cluded by the one in possession, there is a diversity of views. Mr. Snyder contends that he must account,27 and Mr. Lindley that he need not.28 It is believed that the sounder view is that he must account.20 In some states the matter is regulated by statutes.00

29

Where an accounting is called for, there are various rules for determining what the co-tenant in possession must pay. Where the complaining co-tenant refused to share the risks, his recovery is limited by some cases to his share of the fair rental value of the land.31 The difficulty of such a measure of damages for mining property, if it were possible to fix a fair rental value for such property, is that, if it is to hold, there should be a recovery, even if the tenant in possession has made a loss. The same is true of the rule measuring recovery by the value of the ore in place. 32 The view which gives the complaining co-tenant his proportionate share of the profits after deducting all proper expenses, a view which clearly applies where the defendant has excluded the plaintiff from the joint property, and where the defendant has received royalties from a lessee, would seem to be the proper one to apply to the case of mines.35 The only objection to it is the one applicable to all the others, namely, that it lets a man who refused to take the risk share the profit. The answer to that would seem to be that the co-tenant who works does so with his eyes open to the consequences. He must make up his mind whether he will get a lease from his co-tenants, will force a partition, or will abide by the rules of co-tenancy.30

27 2 Snyder on Mines, § 1444.

28 2 Lindley on Mines (2d Ed.) § 789a.

33

29 MCGOWAN v. BAILEY, 179 Pa. 470, 36 Atl. 325; COLEMAN v. COLEMAN, 1 Pearson (Pa.) 470; GAGE v. GAGE, 66 N. H. 282, 29 Atl. 543, 28 L. R. A. 829; KAHN v. SMELTING CO., 102 U. S. 641, 646, 26 L. Ed. 266. But see Pico v. Columbet, 12 Cal. 414, 73 Am. Dec. 550. See Morrison's Mining Rights (13th Ed.) p. 334.

30 Laws Mont. 1899, p. 134; Comp. Laws Nev. (1861-1900) § 250. See Butte & B. Consol. Min. Co. v. Montana Ore-Purchasing Co., 25 Mont. 41, 63 Pac. 825; Red Mount Consol. Min. Co. v. Esler, 18 Mont. 174, 44 Pac. 523.

31 Early v. Friend, 16 Gratt. (Va.) 21, 78 Am. Dec. 649. See Edsall v. Merrill, 37 N. J. Eq. 114.

32 McGowan v. Bailey, 179 Pa. 470, 36 Atl. 325.

33 WILLIAMSON v. JONES, 43 W. Va. 562, 27 S. E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891.

34 CECIL v. CLARK, 49 W. Va. 459, 39 S. E. 202.

35 WOLFE v. CHILDS (Colo.) 94 Pac. 292; Graham v. Pierce, 19 Gratt. (Va.) 28, 100 Am. Dec. 658. See Ruffners v. Lewis' Ex'rs, 7 Leigh (Va.) 720, 30 Am. Dec. 513; Martel v. Jennings-Heywood Oil Syndicate, 114 La. 351, 38 South. 253; Lone Acre Oil Co. v. Swayne (Tex. Civ. App.) 78 S. W. 380.

36 Under the interpretation given by the Idaho Supreme Court to a state statute, the owner of a majority interest in a claim being worked by a co-ten

SAME-FIDUCIARY RELATIONSHIP OF CO-TENANTS.

136b. There is the same fiduciary relationship between tenants in common of mining property as between those of other property.

37

The same fiduciary relationship exists between tenants in common of mining property as of other property. An instance is found in a Washington case, where a mining company that had joined with several people in the location of a mining claim, and then, fearing that the claim was located on the dip of a vein apexing within a senior location, had bought a four-sevenths interest in the senior location, was compelled to let the co-tenants share in that four-sevenths interest when it became apparent that the senior location did have the apex.38

SAME-RELATIONS BETWEEN SURFACE AND SUBSURFACE

OWNERS.

1360. Where the title to the minerals has been severed from that to the surface, the owner of the minerals and the owner of the surface are not tenants in common of the whole.

It would seem to be unnecessary to say, except that the point has been expressly decided, that, where there has been such a severance that the title to the surface of a mining claim is in one person and the title to the minerals is in another, the two are neither joint tenants nor tenants in common, but each owns in severalty what is his.39

39

ant having a minority interest can dictate the manner in which the latter shall work, because by interfering the majority owner converts the co-tenancy into a mining partnership. Hawkins v. Spokane Hydraulic Min. Co., 3 Idaho (West.) 970, 3 Idaho, 241, 28 Pac. 433; Id. 3 Idaho, 650, 33 Pac. 40. See Sweeney v. Hanley, 126 Fed. 97, 61 C. C. A. 153. That being so, the majority owner must account to the minority for the latter's share of the profits, if the majority owner works the property. Id.

