An instrument by which a right is given to take minerals from land is usually referred to as a mining lease or as a license, without, however, in the ordinary case, any effort to use either expression with any degree of exactitude.

The owner of and may give to another a right to extract minerals from the land for a period of time or in perpetuity, the person to whom the right is given having no interest in the minerals until they are extracted.20 This right is a profit a prendre, a character of right discussed in another part of this work.21 Such a right, or the transaction by which it is created, is occasionally referred to as a license.22 But this is a misnomer. A license to mine is properly merely a permission to extract minerals from the licensor's land, which is revocable, at least in the ordinary case,23

Caldwell v. Fulton, 31 Pa. 475, 478, 72 Am. Dec. 760; Gloniger v. Coal Co., 55 Pa. 911, 93 Am. Dec. 720; Sanderson v. Scranton, 105 Pa. 469, 473. Compare Stock-bridge Iron Co. v. Hudson Iron Co., 107 Mass. 290, 322.

In Hansen v. Hall, 167 Mich. 7, 132 N. W. 457, it was held that the effect of such an exception was to establish in the beneficiary thereof ownership of an estate in the land, although there was no evidence that there were any minerals in the land on which the exception might operate. See comments in 10 Mich. Law Rev. 143.

20. See Rutland Marble Co. v. Ripley, 10 Wall. (U. S.) 339; State v. Roden Coal Co., 197 Ala. 407, 73 So. 5; Smith v. Cooley, 65 Cal. 46, 2 Pac. 880; Payne v. Neuval, 155 Cal. 46, 99 Pac. 476; New Haven v. Hotchkiss, 77 Conn168; Negaunee Iron Co. v. Iron Cliffs Co. 134 Mich. 264, 96 N. W. 468; Baker v. Hart, 123 N. Y. 470, 12 L. R. A. 60, 25 N. E. 948; Grubb v. Grubb, 74 Pa. 25; McBee v. Loftis, 1 Strobb Eq. (S. C.) 90; Reynolds v. Cook, 83 Va. 817, 5 Am. St. Rep. 317, 3 S. E. 710; Chapman v. Mill Creek Coal & Coke Co., 54 W. Va. 193, 46 S. E. 262.

21. Post Sec.Sec. 381-387.

22. See Kamphuuse v. Gaffner, 73 111. 453; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Boone v. Stover, 66 Mo. 430; Silsby v. Trotter, 29 N. J. Eq. 228.

23. See Wheeler v. West, 71 Cal. 126; Kamphouse v. Gaffner, 73 111. 453; Barry v. Worcester, 143 Mass. 476, 10 N. E. 186; Des-loge v. Pearce, 38 Mo. 588; Barks-dale v. Hairston, 81 Va. 764. And Post Sec. 349(d).

Sec. 254]

Rights of Enjoyment.

The owner of land may make a lease of the land for a limited period, with a right in the lessee to extract the minerals, the lessee being in such case in the position of the ordinary lessee of land, free, however, from liability for waste as regards the minerals.25

Frequently the owner of land makes what is in terms a lease for years of the minerals in place, or of the land, with the right to use it for mining purposes only, or employs other language which, while regarded as legally sufficient to create an estate in the land or the minerals, restricts to a limited period the privilege of extracting the minerals.26 Such an instrument may, it would seem, in the ordinary case be most satisfactorily regarded as a lease of the land or of certain strata in the land, free from liability for waste as regards the minerals.27 It has been said that such a mining lease is equivalent to a sale of the minerals in place,28 or of a portion of the land,29 but this, it

24. Manning v. Frazier, 96 111. 279. Post Sec. 349(h).

25. Sanford's Appeal, 75 Conn. 590, 54 Atl. 739; Shaw v. Wallace, 25 N. J. L. (1 Dutch.) 453; Patton v. Axley, 50 N. C. 440; Baker v Hart, 52 Hun (N. Y.) 363; Brown v. Beecher, 120 Pa. 590, 15 Atl. 608; Ganter v. Atkinson, 35 Wis. 48.

26. Lacey v. Newcomb, 95 Iowa, 287, 63 N. W. 714; Hartford Iron Min. Co v. Cambria Min. Co., 93 Mich. 90, 32 Am. St. Rep. 488, nize with its ordinary use as applying to the conveyance of an estate less than that of the grantor.

53 N. W. 4; Austin v. Huntsville Coal & Min. Co., 72 Mo. 535: Kirk v. Mattier, 140 Mo. 23, 41 S. W. 252; Paul v. Cragnaz, 25 Nev. 293, 59 Pac. 859, 47 L. R. A. 540, 60 Pac. 983; Massot v.Moses, 3 Rich. (S. C.) 168; Harvey Coal & Coke Co. v. Dillon, 59 W. Va. 605, 6

L. R. A. (N. S.) 628, 53 S. E. 928

27. See Sanford's Appeal, 75 Conn. 590, 54 Atl. 739; Deniston v. Haddock, 200 Pa. 426, 50 Atl. 197.

28. See Montooth v. Gamble, 123 Pa. 240, 16 Atl. 594; Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613, 25 Atl. 250; Hosack v. Crill, 18 Pa. Sup. Ct. 90, 204 Pa. 97, 53 Atl. 640. For a discussion of the numerous Pennsylvania cases bearing on the question, see article by Percy C. Madeira. Esq... in 64 University Penn. Law Rev. 42.

29. See dicta in Gowan v. Christie, L. R. 2 H. L. Sc. 273,

284; Coltness Iron Co. v. Black, 6 App. Cas. 315, 335; Eadon v. Jeff-cock, L. R. 7 Exch. 379, 394;

Real Property.

