metals or to destroy fortifications," and in its primary meaning no doubt referred to all underground excavations of the character named. Gradually,2 by transitions, it was used, more particularly, to designate excavations made to obtain ores and minerals 3 (and is still used by some authors, lexicographers and judicial tribunals in this sense), but the

1 Encyclopædia Metropolitana; MacSwinney on Mines, p. 3.

2 "The primary meaning of the word, standing alone, is an underground excavation." Encyclopædia Britannica; Enc. Metropolitana; Mid. R. Co. v. Haunchwood &c. Co., 20 Ch. D. 555; MacSwinney, supra. Legal enactments of different countries have caused various significations. In France and Belgium the substance mined governs the name applied, while in England it is the character of the excavation. Enc. Brit. Hence, what might be a quarry in France is liable to be a mine in England, and vice versa. (This illustrates the impossibility of giving any positively correct definition, as well as other uncertainties, caused by the mutations of laws and the customs of people.) "A pit being dug, to be used when completed, as the shaft of a coal mine, to be opened, is not a coal mine, within the meaning of the statute." Springside Coal Mine Co. v. Grogan, 53 Ill. App. 60 (1892).

3 Encyclopædia Metropolitana; Enc. Brit.; MacSwinney, supra; Bell v. Wilson, 10 Mor. Min. Rep. 415; Darvill v. Roper, Idem, 406.

Bouvier defines a mine as a pit or excavation made for the purpose of obtaining mineral, but this definition is too broad, in leaving out of the question the existence of mineral, and too narrow in confining the term to pits made "for the purpose of obtaining mineral" only, for whatever the purpose, if ore is found and mined, the excavation would be held a mine. Should ore be discovered in a well, and subsequently mined, it would be none the less a mine, because the original purpose of the excavation was to obtain water instead of mineral. But many have adopted this definition. Bouv. Law Dict. 180; Ross v. Wainman, 14 M. W. 859; 8. c. 2 Exch.800; 15 L. J. Exch. 97; Tomlin's Law Dict.; Webster's Dict.; Rexv. Boettel, 3 Barn. & Ad. 424; Rexv. Alderbury, 1 East, 534. See Darvillv. Roper, 3 Drew. 294, where the meaning of the term was held to depend on the mode of obtaining the mineral. Micklethwait v. Winter, 5 Eng. Law & Eq. 526; 20 L. J. Ex. 313; Shaw v. Wallace, 1 Dutch. (N. J.) 453. The following late cases also seem to hold an excavation a mine, although mineral is not discovered: Morrow v. Flimby Coal Co. (1898), 2 Q. B. 599; McCurtin v. Grady, 1 Ind. Terr. 107; Westmoreland Coal Co.'s App., 85 Pa. St. 344. But the weight of authority is in accord with the deflnition in the text. See MacSwinney, supra, and cases cited; also 20 Am. and Eng. Enc. Law (2 Ed.) 682.

derivative history of the word shows that its use has been limited of later years, to apply, more exclusively; to the excavation made therefor and the place from which the mineral is taken.1 The great weight of modern opinion limits the meaning of the word to excavations yielding mineral.2 Hence, the definition a pit, or excavation, yielding mineral, both elements of which i. e., an excavation and mineral-are essential to constitute a mine.

§ 2. The pit or excavation. - Under the various definitions of a mine, the pit or excavation is a necessary element. The word "mine" includes not only the ore in place, but the space caused by its removal and the passageway to obtain it.3 The excavation which, in conjunction with the

1 "The word includes the stratum of mineral, as well as the excavation made to mine it." Mid. R. Co. v. Haunchwood Co., 20 Ch. D. 555, per Kay, J.; Spencer v. Scurr, 10 M. M. R. 388; Westmoreland's Co. App., 10 Id. 394; Springside Coal Co. v. Grogan, 53 Ill. App. 60; Wharton's Law Lex. and citations; MacSwinney on Mines, Chap. I. "Colliery," probably from "coalery," is but a particular kind of mine-a coal mine, or place where coal is dug.- Webster, Worcester, Johnson. It is not confined to any one vein or seam of coal but extends to all worked from the same "mine," or "colliery." MacSwinney, p. 25; Hodgson v. Field, 7 East, 620; Carey v. Bright, 58 Pa. St. 70.

