who enters for the purpose of conducting mining operations can exercise, in regard to the demised premises, any privileges which are reasonably necessary for carrying out his mining operations. He can follow the same vein for this purpose and can make new shafts, roadways, and such other improvements as are necessary for the handling of the ore, and so long as he conducts his operations in a reasonable and workmanlike manner, he cannot be held liable for waste.1

At common

§ 504. Right of lessee at common law. law the lessee of land containing stones or minerals and precious metals, although he did not have the right to open new mines, unless he entered with a grant for this purpose, or to sell the ore to the public, had a perfect right to use so much of the mineral as he found necessary for his own use, and such reasonable use of the same would not subject him to an action of waste.2 The tenant, for instance, could dig for gravel or clay, to be used by him in the reparation of the house, or could take such other mineral as he found necessary for his own immediate use for these or similar purposes, and in so doing he would not subject himself to an action for waste.3 But if he took an unreasonable quantity of mineral, or mined and excavated the same for purposes of sale to the public, and not for his own private use, or if he even broke the soil and removed

1 Clavering v. Clavering, 2 P. Wms. 388; Billings v. Taylor, 10 Pick. 460; Tiedeman R. P., supra; Lynn's App., 31 Pa. St. 45; Kier v. Peterson, 41 Id. 361; Irwin v. Covode, 24 Id. 162; Crouch v. Puryear, 1 Rand.

258.

2 Mitchell v. Dare, 6 Ves. 147; Hanson v. Gardner, 7 Id. 305b; B. & W. L. C. 819; Crouch v. Puryear, 1 Rand. 258; Moyle v. Moyle, Owen, 66. 8 See Co. Litt. 57; B. & W. L. C. 318; also Whitefield v. Bewit, 2 P. Wms. 240.

Moyle v. Moyle, supra; Blanchard & Weeks Ld. Cas. 319; Mitchell v. Dare, 6 Ves. 147; Hanson v. Gardner, 7 Ves. 305b.

the ore for other than such reasonable purposes, or without a previous authority from the owner, as the ore is a part of the corpus of the land, a removal thereof would tend to the destruction of the estate and subject the lessee to an action for waste.1

§ 505. Same Wrong consists in opening soil. The gist of the offense of waste is the wrongful unauthorized penetration and opening of the soil, in the first instance, by the lessee or those under him.2 It could not be predicated against a lessee, in under a mining lease, where he is given the right to mine and sink shafts by the lease and take the produce from the mines, for here it is the evident intention that he should have the right to break the soil and mine as a necessary incident to his tenancy; nor could the tenant be considered guilty of waste where he simply continued to mine pits and shafts already opened at the commencement of his tenancy, for, in such case, the minerals would be a part of the annual profit of the land. But where a tenant, without the express right to mine, enters upon the premises and opens new mines, or, having the right to mine such mines as are open only, proceeds to develop and open new ones, he would thereby render himself liable for waste to the owner of the land, for, being an act tending to the destruction of the inheritance, it could

1 Whitfield v. Bewit, 2 P. Wms. 240: Co. Litt. 51b, 17 E. 3, 7, 9-11, et sub.; 2 Rolls. Abr. Waste, 816; Crouch v. Puryear, 1 Rand. 258.

2 Taylor's Land. & Ten., § 346, p. 405; Coke Littleton, 54b, 57; B. & W. L. C. 318; Owings v. Emery, 6 Gill. 260.

3 Crouch v. Puryear; s. c. B. & W. L. C. 319; 1 Rand. 258; Moyle v. Moyle, Owen, 66.

4 Co. Litt.; Moyle v. Moyle, supra; Taylor's Land & Ten. 346, p. 405. et sub.; Westmoreland Co.'s App. 10 M. M. R. 222. As to dowress' right to mine, see Crouch v. Puryear, 15 M. M. R. 113. And as to right of lessee to quarry stone, see Elias v. Snowden Slate Co., 15 M. M. R.

only be rightfully committed under authority from the owner thereof.1

What

considered

66

§ 506. Same new mine." Although it would seem a very easy matter, at first blush, to determine what should be considered a new mine," the decisions on the subject have given rise to some conflict as to how the term should be understood.2 The difficulty of the courts to reconcile the different decisions has apparently arisen from a failure to properly distinguish between a mine and a vein or seam, and in theory the proper solution would be to consider all operations in the old opening or continuations thereof, whether upon the same or different seams, as work upon the old mine and the development. of new seams by new openings as new mines, and some of the cases have adopted a rule similar to this.3 The early English cases, however, lay down a different rule from this and recognize in the tenant, as the right to follow the opened mines," the privilege of making new shafts and pits to reach the same vein, instead of being compelled to pursue the vein entirely underground from the old opening. This would seem to be giving the term,