[Sec. 254 is submitted, is true in a limited sense only.30 The effect of such a lease is obviously to deplete the corpus of the subject of the lease as the lessee's mining progresses, and in that sense the lease may ultimately effect a transfer of a portion of the land for the consideration named; but the same might be said of the grant of a mere right to take minerals from another's land at a certain royalty, a right of profit. The lease, since it transfers to the lessee merely a limited estate in the minerals, cannot well be regarded as equivalent to a sale of the minerals, if by the latter expression is meant an absolute transfer of the minerals. It ultimately results, it is true, in the acquisition by the lessee of the absolute ownership of such minerals as he may remove during the term named, but this is by reason of their removal by him, and not by reason of the lease, except as this may justify their removal.31 The view that a mining lease is a sale of the minerals, it is to be remarked, does not harmonize with decisions and dicta32 that the sums to be paid by the lessee for the privilege of extracting the minerals are to be regarded as rent.

By some decisions, if the rent is, by the terms of the lease, entirely dependent on the extraction of ore, a covenant on the part of the lessee is to be implied that he will work the claim or mine with reasonable diligence,"33 and occasionally it has even been decided that, although there is no express provision to that effect,

Brooks v. Cook, 141 Ala. 499, 38 So. 641.

30. See State v. Evans, 99 Minn. 220, 108 N. W. 958; Dennis-ton v. Haddock. 200 Pa. 426, 50 Atl. 197.

31. See Butler v. McGorrisk, 114 Fed. 300, 52 C. C. A. 212; Cool-baugh v. Lehigh & W. Coal Co., 213' Pa. 28, 4 L. R. A. (N. S.) 207, 62 Atl. 94.

32. Daniel v. Gracie, 6 Q. B. 145; In re Roundwood Colliery Co. [1897], Ch. 373; Malcomson v. Wappoo Mills, 85 Fed 907; Nelson v. Republic Iron & Stel Co. 240 Fed. 285, 153 Pac. 211; Lacey v. Newcomb, 95 Iowa, 287, 63 N. W. 704; Higgins v. California Petroleum & Asphalt Co., 109 Cal. 304, 41 Pac. 1087; Boeing v. Owsley, 122 Minn. 190, 142 N. W. 287; Mcthe lessor may assort a forfeiture for failure to work.34 It would, however, be more in accord with principle to base the rights of the lessor in such case, as to resumption of possession, upon the theory that the failure to work involves an offer to relinquish possession which the lessor may accept, thereby' effecting a surrender by operation of law,35 or upon the theory that a promise to work the mine is to be implied, and that upon the lessee's repudiation of that promise the other party may rescind and recover the consideration for the promise, that is, the possession of the land.35a

A conveyance, by the owner of land, of the minerals in place therein, giving an absolute interest in the minerals, a fee simple estate,36 has occasionally been referred to as a lease, when the word "lease" was used in the instrument, and a rent reserved, with a right of forfeiture for non payment.37 Such a use of the expression "lease" evidently does not harmoIntyre v. Mclntyre Coal Co., 105 N. Y. 264, 11 N. E. 645; Miner's Bank v. Heilner, 47 Pa. 452.

33. Sharp v. Ben-, 117 Fed. 864; Stoddard v. Illinois Improvement & Ballast Co., 275 111. 199, 113 N. E. 913; Conrad v. More-head, 89 N. C. 31; Watson v. O'Hern, 6 Watts (Pa.) 362; Mc-Knight v. Manufacturers' Natural Gas Co., 146 Pa. 185, 28 Am. St. Rep. 790, 23 Atl. 164; Chandler v. French, 73 W. Va. 658, L. R. A 1915 B, 561, 81 S. E. 825.

34. Brown v. Wilmore Coal Co., 153 Fed. 143, 82 C. C. A. 295; Island Coal Co. v. Combs, 152 Ind. 379, 53 N. E. 452; Conrad v. More-head, 89 N. C. 31; Shenandoah Land & Anthracite Coal Co. v. Hise, 92 Va. 238, 23 S. E. 303.

35. See Price v. Black, 126

Iowa, 304, 101 N. W. 1056; Ellis v. Swan, 38 R. I. 534, 96 Atl. 840. 35a. Ante, Sec. 89, note 40.

36. Williams v. Gibson, 84 Ala. 228, 5 Am. St. Rep. 368, 4 So. 350; Manning v. Frazier, 96 111. 279; Barrett v. Kansas & Texas Coal Co. 70 Kan. 649, 79 Pac. 150; Chester Emery Co. v. Lucas, 112 Mass. 424; Negaunee Iron Co. v. Iron Cliffs Co. 134 Mich. 264. 96 N. W. 468; Hartwell v. Camman, what after the analogy of underground water. They are part of the land until they are removed therefrom.43 But the owner of the land can claim the gas or oil thereunder only so long as it there remains, and, if it escapes into other land, even as a result of the act of the owner of the latter, the owner of the land under which it had previously accumulated can no longer assert any right thereto.44

10 N. J. Eq. 128, 64 Am. St. Rtp. 448; Gill v. Fletcher, 74 Ohio St. 295, 113 Am. St. Rep. 962, 78 N. E. 433; Morison v. American Ass'n. 110 Va. 91, 65 S. E. 469.

37. Coolbaugh v. Lehigh & Wilkes Barre Coal Co., 21:: Pa. 28. 4 L. R. A. (N. S.) 207, 62 Atl. 94; Gallagher v. Hicks, 216 Pa. 243. 65 Atl. 623.