No rights can be initiated by a trespasser, and where land has been granted to private parties, others have no right to enter upon the land afterward and prospect for mineral.1

§ 431. Acts amounting to adverse possession. Acts of ownership, sufficient to constitute adverse possession, under the statute of limitations, must have reference to the mines, or mineral, as such, as distinguished from the surface of the soil.2 Executing a lease, and using stone and timber, at different times, during the statutory period, accompanied by payment of taxes, under color of title and claim of right, will constitute adverse possession.3 So will the quarrying of rock; burning of lime kiln and cutting of timber and building of sheds, continued for the statutory period. Adverse holding and user of a water right, for the statutory period; continuous, open and notorious possession for the statutory period, of a mining ditch or drain; open and notorious mining, although not in actual possession, and notorious, peaceful, adverse possession for the statutory period after severance of the mineral title, by the purchaser of the surface, would give a statutory title, although the vendor had, in the deed, reserved the title to the ore.8

6

§ 432. Acts not amounting to adverse possession.Temporary occupancy only, under color of a decree, with

1 Franceour v. Newhouse (C. C. N. D. Cal.), 40 Fed. Rep. 618; Wade, pp. 99-100 and cases cited.

2 Caldwell v. Copeland, 1 M. M. R. 189.

3 Calvin v. McCune, 1 M. M. R. 223.

4 Moore v. Thompson, 1 Idem, 221.

5 Davis v. Gale, 4 M. M. R. 604.

6 Campbell v. West, 1 M. M. R. 218.

7 Armstrong v. Caldwell, 13 M. M. R. 253.

8 House v. Palmer, 13 M. M. R. 104.

out a deed, would not amount to a disseizin, as the party whose title is lost, or remedy is barred, is entitled to stand on the letter of the statute and insist upon a strict compliance with its conditions.2 An owner of a mine who works the same as often as the custom of the country justifies and the nature of the business will permit, cannot be deprived of his property by the adverse claim of a tax purchaser; 3 no possession of the surface alone would be construed as a holding adverse to the mine owner, after severance of the titles; taking temporary supplies of coal, for fuel, would not be an adverse holding under the statute,5 nor could any possession be considered adverse that was not open and notorious, exclusive, hostile and continuous."

To

§ 433. Same With or without color of title. constitute an adverse possession, where there is no paper title, there must be an actual occupancy-a pedis possessio— or a substantial inclosure. Evidence of adverse possession, in such case, is always strictly construed, and to enable a trespasser to acquire title, by adverse holding, a permanent use and occupancy must be shown. But where the entry is rightful, or under claim and color of title, the same strictness of proof is not required, and adverse pos

1 Anderson v. Harvey, 7 M. M. R. 279. Wilson v. Henry, 1 M. M. R. 152.

3 Stephenson v. Wilson, 13 M. M. R. 408.

4 Arnold v. Stevens, 1 M. M. R. 176; Rich v. Johnson, Idem, 173; Hodgkinson v. Fletcher, same.

5 Jackson v. Stoetzel, 1 M. M. R. 228.

6 "No adverse possession can be acquired by secret mining." Hamilton v. Southern Nevada Mining Co., 15 M. M. R. 315; Crandal v. Woods (Cal.), 1 M. M. R. 604; McBee v. Loftis, 3 M. M. R. 222; Armstrong v. Caldwell, 13 M. M. R. 252.

7 Jackson v. Olitz, 5 M. M. R. 203; National Co. v. Powers, 1 M. M. R. 234, case of a squatter on patented mill site.

8 Ante, idem. MacSwinney on Mines, p. 41. Jackson v. Stoetzel, 1 M. M. R. 228.

session of a part only of a mine would be held a sufficient adverse holding of the whole.1

Mere

§ 434. Same Non-user alone not sufficient. non-user alone of mineral purchased, or excepted or reserved, in a sale of the land, will not extinguish the ownership, but to effect a title by adverse possession, there must be some overt and hostile acts, contrary to the rights of the owner. In England mere non-user will not divest a title, as against the rightful owner, nor are any presumptions indulged in as against such owner, by the fact of non-user, as the fact is recognized that mines are often purchased, without desire to exhaust them, but so held in reserve until other mines shall be exhausted, and,5 accordingly, non-user, coupled with a permissive expense by a surface owner, upon the mine, or minerals, without claim by the owner, has been held insufficient to overthrow the title of the mine owner."

§ 435. Same

ful.

When possession stealthy or wrongA trespasser, who works through into the land of an adjoining owner and extracts ore, can acquire no rights to such mineral by reason of his wrongful acts and could

1 Jackson v. Olitz, supra; McDowell v. McGinty, 10 Ir. L. R. 527; Wied v. Holt, 9 M. & W. 672.

2 "Purchase and exception are probably on a similar footing, as to non-user." MacSwinney, p. 528.

