CHAPTER X. SPECIAL TOPICS IN MINING LAW. SECTION 34. EMINENT DOMAIN. The government has the right to take mining property, as much as any other species of property by the right of eminent domain.1 It has been held in some cases that mine owners may exercise the right of eminent domain for the purpose of taking property necessary for the development of their mines.2 SECTION 35. RESPECTIVE RIGHTS OF THE PARTIES WHEN SURFACE AND MINERAL ESTATES ARE SEVERED. The ownership of the minerals may be vested in one, while the ownership of the surface is in another. This severance is often created by deed, in which case it amounts practically to a partition on a horizontal plane, the two estates being entirely separated, except that from the nature of the case, the surface owner can usually claim such incidental use of the surface as is necessary to enable him to mine the minerals.3 When minerals are so severed they form a separate part of the free hold and the estate is not a mere easement. Whether the right of entry on surface can be enlarged so as to allow the erection of coke ovens and 1 Titcomb vs. Kirk, 51 Colo., 288. Bliss vs. Kingdom, 46 Cal., 651. Caldwell vs. Fulton, 3 M. R., 238, 31 Pa., 475; Horner vs. Watson, 14 M. R., 1; 79 Pa., 242; Mar vin vs. Brewster Co., 13 M. E., 40, 55 N. Y., 538. Bonson vs. Jones, 56 N. W., 515; Plummer vs. Hillside Co., 104 F., 208. its use for powder house, blacksmith shop and supply stores depends upon the circumstances of the case as found by the jury." Williams vs. Gibson, 16 M. R., 243; 4 So., 350. |