"

1 See Co. Litt., 54b, where Lord Coke observes: "If a man hath land in which there is a mine of coals, or of the like, and maketh a lease of the land (without mentioning any mine) for life or for years; the lessee of such mines as were open at the time of the lease made may dig and take the profits thereof. But he cannot dig for any new mine that was not open at the time the lease was made, for that is waste; s. c. Blanchard & Weeks Ld. Cas., p. 318. A life tenant is not subject to impeachment for waste for removal of oil or mineral, either where the settlement authorizes such removal or the mines are open. In re Chayter's Set. (Eng. 1900), 69 L. J. Ch. 837; 2 Ch. 804.

2 Blanchard & Weeks Ld. Cas., p. 321; Mor. Min. Dig., p. 236, § 35.

3 Spencer v. Scurr, 31 Beav. 334; s. c. 32 L. J. Ch. 122; B. & W. L. C. 321.

4 Clavering v. Clavering, Mac. Sel. Cas. 221; s. c. 2 P. Wms. 388; B. & W. L. C. 321; Eq. Ca., Abl. 589; Mosely, 219.

"old opening," an interpretation exactly the contrary to the plain significance and meaning of the language used, and such a one as to almost abrogate the rule that gave rise to the distinction, which the term was intended to perpetuate, but like many of our modern case law precedents, the ancient jurists who promulgated this subtle opinion, bolstered it up by most worthy logic and reasoning, and only arrived at the conclusion, "on great consideration and much consulting.”1

§ 507. Right presumed in tenant to open mines. The law presumes a grant to the tenant of the right to open new mines and in the absence of proof to the contrary the court would find from this presumption that the mines were open at the commencement of the tenant's term, or that he had the right to open them, as the charge of waste could not be sustained without affirmative proof of the acts. But it does not follow from the fact that the courts would presume the right to open new mines on the part of the tenant that he would have such right in the face of actual proof of a want of such grant, and where the presumption is overcome by actual proof to the contrary, the right presumptively recognized would necessarily fall with the presumption.3

1 Clavering v. Clavering, supra. The apology by the court in this case was in the above language of the text. See also Findley v. Smith, 6 Mund. (Va.) 134.

2 Lynn's Appeal, 31 Pa. St. 44. And see as to presumption in connection with meaning of the term " new mine," Spencer v. Scurr, 31 Beav. 334, also B. & W. L. C. 321.

3 Astray v. Ballard, 2 Mod. 193; Reed v. Reed, 1 C. E. Green, N. J. Eq. 248; B. & W. L. C. 320. And see for proof of acts overcoming the presumption of a grant, Bartlett v. Phillips, 4 De G. & J. 414. A lease or license is matter of defense and need not be negatived by plaintiff. Rogers v. Coal River Co., 41 W. Va. 593; Davis v. Clark, 40 Mo. App. 515; 22 Enc. Pl. & Pr. 1111.

§ 508. Same How right affected by abandonment of mine. As before explained, it is the settled rule of the common law that a tenant of mining ground has the undoubted right to continue mining operations in mines already opened at the commencement of his tenancy and to take the proceeds therefrom, as a part of the profits of the land. The question now under discussion is the effect that abandonment or the length of time that the mine was idle would have upon this right, and a full understanding of the matter necessarily depends upon a clear conception of the distinction between opened and unopened mines as affecting the tenant's rights. A mine not idle for a period over a year or two before the tenant's possession would perhaps still be considered an open mine,1 but one not worked for a hundred years, or such great period, would not be an open mine, although the fact of a cesser of work for a shorter period, on account of the loss of profit, would not necessarily render the tenant liable in an action of waste, for a resumption of work at such a time as the ore could be profitably handled.3 From the above rule it will be seen that the tenant's rights and his resulting liability are made to depend, in a great measure, upon the period during which the mine was not worked as a circumstance showing its previous abandonment. As a matter of fact time is a very small circumstance in the proof of any abandonment, as the question depends rather upon the intention of the last owner. As this would be a capricious something on which to hinge the rights of the tenant in such cases, however, the impractica

1 Bagot v. Bagot; s. c. B. & W. L. C. 322.

2 Ante, idem.

3 Legge v. Legge, 32 Beav. 509; Baggott v. Baggott, supra; Blanchard & Weeks Ld. Cas. 322.