37 STEVENS v. GRAND CENTRAL MIN. CO., 133 Fed. 28, 67 C. C. A. 284. See Royston v. Miller (C. C.) 76 Fed. 50; Hallack v. Traber, 23 Colo. 14, 46 Pac. 110; Hunt v. Patchin (C. C.) 35 Fed. 815; Garside v. Norval, 1 Alaska, 19. For an application of this doctrine to a case of relocation, see Van Wagenen v. Carpenter, 27 Colo. 449, 61 Pac. 698. For other instances, see chapter XVII, § 96, supra.

38 CEDAR CANYON CONSOL. MIN. CO. v. YARWOOD, 27 Wash. 271, 67 Pac. 749, 91 Am. St. Rep. 811. Though the location made by the so-called cotenants was invalid, because the vein was already located, the mining company was nevertheless held bound. In the absence of a discovery of some other vein within the claim, the correctness of that holding may be doubted.

39 VIRGINIA COAL & IRON CO. v. KELLY, 93 Va. 332. 24 S. E. 1020; HUTCHINSON v. KLINE, 199 Pa. 564, 49 Atl. 312. See, also, cases in chapter XXVI, note 28, infra.

CHAPTER XXVI.

CONVEYANCES AND LIENS.

137. Necessity of Written Conveyances of Mining Claims.

138. Quitclaim and Warranty Deeds.

138a.

138b.

The Special "Dips, Spurs," etc., Clause.
After-Acquired Title.

139. Easements on Severance.

137. While oral transfers of unpatented mining claims early received judicial sanction, it has long been settled that such claims are real estate, and conveyances of them must conform to the requirements of conveyances of real estate.

In the early days of California, Idaho, and Nevada, before the real nature of mining locations was understood, it became established that a writing was not necessary for the conveyance of a mining claim.1 That was a doctrine which grew out of the supposed necessities of the time, before it was seen that a mining claim was essentially real property, and the doctrine has since been abandoned.

The doctrine has, however, had some interesting survivals. In 1879 the United States Supreme Court, on the strength of one of those early California cases,2 stated that "a written conveyance is not necessary to the transfer of a mining claim." The natural conclusion that a mining claim, which is not real estate within the statute of frauds, is not real estate within a state statute making judgments liens on real estate, and is not an interest in real property within a state

1 JACKSON v. FEATHER RIVER & GIBSONVILLE WATER CO., 14 Cal. 18; TABLE MOUNTAIN TUNNEL CO. v. STRANAHAN, 20 Cal. 198; Antoine Co. v. Ridge Co., 23 Cal. 219; Patterson v. Keystone Min. Co., 23 Cal. 575; Lockhart v. Rollins, 2 Idaho, 540, 21 Pac. 413; Kinney v. Consolidated Va. Min. Co., 4 Sawy. (U. S.) 382, 451, 452, Fed. Cas. No. 7,827. Even in California this doctrine did not hold where the claim was in the adverse posses sion of third persons. COPPER HILL MIN. CO. v. SPENCER, 25 Cal. 18.

2 TABLE MOUNTAIN TUNNEL CO. v. STRANAHAN, 20 Cal. 198.

3 UNION CONSOL. SILVER MIN. CO. v. TAYLOR, 100 U. S. 37, 42, 25 L. Ed. 541. See, also, Lockhart v. Rollins, 2 Idaho, 540, 21 Pac. 413.

4 PHOENIX MIN. & MILL. CO. v. SCOTT, 20 Wash. 48, 54 Pac. 777. See. contra, BUTTE HARDWARE CO. v. FRANK, 25 Mont. 344, 65 Pac. 1; Brad

COST.MIN.L.-32

7

statute affecting the jurisdiction of justices of the peace, or within a state statute of limitation, has been adopted in two states. In Washington, however, the court regards a mining claim as the equitable estate of the locator, rather than as personalty; while in Oregon a statute now makes all conveyances of mining claims subject to the same rules as apply to "other realty." The facts that the Idaho case related only to transfers prior to the act of 1866 supported by mining customs, that California passed an act as early as 1860 which the courts construed to require the conveyances of mining claims to be in writing, that the California courts have ever since called a mining claim real estate, and that in 1862 Nevada passed an act requiring the same formalities for the conveyance of mining claims as of other real estate,1 10 far outweigh the earlier erroneous California and Nevada cases.

11

It would seem to be clear that an unpatented mining claim is realty, and as such within the state statutory requirements applicable to real property. While, under the old rule allowing oral transfers, a written transfer did not have to be under seal,* a seal would now seem to be necessary, wherever it is necessary to the conveyance of ordinary real estate.

Transfers of Unperfected Claims.

But, while the above is true of an actually perfected mining location, it seems still to be true that an unperfected location may be

ford v. Morrison (Ariz.) 86 Pac. 6. Compare Waller v. Hughes, 2 Ariz. 114, 11 Pac. 122.

