notice of licensor's election must be given. Muskett v. Hill, 7 Scott, 855; B. & W. L. C. 485. It is a question of fact whether licensee has forfeited. Beatty v. Gregory, 17 Iowa, 116.

4 By statute in Wisconsin a license is irrevocable after valuable discoveries. R. S. Wis., § 1647; Tipping v. Robbins, 64 Wis. 546. But see Tipping v. Robbins, 71 Id. 507.

5 Riddle v. Brown, 20 Ala. 412; Desloge v. Pearce, 38, Mo. 588; Boone v. Stover, supra; Huff v. McCauley, 53 Pa. St. 206; Rynd v. Oil Co., 63 Pa. St. 397; Gillett v. Treganza, 6 Wis. 343; Keeler v. Greene, 21 N. J. Eq. 27; East Jersey Iron Co. v. Wright, 32 N. J. Eq. (5 Stew.) 248; Wheeler v. West, 71 Cal. 126; Sheldon v. Davey, 42 Vt. 637; Roberts v. Rose, 3 H. & C. 162.

licensee's rights for a failure to comply with a technical and arbitrary rule contained in the mining register,1 but, on the contrary, where the injury, resulting from a failure to comply with the rules of the mining register, is susceptible of pecuniary compensation, the court would allow a reasonable damage for the breach, and hold the licensor to performance of the contract with the licensee. For instance, a clause to the effect that the licensee shall commence operations by a certain date, although it is such a condition as would work a forfeiture of his rights under the license, for a failure to commence work within that time, it could not be specifically enforced, but the time so fixed is of the essence of the contract only so far as to enable the licensor, after its expiration, to maintain an action for the non-performance of the stipulation.*

1 Ante, idem. A license to bore for oil in writing and acted upon, is not revocable. Dark v. Johnston, 55 Pa. St. 164; M. M. D. 208. "The expenditure of money upon the faith of a license is to be distinguished from the case of money paid as the consideration for granting the license; in the latter case the mere fact of a consideration paid does not convert the license into a contract giving irrevocable interests." Id.; Huff v. McCauley, 53 Pa. St. 206. M. M. D. 208.

2 Silsby v. Trotter, 29 N. J. Eq. 228. See also Manganese Iron Co. v. Trotter, 29 Id. 561; Harkness v. Burton, 39 Iowa 101; Beatty v. Gregory, 17 Iowa, 109; Bisp. Prin. Eq., § 181; Oil Creek Co. v. Atl. &c. Co., 7 P. F. Sm. 65; McKim v. White Hall Co., 2 N. Y. Ch. 510; Clarke v. Drake, 3 Chand. 253; Fitzhugh v. Maxwell, 34 Mich. 138. But see Brown v. Vandergriff, 30 P. F. Sm. 142.

Fry. Spec. Per. Con. 65, 170. Such covenants could not be enforced. Booth v. Pollard, 4 Y. & C. Ex. 61; Pollard v. Clayton, 1 K. & J. 462. But see contra, Adams v. Orknob Copper Co., 7 Fed. Rep. 634; Missouri cases, supra, and Riddle v. Brown, 20 Ala. 412; Upton v. Brazier, 17 Iowa, 153; Woodward v. Seeley, 11 Ill. 157; B. & W. L. C., p. 483.

4 Fry. Spec. Per. of Con., p. 456 et sub. So, a rule that required the licensee to work at least two days out of every ten, is held to be complied with, by procuring machinery to work upon the mine, although it would amount to a violation of the condition. Packer v. Heaton, 9 Cal. 568. Wade's Am. Min. Laws, p. 201 et sub. Also Miller v. Chester Slate Co. (Pa.), 18 Atl. Rep. 565.

- As long

as a

§ 202. Revocation of the license. license remains executory, the power to revoke it is undoubted, and since the licensee has no indefeasible right to the enjoyment, he has no remedy by which he can prevent the licensor from prohibiting the exercise of the license.1 But where the licensee, in the exercise of his license, has been put to considerable expense, and a revocation of the license would result in great damage to him, it being almost impossible to place the parties in statu quo, the question whether or not the license can then be revoked, has caused considerable confusion in the decisions of the courts. Some of the authorities hold that the license is even then revocable, while a number of the

2

1 Riddle v. Brown, 20 Ala. 412; Upton v. Brazier, 17 Iowa, 153; Bush v. Sullivan, 3 Green (Iowa), 344; Babcock v. Utter, 1 Keyes (N. Y.), 397; Desloge v. Pearce, 38 Mo. 588; Funk v. Haldeman, 53 Pa. St. 229. But whether a license in writing can be revoked, see Rogers on Mines, 313; Dark v. Johnson, 55 Pa. St. 124; Veglte v. Rareton &c. Co., 19 N. J. Eq. 154. A reasonable notice of the licensor's determination to forfeit must be given, however. Harkness v. Burton, 39 Iowa, 101; Desloge v. Pearce, 38 Mo. 588; Beatty v. Gregory, 17 Iowa, 109. And the notice must clearly show the licensor's intention to revoke the license. Muskett v. Hill, 7 Scott, 855; B. & W. L. C., pp. 485–486. A parol license, not accompanied by delivery of possession, is revocable. Upton v. Brazier, 17 Iowa, 153; 9 M. M. R. 243. But where it is executed, see Wilson v. Chalfant, 15 Ohio, 248, and Yunker v. Nichols, cited in 9 M. M. R. 243; and Huff v. McCauley, 53 Pa. St. 206; 9 M. M. R. 268.