2 Bainbridge on Mines, 1, 3; MacSwinney, pp. 1 to 4; Bell v. Wilson, L. R. 1 Ch. App. 303; Spencer v. Scurr, 31 Beav. 334; Darvill v. Roper, 3 Drew. 294; Cleveland v. Mayrick, 37 L. J. Ch. 125; Brown v. Chadwick, 7 Ir. C. L. 101; King v. Alberbury, 11 East, 534; Haddock v. Commonwealth, 103 Pa. St. 243; Forbes v. Gracey, 94 U. S. 762; Shaw v. Wallace, 25 N. J. Law (Dutch.), 462; Springside Coal Co. v. Grogan, supra; Pierce v. Tidwell, 81 Ala. 299; Westmorland's Co.'s App., 85 Pa. St. 344; 6 Amer. and Eng. Enc. of Law, 532; 15 Idem, 504. But in Illinois a mine prepared for work, although no ore had been removed, has been held a "mine," under the act governing inspection and safety of miners. Coal Run Co. v. Jones, 19 Ill. App. 365. The case of Coal Run Co. v. Jones, 127 Ill. 379, reverses 19 Ill. App. 365.

3 Brown v. Chadwick, 7 Ir. C. L. Rep. 108; Tucker v. Linger, 21 Ch. D. 36; Bainbr. on Mines, 2-3; MacSwinney, p. 2. The right of property in the mine extends as well to the vacuum from which the ore is removed as to the ore in place. Wharton's Law Lex.; MacSwinney, supra.

mineral, will justify the name of mine, is generally begun from the surface of the soil only, by means of a perpendicular shaft or lateral drift, so that a roof is left overhead and the work prosecuted by means of a pit or tunnel.1 The mine, however, includes the drift as well as the shaft or entrance to the same, for both are excavations made for the purpose of obtaining minerals.2 In some classes of gold mines the excavations consist only in removing a portion of the surface,3 while in lead, zinc and coal mines the mining is prosecuted principally by drifting for the mineral, with the excavation entirely beneath the surface.1 Hence, in determining whether a given excavation is a mine or not, regard must be had not only to the nature of the excavation or mode of working, but also to the chemical or geological character of the formation.5 Neither the excavation without the mineral, or the mineral in place without the excavation, could be properly termed a mine.6 However, the term mine applies as well to excavations from which metallic ores are taken, as those from which other mineral substances are obtained; 7 but pits from

1 Darvill v. Roper, 3 Drew. 299; Bell v. Wilson, 2 Dr. & Sm. 399. This is essentially true in lead, coal and zinc mines, but not so in placer mines. 2 Bouv. Law Dict. 185; 15 Amer. & Eng. Enc. Law, p. 501.

2 Shaw v. Wallace, 1 Dutch. (N. J.) 453, 462; Bell v. Wilson, supra. 3 2 Bouv. Law Dict. 180; Am. & Eng. Enc. of Law, Vol. 15, p. 501; Jersey v. Mott, 22 Q. B. D. 555.

4 Authorities, supra; Ind. R. Co. v. Haunchwood, 22 Ch. D. 552; Loosemoore v. Tiverton &c. Ry. Co., 22 Ch. D. 25; Mid. Ry. Co. v. Miles, 33 Ch. D. 632; Dixon v. Cal. R., 5 App. Cas. 820.

5 Bainbridge on Mines, 2-3; Darvill v. Roper, 3 Drew. 294; King v. Durford, 2 Ad. & El. 568; s. c. 4 Nev. & Man. 349; Cleveland v. Mayrick, 16 W. R. 105; MacSwinney on Mines, p. 4.

6 Authorities above; Darvill v. Roper, supra; Bell v. Wilson, supra. But see Jacob's Law Dict. for a definition at variance with the text which MacSwinney declares to be inaccurate, MacSwinney, p. 4, foot note. 7 Ross v. Wainman, supra; Micklethwait v. Winter, supra; Midland Ry. Co. v. Checkley, Law Rep. 4 Eq. 19. But see Bell v. Wilson, 1 L. Rep. Ch. App. 303; 2 Drew. & Sm. 395; Hext v. Gill, L. R. 7 Ch. App. 699; 3 Mook En. Rep. 574.

which stone only is taken are more frequently and properly referred to as quarries.1 And this suggests the legal distinction between a mine and a quarry.

is usually defined to be a place where stone is dug; 2 it is perhaps derived from the French word, "quarriere," said by lexicographers to mean a place where stone is quadrated, or cut in squares. This is still the popularly accepted meaning of the word. Hence, a quarry is a place where stone is dug; the pit, from which the stone is removed, as well as the surrounding surface where the stone is dressed.4 Some writers who are of unquestionable authority state that the true test of determining whether a given excavation is a mine or quarry is solely the mode of working.5 MacSwinney says the sole question is "whether you are working so as to remove the surface," with or without leaving the roof; that if the surface is removed it is a quarry; 6 if a roof is left it is a mine. This, however, is not found to be an

1 Rex v. Sedgley, 10 M. M. R. 390, is an exception to the rule stated in the text, for in this case stone, taken at a great depth, raised by shafts, from which the stratum was worked as other ore, was held to be a "stone mine." But see Hedley v. Fenwick, 3 H & C. 349; Midgley v. Richardson, 14 M. & W. 595; Mansfield v. Crawford, 9 Ir. Eq. 271; Rex v. Dunsford, 4 Nev. & Man. 349.

