that it was not sufficient to constitute an open mine.1 And where the mines have been opened prior to his entry, the tenant for life may even work the mine to exhaustion; 2 is entitled to the rents or royalties on all leases made by him, or by the exercise of a power given by his testator or devisor,3 and to the proceeds of royalties on new seams or veins opened by a tenant under lease from his settlor. In many of the United States the privileges and presumptions obtaining in favor of the life tenant are more liberal than at common law,5 although the common law doctrine is preserved in many States. But since mining is a permanent injury to the inheritance and a tenant for life or years is not permitted to commit such waste, they are not entitled to work mines or quarries not opened before the commencement of their estate, and a tenant committing such waste is liable to account to the reversioner.8 It would seem, on principle, when a working prior to the entry of the tenant was disputed, the affirmative being with the tenant, that the onus of proof would be on him, and such is the English rule; but a different rule has been an 1 Ellis v. Snowdon and C. Co., 4 App. Cas. 454. But see Bartlett v. Phillipps, 4 DeG. & J. 461. As to open oil or gas wells, life-tenant has the same right to work as if tenant without impeachment for waste. In re Chaytor's Set., 69 L. J. Ch. 837; 2 Ch. 804 (1900); G. D. U. S., Vol. 12, p. 2571. 2 Koen v. Bartlett, 41 W. Va. 559. 3 Daly v. Beckett, 24 Beav. 114; Cowley v. Wellesley, 35 Idem, 638. 4 Spencer v. Scurr, 31 Beav. 334. Lynn's Appeal, 31 Pa. St. 44; Billings v. Taylor, 10 Pick. (Mass.) 460. 6 Harlow v. Lake Superior Co., 36 Mich. 105; Franklyn Co. v. McMillan, 49 Md. 549; Bar. & Adams on Mines, 9, 17. 7 Viner v. Vaughan, 2 Beav. 466. A tenant for life or years cannot conduct operations for oil or gas, unless wells were opened before he came into possession. Marshall v. Mellen, 170 Pa. St. 371; Williamson v. Jones, 39 W. Va. 256. 8 Griffin v. Fellows, 874 Pa. 114. Bartlett v. Phillips, 4 DeG. and J. 421; Elias v. Snowdon, 4 App. Cas. 461; MacSwinney, p. 47. nounced in Pennsylvania, where it is said that the presumption was in favor of the life tenant until the contrary was established by the reversioner. Of course the prima facie right of the tenant against the reversioner may be expressly negatived by the settlor.2 § 23. Tenant by dower. A tenant by dower has the same right to work opened mines that the life tenant has, and the same rules apply. If the dower has been actually assigned and contains open mines, the widow has the right to work them, even to exhaustion.4 And even before an assignment of dower she would be entitled to one-third of the proceeds of the sale of minerals, extracted from opened mines or quarries,5 or the royalties payable thereunder if mined under a lease.6 In Illinois it has been held the widow may work mines located on the land in which she is entitled to dower, opened after the death of her husband and before the assignment of her dower, since the mine was an open mine at the date of the vesting of her estate.7 The assignment may either be collectively, with other lands, or the mine set off, separately, by itself; described, if collectively, by metes and bounds; or a proportion of the profits or alternate possession and enjoyment of the mine, whichever, under the circumstances of 1 Lynn's Appeal, 31 Pa. St. 44. 2 Ferrand v. Wilson, 15 L. J. Ch. 41, 54. 3 Stoughton v. Leigh, 1 Taunt. 402; MacSwinney, p. 48; Clift v. Clift (Tenn.), 3 Pick. 17; Moore v. Rollins, 45 Maine, 493. 4 Westmorland Co's. Appeal, 85 Penn. 344; Shoemaker's Appeal, 106 Penn. 392. 5 Saeger v. McCabe, 92 Mich. 186; Rockwell v. Morgen, 2 Beas. Ch. 389; Hendrix v. McBeth, 61 Ind. 473. 6 Hendrix v. McBeth, supra; Dickin v. Hamer, 1 Dr. & Sm. 295; MacSwinney, p. 48. Lenfers v. Henke, 73 Ill. 405; Priddy v. Griffith, 150 fll. 560, a well considered case. the case, would best subserve the interests of the parties. 1 The right of the tenant by dower has also been recognized to follow veins unopened in an open mine or quarry, and even to sink new pits to reach deeper veins of the opened mine; 3 but generally the widow is not entitled to dower in unopened mines, as beds of coal underlying the land, nor will the widow of a locator of a claim upon the public land, who dies prior to issuance of a patent, be entitled to dower in such claim, as the right of the husband was a mere possessory right and no estate could be predicated thereon, as against the government or its grantees.5 § 24. Tenants in common. A conveyance of a mine, or mining tract, to two or more persons jointly would create a tenancy in common as to such property with the usual incidents of such tenancies.6 A lease by one cotenant would constitute his lessee a cotenant of the others and as such he would be liable for the rents and profits received by him ; 7 but such co-owners would not, generally, be entitled to a lien on the share of such cotenant or his lessee, except for expenditures acquiesced in by him and for necessaries to the common undertaking.8 Tenants in common of a mine are seised of each and every part of the estate, in common, but it is not in the power of any one to convey the whole of the estate without the authority of the 1 Stoughton v. Leigh, 1 Taunt. 