2 Desloge v. Pearce, 38 Mo. 588; Boone v. Stover, supra; Chenowitch v. Min. Co., supra; Cocker v. Cooper, 1 Cramp. M. & R. 418; Owen v. Field, 12 Allen, 457; Cook v. Stearns, 11 Mass. 533; Tiedeman R. P. 653; Houston v. Laffree, 46 N. H. 507; Foot v. N. H. Co., 23 Conn. 223; Selden v. Del. & Hud. Canal Co., 29 N. Y. 639; Clute v. Carr, 20 Wis. 533. 6 A parol license to mine for lead ore, unaccompanied by actual possession or the expenditure of money or labor thereunder, may be countermanded by the licensor." Upton v. Brazier, 17 Iowa, 153. M. M. D. 208. "A license

to mine under which entry and expenditure have been made cannot be revoked arbitrarily; it is analogous to the entry of a tenant at will for farming purposes, and he has the right to the six months' notice allowed by the common law in such cases." Bush v. Sullivan, 3 Green (Iowa), 344. M. M. D. 208. "A parol license from the owner of land in which the mines are excepted, to the grantee of the mines to enter

cases maintain, on the equitable doctrine of estoppel, and part performance, that the license is then irrevocable.1 Perhaps the better doctrine is the mean between the two. If the licensor revokes his license in violation of a valid subsisting contract, and thereby produces damage to the licensee, such damages are recoverable against the licensor for the breach and the revocation of the contract.2 But if there is no valid contract for the continuance of the license, since the length of enjoyment is indefinite, a revocation of the same would not subject the licensor to an action for damages. A mining license, however, if founded on sufficient consideration, is construed a valid subsisting contract, and a revocation of the same would be held a breach of contract, for which the licensor could be held responsible.*

3

and dig them, vests no estate in the licensee, and is revoked by a conveyance of the land to a third person." Gesner v. Cairns, 2 Allen (N. B.), 595. M. M. D. 208. A license to enter and remove coal is revoked by sale of the land. Sunnyside Coal Co. v. Reitz, 14 Ind. App.

487; 43 N. E. Rep. 46.

1 Dark v. Johnson, 55 Pa. St. 164; Renick v. Kern, 14 Serg. & R. 267. This is the Pennsylvania rule. Lacey v. Arnot, 33 Pa. St. 169; Huff v. McCauley, 53 Id. 209; Blanchard & Weeks Ld. Cas., p. 484. Some of the States hold that the licensor must compensate the licensee for expenditures before he can revoke the license. Rhodes v. Otis, 33 Ala. 600; Woodbury v. Parshley, 7 N. H. 237; Tiedeman R. P., § 653. 2 Beatty v. Gregory, 17 Iowa, 114; Harkness v. Burton, 39 Id. 101; Snowden v. Wilos, 19 Ind. 14; Silsby v. Trotter, 29 N. J. Eq. 228; s. c. 3 Mor. Min. Rep. 137.

3 Tipping v. Robbins, 71 Wis. 507; Tiedeman on R. P., § 652 et sub. 4 Beatty v. Gregory, 17 Iowa, 109; Harkness v. Burton, 39 Id. 101. But a sale of the premises will generally amount to a revocation. Fuhr v. Dean, 26 Mo. 116. "A parol license of mining lands is valid, and can only be terminated by compensation to the licensee or the notice necessary to terminate a tenancy at will." Harkness v. Burton, 39 Iowa, 101. M. M. D. 208. "A license to mine was granted, with a proviso that if the grantee, after notice to work according to his covenant, failed to keep six miners at work, and the grantor fixed notice on the premises that he intended to avoid the license, it should be lawful

§ 203. Same When licensee deemed a trespasser. Although it is sometimes difficult to determine the exact period at which a license can be revoked, after the licensee has entered under the same and expended money and is in the enjoyment of the rights connected with the granting of the license, it follows from the nature of the transaction and the rights created thereby that there must be some period at which the same can be revoked, for otherwise it would create a permanent interest in the land.1 The license cannot be revoked, however, so as to render the acts of the licensee thereunder, committed prior to the revocation, or by virtue of the license, a trespass, for the license itself, as authority for the acts done thereunder, would deprive such acts of any tortious or wrongful element.2 But where the licensee, after a legal revocation of the license, continues to act thereunder, as though his authority still continued, since his conduct in such case is not under or by virtue of the license, but wholly without right, it would be the same as though the license had never existed, and he would be deemed a trespasser for acts committed after its revocation.3

§ 204. Assignment of license. -A license to mine, being itself a mere personal privilege, or authority in the licensee, to be exercised in the land of the licensor, does not, generally, authorize an assignment by the licensee of the rights secured to him by the license. And the assignee does

for the grantor to re-enter within a month after fixing the notice, and then the license should be void: Held, that notice to the grantee that unless he kept six miners to work, the grantor would re-enter at the expiration of a month, did not avoid the license or render the grantor's re-entry lawful." Muskett v. Hill, 5 Bing. N. C. 694; 7 Scott, 855.

M. M. D. 209.

1 See definition of License, supra, and authorities thereunder.

2 Fuhr v. Dean, 26 Mo. 116 at page 121.

3 Lunsford v. La Motte Lead Co., 54 Mo. 426.

4 Riddle v. Brown, 20 Ala. 412; Mor. Min. Dig., p. 208. A verbal