3 not acquire from the assignment, any right to enter upon the premises of the licensor.1 Where the license is coupled with an option in the licensee to purchase within a certain time, an assignment before the election to purchase by the licensee would terminate both the license and the option, for the latter, like the license, could be exercised by the licensee alone, and although a license is not generally revocable after expenditures and improvements by the licensee, an assignment would have the effect of terminating the rights of the licensee, with a right to remove his improvements. But although a license is not usually assignable, the rule is otherwise where the instrument creates an estate in the grantee amounting to a leasehold interest, unless there is a covenant against assignment, and where the licensee, in addition to the right to enter and search for minerals, is also given the right to raise and carry them away and to convert the same to his own use, this is held to vest such an interest in him as would pass to his assignee by a proper assignment." license to mine is revocable and personal to the licensee and cannot be assigned. Riddle v. Brown, 20 Ala. 412; 9 M. M. R. 219. 1 Gesner v. Cairns, 2 Allen (N. B.), 575. 2 Mendenhall v. Klink, 51 N. Y. 246. 3 Dark v. Johnson, 55 Pa. St. 164. * Desloge v. Pearce, 38 Mo. 588. Muskett v. Hill, 5 Bing. New Cases, 694; 7 Scott, 855. "A license to search for and raise metals, and also to carry them away and convert them to the licensee's own use, passes an interest which is capable of being assigned." Muskett v. Hill, 5 Bing. New Cases, 694; 7 Scott, 855; M. M. D. 206. CHAPTER XIV. MINING EASEMENTS. SECTION 205. On government land. 206. Easements recognized by law. 209. Same-Ditches and drains. 210. Flumes and tailings. 211. Implied right to get minerals. 212. Surface owner entitled to support. 213. Relative rights of mine and surface owner. 214. Same Custom cannot effect right. 215. Same -"Lateral" and "subjacent" support. 218. Same-Hydrostatic pressure. 219. Right of way incident to right to mine. 220. Private right of way. 221. Same-Way of necessity. 222. Same-Who must repair the way. 223. Public right of way. 224. Right to cut timber on government land. 225. Timber rights on private lands. 226. Easements in water courses. 227. Legalized nuisances. § 205. On government land. An easement is generally defined to be a right or liberty that one person has in the estate of another, with the privilege of enjoying the same without profit.1 With the exception of those rights reserved in a patent, which are similar to the easements reserved in a deed, mining easements on government land are more properly but statutory reservations, being created wholly by legislative enactment; 2 and aside from water rights and rights of way, Congress has never recognized 1 Bouv. Law. Dict. 515; 2 Wash R. P. 25. 2 Wade's Am. Min. Laws, § 148, p. 206. any important mining easements; 1 but the legislatures of the different States have passed laws restricting the rights of other occupants of the public mining land, in such manner as to develop mines and protect the rights and privileges of the miners of such land. But the provisions of such statutes are construed strictly by the courts, and as the mining operations are in the nature of a trespass on the rights of the other occupants of such land, it has been held that the burden of proof is on the miner in such cases, and that he must show not only that the land in controversy was public mining land, but that he entered expressly for purposes of mining. In some States a bond is required from such person to the other occupant of the land, conditioned that he will not infringe on his private rights of property. 3 § 206. Easements recognized by law. The acts of Congress referred to as recognizing certain rights as easements, in persons mining on public land, are construed by 1 R. S. U. S., § 2338, 2339; Wade Am. Min. Laws, pp. 23, 24, 206. 2 Statutes different States; Act Cal. Apr. 25, 1855; Wade Am. Min. Laws, p. 206. Subsequent locator takes subject to water easement, under R. S. U. S., § 2339; Jacob v. Day, 111 Cal. 571; Broder v. Water Co., 101 U. S. 274; 20 Am. & Eng. Enc. Law (2 Ed), p. 760 et sub. & Weimer v. Lowry, 11 Cal. 104; Stokes v. Barrett, 5 Id. 36; Wade Am. Min. Laws, supra. “Where plaintiff in a suit to quiet title to a mining claim claims under a location subsequent to a conflicting location by defendant, who also asks to have his title quieted, the burden is on each of the parties to prove the validity of their location, the plaintiff having the duty of taking the lead in such proof." Shattuck v. Costello (Ariz. 1902), 68 Pac. Rep. 520. 