402. In Billings v. Taylor (10 Pick. 460), a quarry was located on a four-acre tract; it was considered as an open quarry as to the whole tract and dower admeasured accordingly. 2 Crouch v. Puryear, 1 Rand. (Va.) 258. 8 Crouch v. Puryear, supra. 4 Dickin v. Hamer, 1 Drew. & Sm. 284. 5 Black v. Elkhorn Mining Co., 163 U. S. 445; Duncan v. Phosphate Co., 137 U. S. 647. 6 Boston Franklynite Co. v. Condit, 19 N. J. Ch. 394. Barnum v. London, 25 Conn. 137. 8 Kay v. Johnston, 21 Beav. 536; Scott v. Nesbit, 14 Ves. 445; MacSwinney, p. 112. other cotenants, or the whole of any distinct portion thereof.1 And since different portions are as distinctively the property of the entire ownership, as much as the whole property, it is doubtful if a contract for a lease by any cotenant, without the concurrence of his other tenants, could be enforced even as to such tenant,2 although a conveyance void, as to the other tenants, without their affirmance, because of the prejudice to their rights, would be valid where affirmed by them,3 and a conveyance by one would, ordinarily, be upheld so far as the grantor alone was concerned. As in the case of co-tenancies of other properties each co-owner has the right to open and work the mine 5 and unless there is some decisive act to show an ouster the possession of one cotenant of a mine inures to all.6 One cotenant in possession receiving rents and profits from the mine is liable to an accounting to his cotenants, however, for the share due each, and for a failure to so account an appropriate action can be maintained.7 1 Murray v. Haverty, 70 Ill. 318. 2 Price v. Griffith, 1 DeG. M. & G. 80; Hartford &c Co. v. Miller, 41 Conn. 130; Adams v. Iron Co., 7 Cush. 361. 3 Hartford &c. Co. v. Miller, supra. 4 Boston F. Co. v. Condit, 19 N. J. Ch. 394. 5 As to cotenant's right to possession and use of common property, see: Job v. Patton, L. R. 20 Eq. 84; McCord v. Oakland Q. S. Min. Co., 64 Cal. 134 ; Morganstern v. Thrift, 66 Cal. 577; Conrad v. Saginaw Co., 54 Mich. 249; Anaconda Co. v. Butte Co., 17 Mont. 519; Gaines v. Green Pond Co., 33 N. J. Eq. 603; Angier v. Agnew, 98 Pa. St. 587; Early v. Friend (Va.), 16 Gratt. 21; MacSwinney Mines 110; Lindley, Sec. 789; Rogers (2 Ed.), 267; Bainb. (1 Am. Ed.) 53; 20 Am. & Eng. Enc. Law. (2 Ed.), 787. One cotenant must contribute to expense of co-lessee upon leasehold. Beck v. O'Connor, 21 Mont. 109; 53 Pac. Rep. 94. And a refusal will render operating tenant liable only for royalty and not for a tenant's interest to his recalcitrant co-tenants. Schreiber v. Nat. & C. Co., 21 Pa. Co. Ct. 657. 6 Van Valkenburg v. Huff, 1 Nev. 142; Mallett v. U. S. M. Co., 1 Nev. 194. Job v. Patton, supra; Early v. Friend, 16 Grat. Love, 17 Cal. 234; Barnum v. London, 25 Conn. 137. Grubb's App., 62 Pa. St. 252; B. & W. L. C. 275. (Va.) 21; Abel v. But see contra, § 25. Reversioner or remainderman. A reversioner or remainderman is not entitled to work a mine to the prejudice of the tenant for life or years 1 or to the injury of a subsequent remainderman.2 His rights are to the remainder only and he cannot anticipate their enjoyment, without a grant of the right by the tenant of the particular estate.3 For all ore severed by a remainderman the tenant of the particular estate would be entitled to an accounting, and as to ore removed from land subject to dower, before assignment, although not then entitled to an interest in the land, as such, the widow could compel an accounting for a third of the produce therefrom so converted.5 And it is doubtful if such future owner would be entitled to work during the existence of the preceding estate, even though the tenant thereof was prevented from working thereon, for this would not vest any such right in the remainderman prior to the vesting of his estate, and if there was a remainder over after termination of his estate he could not then work, even with the consent of the first tenant, to the prejudice of his remainderman.7 1 Dickin v. Hamer, 1 Dr. & Sm. 295; Bishop v. Bishop, 10 L. J. Ch. 302. 2 Fleming v. Carlisle, 1 L. C. 786. 3 Dickin v. Hamer, supra; MacSwinney., p. 65. Bishop v. Bishop, supra; Dickin v. Hamer. 5 Dickin v. Hamer, supra; MacSwinney, p. 65. 6 Dickin v. Hamer, 1 Dr. & Sm. 295; MacSwinney, pp. 48, 51. * Evelin, Ex parte, 2 Freem. 53; Fleming v. Carlisle, 1 L. C. 786. |