3 Smith v. Lloyd, 9 Exch. 562; Seaman v. Vawrey, 16 Ves. 392. "Nonuser of a mine reserved in a deed, will not, of itself, extinguish ownership." Marvin v. Brewster Iron Min. Co., 13 M. M. R. 40.

4 "Only by user or some unequivocal act of possession can a person who has excepted mines from a sale, be dispossessed by lapse of time." MacSwinney on Mines, etc., p. 528.

5 Crang v. Adams, 5 B. P. C. 588; Hodgkinson v. Fletcher, 3 Doug. 31; MacSwinney, p. 527.

6 MacSwinney, p. 527; Adair v. Shaftoe, 19 Ves. Jr. 156.

not defend, for such trespass, on the length of time he had continued to perpetrate such imposition, or claim title to the ore, even though he had continued his wrongful possession and working for the statutory period of limitation.1 Possession that will ripen into a title must amount to notice of a claim of ownership, and a possession by stealth, or secret mining, can never amount to adverse possession. Where the possession is wrongful, title would never be extended beyond the actual physical possession.,* and a title acquired, by wrongful possession, for the statutory period, as to one or more veins, or strati of ore, would not be extended, by implication, to any underlying veins, but would be limited to those where actual possession had obtained.5

§ 436. When possession of surface not adverse. The common law rule that whoever owns the surface of lands is entitled to all beneath the surface, has but a limited application to mining property, and especially where there is a double ownership in the property, or an ownership of the surface by one party, with the title to the minerals in another. It has been held that this doctrine could not be invoked to vest the title to a vein or lode which extended into a claim on its downward dip, but had its top or apex

1 Dartmouth v. Spittle, 19 W. R. 444; Ashton v. Stock, 6 Ch. D. 726; Wilkinson v. Proud, 11 M. & W. 33. See, contra, Williams v. Pomeroy Coal Co. (6 M. M. R. 95), where it is said: "Underground and unknown trespasses do not differ from other trespasses, and when recovery is barred, all consequences resulting therefrom are barred."

2 Moore v. Thompson, 1 M. M. R. 221.

3 Hamilton v. Southern Nevada M. Co., 15 M. M. R. 315.

4 McDowell v. McGinty, 19 Ir. L. R. 527; MacSwinney Mines & Min.,

p. 527; Dartmouth v. Spittle, 19 W. R. 527.

5 Low Moor Co. v. Stanley Coal Co., 34 L. T. (N. s.) 186, 189.

6 Montana Co. v. Clark (C. C. D. Mon.), 42 Fed. Rep. 626.

7 Tiedeman R. P., § 10, p. 11.

outside the limits of the claim, and the owner of such claim could not acquire a title to the vein or lode extending into his claim, by mere possession of the surface, even though the government had not granted such lode or vein to any one else.1 To constitute adverse possession of a mine or minerals the claimant must be in actual possession of the mine or minerals claimed and possession of the surface after a severance of the titles would not be such possession. An occupant of the surface who has not himself taken possession of the minerals could not acquire a-title thereto or bar the right of the owner of the minerals on account of the latter's failure to exercise the right to dig the same, for he has not himself been in adverse possession of such mineral.3 But if such surface owner, after severance, should reduce the mineral to his possession, or if he should continue, for the statutory period, to dig and search for such mineral, he would thereby reduce the same to his possession, and such adverse possession would vest in him

1 Montana Co. v. Clark, supra. See R. S. U. S., Secs. 2322 and 2336. "The statute provides that when two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection. The language here used is such that there can be little doubt that it refers to veins which unite in their downward course. There is another provision in the same section for cases where veins unite in crossing. This would only occur where one vein so far departs from the vertical as to pass within the side lines of an adjoining claim, in which the vein had less dip. So long as the veins are distinct, and can be separately followed, they cannot be said to unite. The statute is merely intended to prevent confusion. (Rev. Stat. U. S, § 2336.) Section 2322 of the revised statutes gives quite extensive privileges to the locator, both with reference to the exclusive enjoyment of the surface within his boundaries and the right to all veins or lodes therein included." R. S. U. S., 2336; Wade, p. 65.

2 Montana Co. v. Clark, supra; Hodgkinson v. Fletcher, 3 Doug. 31; Arnold v. Stevens, 1 M. M. R. 176.

3 Ante, idem. Caldwell v. Copeland, 1 M. M. R. 189; Rich v, Johnson, 1 M. M. R. 173.