§ 640. Same Title to minerals after severance. Where there has been a severance of the title to the mineral in place, from that to the surface of the land, the owner of the mineral title can maintain a suit to quiet title as against a subsequent grantee or surface owner who asserts an adverse claim and title to the mineral beneath the surface. And the case of mines or mineral titles furnishes an apparent exception to the rule that such remedy will not be granted where the adverse claim is void upon its face, for, as to a mine, or mineral title, an adverse claim will be canceled, although void upon its face. But because of the conditional nature of the property in oil and gas, in place, the legal title not becoming vested in the grantee under his deed, or lease, until a discovery and reduction of the mineral to his possession, it is doubtful if the grantee of oil or gas would have such a title, distinct from that of the surface owner, as to enable him to maintain a suit to quiet title as to such property, before it is reduced to possession, or, at least discovered, and as the property in the mineral would then be personalty, it is doubtful if the action could then be maintained.4 3 One § 641. By and against whom maintainable. tenant in common can maintain a suit to quiet title to a mining claim upon the public land of the United States, where his cotenant is asserting an adverse title to such "Where 1 Tenney v. Hatch, 19 Ky. L. Rep. 753; 41 S. W. Rep. 559. there has been a severance of the mineral title from that of the surface, and a subsequent grantee of the surface claims title, under a deed, to the mineral, an action will lie by the mineral owner, to quiet title to his property." Tenney v. Hatch, 19 Ky. L. Rep. 753; 41 S. W. Rep. 559. 2 Alleghany Oil Co. v. Bradford Oil Co., 86 N. Y. 638. 3 Lawson v. Kirchner, 50 W. Va. 344; 40 S. E. Rep. 344 (1902). 4 Ante, idem. And see section entitled "Nature of property in oil and gas." 6 9 4 7 11 claim, which he has purchased.1 A possessor of a ditch upon government land has been held entitled to the remedy against a judgment lien claimant; 2 heirs,3 or executors and administrators; the holder of a legal or equitable title; the purchaser of a tax title; a mortgagee, assignee or trustee 10 have been held capable of suing,1 and generally anyone holding a title or interest in real estate can bring the action.12 It is proper to make anyone a defendant, who is interested in the property, adversely to the plaintiff; 13 and any one claiming a legal or equitable title or interest can be made a defendant,14 including infants, 15 dower claimants, 16 heirs, 17 executors and adminstrators; 18 and it is even held that persons yet unborn, or con 1 Nesbitt v. De Lamars Nev. Gold. Min. Co., 53 Pac. Rep. 178; Ross v. Heintzey, 36 Cal. 313; 12 Mor. Min. Rep. 483; citing Leary v. Duff, 137 Mass. 147. And cotenants may, but need not, join as plaintiffs. Rogers v. Turpin, 105 Iowa, 183; 17 Enc. Pl. & Pr. 319. But see, 2 Head v. Fordyce, 17 Cal. 149; 12 Mor. Min. Rep. 470. contra, Eldridge v. Kuehl, 27 Iowa, 176. But see Blair v. Hemphil, (1900), 82 N. W. 501. 3 Jordan v. Fay, 98 Colo. 264. 4 Thorp v. Sampson, 84 Fed. Rep. 65. 5 Wehnman v. Conklin, 155 U. S. 314. 6 Wall v. Magnus, 17 Cala. 476. 7 Walker v. Converse, 148 Ill. 622. 8 Love v. Bryson, 57 Ark. 589. 9 Byles v. Rowe, 64 Mich. 522. 10 Fatjo v. Swasey, 111 Cal. 628; Ambler v. Leach, 15 W. Va. 677. 11 17 Enc. Pl. & Pr. 298. 12 17 Enc. Pl. & Pr. 301. Defendant cannot complain that only one cotenant is a party and has no interest in a portion of the property where he has none in any portion thereof. Nesbitt v. Gold Min. Co. (Nev.), 52 Pac. Rep. 609. 13 Thompson v. McCorkle, 136 Ind. 484; 17 Enc. Pl. & Pr. 320. 14 Bulwer Con. Min. Co. v. Standard Co., 83 Cal. 589. 15 Bailey v. Briggs, 56 N. Y. 407. 16 Linden v. Doltch, 40 Hun (N. Y.), 239. 17 Jordan v. Fay, 98 Cal. 264. 18 Thorpe v. Sampson, 84 Fed. Rep. 65. tingently interested, are bound by a decree, when they have been properly represented and protected.1 But it is always necessary that the defendant should have an adverse claim or interest to that of the plaintiff; 2 and because the adverse claim is wanting in such cases, it has been held impossible for an heir to maintain the suit against the "unknown heirs" of his ancestor, for an heir to sue the administrator of his ancestor, as to a title of such ancestor, or for a landlord to sue his tenant, during the term, as to an adverse title purchased by the tenant,5 for the reason that in all these cases there could be no adverse claim to the plaintiff, or if there was, the claimant would be estopped from asserting it. § 642. Same Between lessor and lessee. . While a lessor cannot maintain a suit against his lessee, during the term, to quiet a title that the lessee may have purchased," 1 Loring v. Hildreath, 170 Mass. 328. And see, generally, this title, 17 Enc. Pl. & Pr. 322. 2 Ante, idem. 3 Cashman v. Cashman, 123 Mo. 647. 