agreement to share the losses,1 and as this is really the true type of a partnership contract, when persons are so engaged, or after the lapse of the time when the right to share the profits should accrue, as the liabilities are but incidental and necessary to the enjoyment of the profits,2 such persons will generally be considered as standing on identically the same footing as ordinary partners.3

§ 333. Partners distinguished from co-owners. .Tenants in common, or joint tenants of a mine, may or may not be partners; but it is almost impossible for co-owners of a mine to work it themselves without becoming partners, if not in the mine itself, in the profits of the mine, at least, and they are regarded rather as partners in trade, than as mere tenants in common in the land.4 If the owners are partners both in the profits and in the mine itself, then their mutual rights and obligations are determined by the laws governing a mining partnership; 5 but if the owners are not partners, either in the mine or in the profits, their respective rights and obligations are determined by the law of co-ownership, and, in this case, each and every co

1 Philipps v. Sewall, 11 M. M. R. 419. But the contrary may be shown, notwithstanding this would lead to a presumption that the relation existed.

Supra.

2 Phillipps v. Sewall, supra; Musier v. Trumpbour, 11 M. M. R. 260; Bybee v. Hawkett, 11 M. M. R. 594; Dougherty v. Creary, 1 M. M. R. 35; Nolan v. Lovelock, 9 M. M. R. 360.

3 Lindley Part., pp. 20 to 62; Musier v. Trumpbour, 11 M. M. R. 260; Bybee v. Hawkett, 11 M. M. R. 591; Crowshay v. Moule, 11 M. M. R. 223; Nolan v. Lovelock, 9 M. M. R. 360; MacSwinney on Mines, p. 115. 4 Wade's Am. Min. Laws, p. 213; Duryea v. Burt, 28 Cal. 569; B. & W. L. C. 489; Skillman v. Lachman, 23 Cal. 198; Duryea v. Burt, 11 M. M. R. 395; Dougherty v. Creary, 1 M. M. R. 35; Nolan v. Lovelock, 9 M. M. R. 360.

5 Lindley on Part., 51, 54; Bradley v. Harkness, 11 M. M. R. 389. 6 Lindley on Part., 54; Bradley v. Harkness, supra. "The parties

2

owner in the mine is entitled to an account of what the other co-owners have received from the mine, over and above their individual shares. Each owner can transfer his interest in the mine, without the consent of the other co-owners, or is entitled to have his interest in the mine partitioned from that of the other tenants; but further than this the rights and obligations of different co-owners in a mine, are governed substantially by the general rules of law applying to mining partnerships, and their rights would be adjusted accordingly, not only in conflicts between themselves, but also in disputes with third parties.

§ 334. Same - Co-owners partners in profits only. Where the co-owners in a mine work the mine jointly but are partners in the profits of the mine only, the relation established is somewhat peculiar in its effect, for while as to third persons their obligations would perhaps be determined according to the general law of partnership, the law applying to their true condition would determine in conflicts as between themselves, and their mutual rights and obligations would be governed partly by the laws of

owning a mining claim as tenants in common, and engaged in working the same, are partners." Dougherty v. Creary, 30 Cal. 290; M. M. D. 266.

1 Lindley Part., supra; Settembre v. Putnam, 30 Cal. 490; Blan. & Weeks Ld. Cas. 515; MacSwinney, p. 113; Bentley v. Bates, 4 Y. & C. Eq. Ex. 182; Roberts v. Eberhardt, Kay, 148.

2 Kahn v. Central Smelting Co., 11 Rep. 249 (S. C. U. S.); Dougherty v. Cleary, 30 Cal. 290; Decker v. Howell, 42 Cal. 636; B. & W. L. C. 508; Wade Am. Min. Laws, p. 213; Skilman v. Lackman, supra.

8 Hughes v. Devlin, 23 Cal. 501; B. & W. L. C. 311.

4 Decker v. Howell, 42 Cal. 636; Wade's Am. Min. Laws, 213 et sub.; Nolan v. Lovelock, 9 M. M. R. 360. This distinction is drawn between cotenancy and partnership in the following cases: Vietti v. Nesbitt, 22 Nev. 390; Cline v James, 101 Fed. Rep. 737; Grubb's App., 66 Pa. St. 117; 20 Am. & Eng. Enc. Law (2 Ed.), 787, 788.

partnership and partly by the laws of co-ownership.1 The following are perhaps the principal propositions of law applying to parties occupying such a position: (1) Each co-owner can transfer his interest in the mine and partnership, without the consent of the other coowners.2 (2) Each co-owner can maintain an action for an accounting, without seeking a dissolution of the partnership. (3) In a dissolution of the partnership the mine must be divided between the several owners, unless it can be sold under a statute providing for a sale in lieu of dissolution.5 (4) A deceased partner's share in a mine, of which he was a partner, goes to his real and not his personal representatives.6 (5) In case of a dissolution the court can appoint a receiver and have the mine operated for the benefit of the co-owners.7 (6) The obligation of each co-owner to account to the others gives each partner a lien on the shares of his copartners for what is due them from the settlement.8

Sev

1 Lindley on Partnership, Sec. 54; MacSwinney Mines, p. 112. eral persons owning oil or gas together are cotenants, not copartners. Savings Bank v. Osborne, 159 Pa. St. 10. But see Brown v. Beecher, 120 Idem, 590. A mere agreement to divide the profits from the purchase and sale of lands does not constitute the parties copartners. Hughes v. Ewing, 162 Mo. 261; 62 S W. Rep. 465.