4 Wade's Am. Min. Laws, § 148, p. 207; Sts. Cal. Act. 1855, p. 145. "There being no reservation in a grant, the grantee takes all that to which the government was entitled." Doran v. Cent. Pac. R. Co., 24 Cal. 245; M. M. D. 130. For construction of the government statute, with reference to the extra-lateral rights of mineral claimant, see St. Louis Min. & Mil. Co. v. Mont. Min. Co. (Mont. 1902), 113 Fed. Rep. the courts as simply confirmatory of the rights and privileges acquired before the enactment of the law, and not as granting any new easements to persons so engaged.1 The legislatures of the different States have also passed laws establishing certain easements in favor of persons engaged in mining on public land, but it is doubtful, if the constitutionality of some of these statutes were brought into question, if the rights acquired thereunder would be considered constitutional by the courts.2 § 207. Of placer claimant. - Placer mines consist of deposits of gold that have been displaced; such as have been dislodged by the erosion of years and the action of the elements and deposited at a distance from their original location. Such deposits are frequently found in the beds of ancient streams and the alluvial soil of the valleys.* Placer claims, however, are not controlled by the provisions governing the location of lode claims, and such mining is regulated almost entirely by the local legislatures. But the amount of land that can be held by the claimant of a placer mine is regulated by the United States statute, and no individual claimant can hold over twenty acres of land, and no association of persons can successfully lay 1 Wade's Am. Min. Laws, § 50, p. 78; Stat. U. S., §§ 2338–2339. 2 Stat. different States; Stokes v. Barrett, 5 Cal. 36; McClintock v. Brinden, 5 Id. 97. The above reference is to the early acts of the Western States warranting an interference with previously acquired rights, by miners upon public land. See B. & W. Ld. Cas., p. 162 and cases cited. See the late case of Heil v. Martin (Tex. 1902), 70 S. W. Rep. 430, for such holding in Texas. See, however, Colquitt-Tignor Min. Co. v. Ragan (Tex. 1902), 68 S. W. Rep. 154. 3 Wade's Am. Min. Laws, § 43, pp. 70-71. 4 Moxan v. Wilkinson, 2 Mont. 421. 5 Wade's Am. Min. Laws, § 44, pp. 71-72. See R. S. U. S. for '79, § 2329. 7 R. S. U. S., § 2331. claim to over one hundred and sixty acres.1 And the tract claimed in either instance would have to be surveyed by the claimant, unless it is on land already surveyed by the government, in order to identify the claim,2 and the question whether a placer claim is required to be recorded is always to be determined by the statute of the State where the tract of land is located.3 Although there is § 208. Rights of tunnel claimants. an apparent discrepancy between the sections of the United States statute concerning the rights of tunnel owners and prior discoverers of lodes on the line of their tunnel,+ there is no doubt but that the owner of the tunnel has the right to locate claims, on the line of his tunnel, for the distance of three thousand feet, from the "face" or commencement of the tunnel.5 But as the right given the owner of the tunnel is a mere right to locate claims upon the line of his tunnel, before the discovery of a lode, upon the line of his tunnel, he could not be said to be in possession of such lode, and therefore could not exercise the right of location given him by the statute.? 1 Wade's Am. Min. Laws, supra. 2 See U. S. Statute, § 2331; Wade's Am. Min. Laws, pp. 72-73. 3 Ante, idem. As to sufficiency of notice of location, under U. S. Statute, see the late case of McKinley Cr. Min. Co. v. Alaska United Min. Co., 183 U. S. 563. 4 See R. S. U. S. 79, § 2322. See Mor. Min. Rts. (10 Ed.), p. 208. 5 Wade's Am. Min. Laws, p. 67, § 38; Enterprise Co. v. Rico Aspen Co., 167 U. S. 108; Campbell v. Elliet, 167 U. S. 116. But see Erhardt 0. Boaro, 15 M. M. R. 472; Mor. Min. Rts. (10 Ed.), pp. 207, 208. 6 See U. S. Sta., supra. Corning Tunnel Co. v. Pell, 4 Colorado, 507; Wade Am. Min. Laws, p. 69. "This became the generally received interpretation of the act until the case of Enterprise Co. v. Rico Aspen Co., 66 Fed. 200, affirmed by the National Supreme Court in 1897, 167 U. S. 108; followed by the case of Campbell v. Ellut, 167 U. S. 116, affirming 18 Colo. 511.” "The court holds that a tunnel duly located and its work diligently |