4 Jordan v. Fay, 98 Cal. 264; Tyroon v. Hunton, 67 Cal. 325. Van Winkle v. Hinkle, 21 Cal. 342; 17 Enc. Pl. & Pr. 322. But see Stewart's App., 78 Pa. St. 88; 12 Mor. Min. Rep. 491. In a suit to quiet the title to a mining claim it is not necessary to allege the citizenship of the plaintiff, notwithstanding certain aliens are prohibited the benefit of the laws of Idaho (Sess. Laws 1899, p. 70). Buckley v. Fox (1902), 67 Pac. Rep. 659. A judgment debtor can bring a suit to quiet title against a purchaser of his mining claim, at execution sale, after receiving notice from such purchaser to quit and surrender possession to her. Lovelady v. Burgess, 32 Oregon, 418; 52 Pac. Rep. 25. But under the Missouri statute (R. S. Mo. 1899, § 1025), a foreign mining corporation that has not filed a copy of its charter or articles in the State Secretary's office and complied with the statute cannot maintain a suit in the State to quiet the title to land there situated. Dunnaway v. Day (1901), 163 Mo. 415. But leasing land, by a mining corporation, is not "doing business" in Missouri. Coal & Mining Co. v. Ladd, 160 Mo. 435. 6 Van Winkle v. Hinkle, 21 Cal. 342; Lile v. Rollins, 25 Cal. 438. since such title could not be asserted against the lessor, yet if the lessee should quit and abandon his lease, after it had been placed of record, the lessor could then maintain a suit to have the same canceled, as a cloud upon his title, as he would have no other adequate remedy at law.1 And the action will also lie against the assignee of the original lessee, where there has been an abandonment of the lease, or by a lessee against a subsequent lessee, claiming under a second lease from the same lessor; 3 and upon a recovery and cancellation of the lease by the lessor or landowner, the lessee would not be entitled to compensation or reimbursement for expenses or developments made while he was conducting mining operations under the lease. But forfeitures are regarded with such odium in equity, that it will never lend its aid to enforce the terms of a contract working a forfeiture,5 and where the only basis of the lessor's cause of action is a forfeiture of his rights by the lessee, relief would be refused by the chancellor; the lessor would be confined to his action of ejectment and upon the issue of the forfeiture the lessee would be entitled to a jury trial.' 6 1 Crawford v. Ritchey, 43 W. Va. 252; 27 S. E. Rep. 220. Under a twenty-year oil and gas lease, a failure to bore a test well for seven years was held such conclusive evidence of abandonment by the lessee as to justify the cancellation of the lease as a cloud on lessor's title. Crawford v. Ritchey, supra. 2 Allen v. Indiana Oil &c. Co. (Ind. 1901), 60 N. E. Rep. 1003. 4 Detlor v. Holland, 57 Ohio St. 429; 49 N. E. Rep. 690; 40 L. R. A. 266, where the expense of drilling wells for oil and gas was held to fall upon lessee, by reason of his abandonment. Idem. 5 Livingston v. Tompkins, 4 Johns. Ch. 415. 6 Messersmith v. Messersmith, 22 Mo. 369; Livingston v. Tompkins, 4 Johns. Ch. 415. Ante, idem. Stewart's App., 78 Pa. St. 88; 12 M. M. R. 491; Buck . Justice Min. Co., 58 Fed. Rep. 827; La Cross v. Wadsworth 56 Mich. § 643. The adverse claim or title. The Supreme Court of Massachusetts has held any claim or title "which may be vexatiously or injuriously used against a party, after the evidence to impeach or invalidate it is lost," a proper subject for relief by bill to quiet title.1 Generally any description of claim, or assertion of title, against the legal or equitable owner or possessor of real estate, likely to result in litigation or loss to him, is a proper subject for relief by such a remedy.2 And if the existence of such an interest is a cloud upon the title of the plaintiff, the court will grant him relief, although such adverse claim may not have been actually asserted by the defendant, prior to the institution of the suit. But the claim or title of the defendant must, in every case, be adverse to that of the plaintiff. The owner of the fee can quiet a claim affecting either an estate for years,5 or the remainder, for such claims are adverse to his claim and title; but a tenant for life, or years, could not quiet a 421. But it has been held that a suit will lie to cancel a forfeited lease, as a cloud upon the plaintiff's title. Nickerson v. Canton Marble Co., 35 N. Y. App. Div. 111; 54 N. Y. Supp. 705. 1 Martin v. Graves, 5 Allen, 601; cited and approved in Stewart's App., 78 Pa St. 88; 12 Mor. Min. Rep. 491; Brainerd v. Arnold, 8 Mor. Min. Rep. 478; Chaffee v. Detroit, 53 Mich. 573. 2 Head v. Fordyce, 17 Cal. 149; 12 Mor. Min. Rep. 470; Pralus v. Pac. Gold & Sil. Min. Co., 35 Cal. 30; 12 M. M. R. 478; Stewart's App., supra. 8 Bulwer Con. Min. Co. v. Standard Con. Min. Co., 83 Cal. 589; Cook v. Frichey, 61 Miss. 1. A mere verbal claim, or assertion of ownership by defendant, will not justify an action to remove a cloud from the plaintiff's title. Waters v. Lewis, 106 Ga. 758; 32 S. E. Rep. 854. Sulphur Mines Co. v. Boswell, 94 Va. 480; 27 S. E. Rep. 24. 4 Stewart v. Hick, 34 Ohio St. 420; Onderdonk v. Mott, 34 Barb. (N. Y.) 106; 17 Enc. Pl. & Pr. 321. 5 Stewart's App., 78 Pa. St. 88; 12 Mor. Min. Rep. 491; Brainerd v. Arnold, 8 M. M. R. 478. 6 Kellar v. Stanley, 86 Ky. 240; Holmes v. Winter, 47 Fed. Rep. 257. |