2 Webster's Dict.; Johnson's Dict.; Worcester's Dict.; Wharton's Law Lex.; Bouvier's Law Dict.; Anderson's Law Dict.; MacSwinney on Mines, p. 3.

3 Encyclopædia Metropolitana; Enc. Brit.; Bainbridge on Mines, 2-3; 15 Amer. & Eng. Enc. Law, p. 504 and cases cited.

4 Bainbridge on Mines, 2-3; MacSwinney on Mines, 3-4; Jones v. Cawmorthen Co., 5 Ex. D. 95.

"The question is whether you remove the surface; directly you cease to excavate from the surface, it ceases to be a quarry.' MacSwinney, p. 4; Darvill v. Roper, 3 Drew. 299; Cleveland v. Mayrick, 16 W. R. 105; Bell v. Wilson, 2 D. & S. 399; Brown v. Chadwick, 7 Ir. C. L. Rep. 188; Listowell v. Gibbings, 9 Ib. 233; cited by MacSwinney, supra. 6 Idem.

• Idem.

accurate test, as gold is mined in the United States in places where only the surface is removed, and this, according to Mr. MacSwinney, would be a quarry, yet it is called mining. Neither would the character of the geological formations of the substance removed alone be found a reliable test for distinguishing a mine from a quarry, — as a place where clay,1 limestone 2 and freestone 3 are obtained by underground workings has been judicially held to be a mine, but the true distinction lies in the different meaning of the terms themselves and the mode of working, or nature of the excavation, as well as the character of the substance removed, one or all of which may be noted as the distinguishing features between a mine and a quarry.5 However, the same general. rules of law apply to quarries and wells for oil, that govern other species of mining,6

1 Rex v. Brettle, 3 B. & Ad. 424; Rex v. Brown, 8 East, 528

2 Rex v. Sedgley, 2 B. & Ad. 65; 10 Mor. Min. Rep. 390.

3 Rex v. Dunsford, 2 A. & E. 568.

4 Ante. Idem.

5 Rex v. Alderbury, 1 East, 534; Brown v. Chadwick, 7 Irish Law Rep. (N. s.) 101; Hext v. Gill, L. R. 7 Ch. App. 699; Darvill v. Roper, 3 Drew. 294; Countess of Listowell v. Gibbings, 9 Irish L. Rep. (N. s.) 223; Rex v. Sedgley, 2 Barn. & Ad. 65; Rex v. Brettle, 3 B. & A. 424. Rex. Dunsford, 2 A. &. E. 568; Astroy v. Ballard, 2 Mad. 193; Whether an excavation is a mine or a quarry is a question of fact. Blan. & Weeks Ld. Cas., p. 20. "The distinction between a mine and a quarry is, that in a quarry the surface is removed, and in mining the beginning only is on the surface, and a roof is left overhead." Darvill v. Roper, 3 Drew. 298; s. c. 24 L. J. Ch. 779; see Cleveland v. Mayrick, 37 L. J. Ch. 125; s. c. 17 Law Times R. (N. s.) 238; Brown v. Chadwick, 7 Irish C. L. 101; M. M. D. 234 "A limestone working, where the stone is taken out through shafts and tunnels, is a mine." Rex v. Sedgley, 2 B. & Ad. 65. The distinction between mines and quarries stated. Listowell v. Gibbings, 9 Irish C. L. 223; M. M. D. 234, 334.

6 Ante, idem. As to stone, see Micklethwait v. Winter and Ry. Co. v. Checkley, supra. Oil is a mineral. Thompson v. Noble, 3 Pitts. 201; Kier v. Peterson, 41 Pa. St. 357; Dark v. Johnson, 55 Pa. St. 164. So is china clay. Hext v. Gill, 7 Ch. App. 609. And asphaltum. Gesner v. Gas Co., 1 James (N. s.) 72; 2 Allen (N. B.), 595. Limestone is not. Copp's Min. Dec., pp. 194, 297.