5 DUFFY v. MIX, 24 Or. 265, 33 Pac. 807.

6 HERRON v. EAGLE MIN. CO., 37 Or. 155, 61 Pac. 417.

7 Phoenix Min. & Mill. Co. v. Scott, 20 Wash. 48, 54 Pac. 777.

8 B. & C. Comp. Or. § 3981. See, also, Lohmann v. Helmer (C. C.) 104 Fed. 178.

9 GOLLER v. FETT, 30 Cal. 481; King v. Randlett, 33 Cal. 318; Melton v. Lambard, 51 Cal. 258; GARTHE v. HART, 73 Cal. 541, 15 Pac. 93; Moore v. Hamerstag, 109 Cal. 122, 41 Pac. 805; Bakersfield & Fresno Oil Co. v. Kern County, 144 Cal. 148, 77 Pac. 892.

10 Gen. St. Nev. 1885, § 2650. See Hale & Norcross Gold & Silver Min. Co. v. Storey County, 1 Nev. 104, 108.

11 ROSEVILLE ALTA MIN. CO. v. IOWA GULCH MIN. CO., 15 Colo. 29, 24 Pac. 920, 22 Am. St. Rep. 373; Alaska Exploration Co. v. Northern Min. & Trading Co., 152 Fed. 145, 81 C. C. A. 363; REAGAN v. McKIBBEN, 11 S. D. 270, 76 N. W. 943; Harris v. Equator Min. & S. Co. (C. C.) 8 Fed. 863; Hopkins v. Noyes, 4 Mont. 550, 2 Pac. 280; Cascaden v. Dunbar, 2 Alaska, 408. See Butte Hardware Co. v. Frank, 25 Mont. 344, 65 Pac. 1; Bradford v. Morrison (Ariz.) 86 Pac. 6. A mining claim descends as realty to the heirs of the intestate owner. LOHMANN v. HELMER (C. C.) 104 Fed. 178; KEELER v. TRUEMAN, 15 Colo. 143, 25 Pac. 311. See, also, chapter XX, note 17, supra. *Jackson v. Feather River & Gibsonville Water Co., 14 Cal. 18; Draper v. Douglass, 23 Cal. 347; St. John v. Kidd, 26 Cal. 265.

transferred without writing, and the transferee will acquire the legal title if he perfects the location in his own name.12 That is because, until the location is perfected, it has not acquired the status of real property, and in consequence is not governed by the statutes affecting real property.

It being settled that a perfected mining location must be conveyed in writing, and, of course, that a patented claim must be so conveyed, a question arises as to the form of deed.

QUITCLAIM AND WARRANTY DEEDS.

138. A grantor of an unpatented claim should convey by a quitclaim deed or by a carefully worded special warranty deed.

The question is whether a quitclaim deed or a warranty should be used in conveying a mining claim. In the case, of a patented claim a warranty deed may be used, whenever it would be used in regard to other real property, if only care be taken to have the warranty except anything excepted by the patent itself; but in the case of an unpatented claim a warranty deed should never be given, without expressly stating in the deed that the warranty does not apply to the United States. In the case of an unpatented claim a grantor should insist upon giving either a quitclaim deed or a carefully worded special warranty deed.

It often happens that so-called warranty deeds are really quitclaims, because the granting clause conveys only the right, title, and interest of the grantor, and the passage of that is all that is warranted; 18 and

14

it also often happens that a so-called quitclaim deed will have in it a covenant of warranty. The choice between mere quitclaims and various kinds of warranty deeds will, of course, depend wholly upon the purposes which the parties have in view.15

12 MILLER v. CHRISMAN, 140 Cal. 440, 73 Pac. 1083, 74 Pac. 444, 98 Am. St. Rep. 63; Doe v. Waterloo Min. Co., 70 Fed. 455, 17 C. C. A. 190. See Weed v. Snook, 144 Cal. 439, 77 Pac. 1023. Compare Bay v. Oklahoma Southern Gas, Oil & Min, Co., 13 Okl. 425, 73 Pac. 936.

13 Sweet v. Brown, 12 Metc. (Mass.) 175, 45 Am. Dec. 243. But see Loomis v. Bedel, 11 N. H. 74.

14 A common form of mining deed in use in Colorado purports to quitclaim, but contains a covenant of further assurance. Such a deed is not invalid to pass present title because of such covenant, WHOLEY v. CAVANAUGH, 88 Cal. 132, 25 Pac. 1112; while an after-acquired title will pass under it, Id.; Norfleet v. Russell, 64 Mo. 176; Phelps v. Kellogg, 15 Ill. 131; Bennett v. Waller, 23 Ill. 97.

15 That the grantee in a quitclaim deed of mining property will take title as free from equities as if the deed contained full covenants of warranty was