2 Decker v. Howell, 42 Cal. 636; B. & W. L. C. 508; Lindley Part., Sec. 56, p. 69; Bentley v. Bates, 4 Y. & C. Ex. 182.

3 MacSwinney Mines, p. 111; Crowshay v. Maule, 1 Swanst. 517. For partnership in mines in land held by partners as cotenants, see Patrick v. Weston, 22 Colo. 45; 43 Pac. Rep. 446.

4 MacSwinney Mines, pp. 114-117; Wade's Am. Min. Laws, p. 212, § 151; Kahn v. Central Smelting Co., 102 U. S. 641.

5 Lindley on Part. 498; MacSwinney Mines, pp. 139, 141. See Chapter, Partition of Mines.

6 Ante, idem.

Jeffries v. Smith, 1 Jac. & W. 298. See also Blan. & Weeks Ld. Cas. 568.

8 Lindley on Part. 54, 56, 498. & M. 45; 11 M. M. R. 247.

See also Fereday v. Wightwick, 1 R.

§ 335. Same Rights and remedies of co-owners. As before explained, the rights and remedies of co-owners differ materially from the corresponding rights and remedies of copartners in a mine.1 Where the co-owners are partners in the profits any one of the several co-owners may maintain an action for an accounting, and exercise the partner's right of lien, the same as though they were copartners in the mine." But in order to arrive at a thorough understanding of the law governing the relative rights and obligations of co-owners in a mine, it is necessary to notice the distinction in the law, applying to cases where the interest extends to the land itself, and cases where the co-owners have but a chattel interest in the mine.3 The statute, (4 Anne, C. & B., § 27) applies, where the ownership extends to the land, and gives one co-owner the right to maintain an action for an accounting against his other coowners. At common law, however, one co-owner of a chattel interest had no recourse against his co-owners, except where the common property was actually destroyed, for the reason that there was no contractual relation between them upon which such liability could be predicated.5

"Tenants in common

1 Ante; Bradley v. Harkness, 11 M. M. R. 389. of a mine, working it together, and, after paying expenses, dividing the profits in proportion to their interests in the claim, are mining partners." Nolan v. Lovelock, 1 Mont. 224; M. M. D. 261, 266.

2 Lindley Part., p. 109, § 64; Wade Am. Min. Laws, § 151, p. 212; Kahn v. Cen. S. Co., 11 Rep. 249; cited supra. But see MacSwinney, p. 112; Early v. Friend, 14 M. M. R. 271.

3 See Lindley, supra. In a mere cotenancy, there is no resulting trust relation. Tnck v. Downing, 7 M. M. R. 84. A single tenant cannot mine. Murray v. Haverly, 14 M. M. R. 325. Or sell any definite part of the common property. Boston Co. v. Condit Co., 14 M. M. R. 301; Marsh v. Holley, idem, 308. .

4 Lindley on Part., supra. For measure of accountability in such case, see Graham v. Pierce, 14 M. M. R. 308.

5 Ante, idem. But see Gore v. McBrayer, 18 Cal. 582.

But under the Roman law, a liability quasi ex contractu was predicated in such cases, and it was held that every coowner ought to account to the others for the profits received by himself, and to contribute with them to the expenses properly incurred for the common benefit; 1 and although the common law rule still continues unimpaired, courts of equity have adopted principles similar to those which obtained under the Roman law, and this mollifies the harshness of the common law rule.2

§ 336. Same-Equity's jurisdiction in such cases. Where mines are owned and operated by several persons in common, equity has jurisdiction similar to that exercised in cases of copartnerships, to adjust the rights of the several co-owners.3 Where there is a joint undertaking to work a mine a partnership arises, so far as the working is concerned, but it does not extend to the land. But where there is evidence which goes to show that the whole property was intended to be used in the business, then the partnership would extend to the land. Equity would, in such case, on the proper showing, if the property could not be worked profitably to the several owners, appoint a receiver, take an accounting, and having once exercised jurisdiction, proceed to adjust the rights of the contending claimants.'

1 See authorities, supra; Early v. Friend, 14 M. M. R. 271.

2 Lindley Part., pp. 109 and 110. Cotenant is liable for all that he receives over his share. Huff v. McDonald, 14 M. M. R. 262.

3 Bainb. on Mines, 116.

But the legal title must be first established.

North Pa. Co. v. Snowden, 14 M. M. R. 294.

4 Foster v. Hale, 5 Ves. 308; B. & W. L. C. 561; Story Part., § 93; 3 Kent, 37, 38; Dyer v. Clark, 5 Metc. 562.

5 "The peculiar fitness of a court of equity to regulate the affairs of tenants in common in mines, has never been questioned. (Adams v. Briggs Iron Co., 7 Cush. 361; Bainb. on Mines, 116.) Where there is a difficulty in making partition of a mine, the court will, under proper