In Irwin v. Covode, it was held that a court might restrain unskillful mining and wanton injury to the inheritance by a tenant for life, but not such mining as is subject to no other objection than its liability to exhaust the mine. The court say :
'It is said that on the western slope of the Alleghanies the seams of bituminous coal are so few and thin that tenants for life, if permitted to introduce modern facilities for mining, would exhaust lands so held, and leave them ruined on the hands of those in succession. Should this happen, it would be no more than occurs in every life estate in chattels which perish with the using. So long as the estate is used according to its nature, it is no valid objection that the use is consumption." * * *
In Neel v. Neel the wife had a life estate under a will, and the only question was whether a tenant for life of land having coal mines opened upon it may mine the coal, not only for his own use, but for sale. The court say:
"It seems in this case that the author of the gift had sometimes sold coal out of these pits, but I do not conceive this to be material. It is sufficient that he opened them; and derived any profit from them, even if it were only fire bote. The fact of his opening the pits made the coal a part of the profits of the land, and the right to them will pass as such by a devise of a life estate. If he meant otherwise, he should have said so; not having said so, this is the legal inference of his intention. . . . The most obvious inference would seem to be that, when a man devises land with an open mine upon it to a person for life, he intended the devisee to derive profit from the mine as well as from the surface of the land. He may not have supposed that the devisee would exhaust the mine, and this might seem unreasonable; but, when the donor did not see proper to restrain the gift, how shall it be done? Surely courts have no such control over the arrangements which people choose to make of their affairs. Usually an enterprising tenant for life may be of advantage to the remainderman, but, in the case of mines, it may be the reverse. And I cannot see how the enterprise of the citizen is to be restrained by judicial process. If we could get ourselves freer from the notions derived from feudal subordination, we would perhaps think that the privileges of tenants for life should be enlarged, rather than restrained, and that the cultivation of the country would be thereby improved."
In Billings v. Taylor the husband died seized of a tract of land of four acres in extent, consisting of a slate quarry mostly below the surface of the ground. One-quarter of an acre of the quarry had been dug over, and the practice was to take a section of ten or twelve feet square on the surface, and go down to a certain depth, and then begin on the surface again. The court say:
"It would be too narrow a construction to say that no part of this quarry was opened except that portion which had actually been dug, but it must be considered that the whole, lying together as one tract, belonging to one estate, and wrought in the manner described, was opened, and that the widow was entitled to dower in that as well as the other estate of her husband."
In Crouch v. Puryear it was held that it was not waste in a tenant in dower of coal lands to take coal to any extent from a mine already opened, or to sink new shafts into the same veins of coal.
In Gaines v. Mining Co., held, that a life tenant has a right to use a mine for his own profit, when the owner of the fee in his lifetime had opened it, even though he may have discontinued work upon it for a long period of years.
In Reed v. Reed, held, that the operating of an opened mine was a mode of enjoyment of the land to which a tenant for life was entitled.
It has been held that, if the mode of using the land consisted in cutting the growth upon it as the customary source of profit, the widow may continue to do so. Thus, to cut and sell staves and shingles or hoop-poles under the circumstances supposed would not be waste. Ballentine v. Poyner, 2 Hayw. (N. C.) no; Clemence v. Steere, 1 R. I. 272.
The doctrine that a widow is not dowable of mining lands, unless at the time of the death of her husband mines had been opened, is traceable to Stoughton v. Leigh, 1 Taunt. 402. There decedent left a large estate, upon which there was a lead and a coal mine, neither of which had been opened; two other lead and two coal mines, which he had leased to tenants, reserving certain rents, which were to be paid whether the tenants did or did not open the mines, one of each class of which mines had been opened at the time of his death; a lead and a coal mine, which he had leased, reserving royalties payable in ore and coal, and which coal mine had been opened at the time of his death, but the lead mine had not. Two other lead mines and two other coal mines had been opened. Deceased was also entitled to minerals lying under lands not his own, and had operated certain mines thereon, and others were unopened. The court held that the wife was dowable of all the opened mines, but was not dowable of the mines or strata which had not been opened, whether owned by lease or not. The decision may not be without reason, but certainly no reasons are given in the opinion. Clearly, as to those lands which had been leased, they had been by the decedent devoted to mining purposes, and the mode of enjoyment and source of profit, under all the authorities, had been fixed and determined by the decedent; and, as to the rents which were to be paid, whether the mines were opened or not, under all the authorities on the subject of dower, the widow was entitled to participate in them.
The rule laid down in that case undoubtedly had its origin in cases where the relation of landlord and tenant existed. A tenant who rents a farm cannot cut and sell the timber therefrom, convert the farm into a brick-yard, open a stone quarry or sand-pit, bore for oil, or mine for ore thereon, unless authority so to do is expressly given or arises by implication from the situation; but one who rents a piece of ground upon which there is an open quarry or sand-pit or brick-yard, or open mine, may quarry, take out sand, make brick, or operate the mine, unless there is either an express reservation, or some condition or circumstances which would operate as an implied restriction. One who leases a copper mine may mine for copper, but, if he should strike a pocket of silver, the same rule would prohibit him from appropriating the silver. The Salt-well Case, where the vein of petroleum was tapped, is an illustration of the principle underlying this class of cases. Kier v. Peterson, 41 Penn. St. 361. The question in that class of cases is one of interpretation of the contract, - of what was the use granted, - and, as bearing upon that question, the condition of the premises, the use to which the premises had been devoted, and the source of profit are important considerations; but there is room for but one construction where there is but one mode of enjoyment, one source of revenue or profit, one use. Suppose that a lease were given by A of all his mining lands, or a devise were made for life of a gravel bank, although no mine or pit had been opened, and the lands were available for no other purpose, or were adapted to no other use, from which any considerable revenue could be derived, and suppose such grant were made to a wife or child, could it be contended for a moment that the ordinary methods of use or enjoyment of such lands were not to be adopted; that the usual mode of deriving revenue from such lands was not to be resorted to; that such land was not to be used according to its nature? " * * *