This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
A person may have a right to take minerals from another's land in the nature of a profit a prendre.34 Such right to take minerals from another's land must be carefully distinguished from an estate in the minerals themselves which, as previously stated, may be separated, for purposes of ownership, from the surface of the ground.35 A grant of the right to take minerals from another's land is not
31. Co. Litt. 122a; 2 Blackst. Comm. 33.
S2. A right of common, sometimes, perhaps, termed "common of vicinage," has been occasionally asserted in jurisdictions where the owner of cattle is not bound to prevent them from trespassing on unfenced land belonging to others (see Davis v. Gurley, 44 Ga. 582), but the right to allow one's cattle to roam over unfenced lands belongs, in those jurisdictions, to everybody, and, as clearly decided, constitutes in no sense a right of common of pasture (Harrell v. Hannum, 5G Ga. 50S). See Smith v. Floyd, 18 Barb. (N. Y.) 522; Thomas v. Marshfield, 13 Pick. (Mass.) 240.
33. Co. Litt. 122a; 2 Blackst.
34. Doe d. Hanley v. Wood, 2 Barn. & Ald. 738; Muskett v. Hill, 5 Bing. N. C. 694; Rutland Marble Co. v. Ripley, 10 Wall. (U. S.) 339, 19 L. Ed. 955; Smith v. Cooley, 65 Cal. 46, 2 Pac. 880; Baker v. Hart, 123 N. Y. 470, 12 L. R. A. 60, 25 N. E. 948; Clement v. Youngman, 40 Pa. St. 341; Chartiers Block Coal Co. v. Mellon, 152 Pa. St. 286, 18 L. R. A. 702, 34 Am. St. Rep. 645, 25 Atl. 597.
35. Wilkinson v. Proud, 11 Mees. & W. 33; Caldwell v. Fulton, 31 Pa. St. 475; Baker v. Hart, 123 N. Y. 470, 12 L. R. A. 60, 25 N. E. 948; Smith v. Cooley. 65 Cal. 46, 2 Pac. 880. See mte, Sec. 253.
Exclusive of the right of the owner of the land also to take them, unless it is so expressed.36 A right to take oil or gas from land in which the person so entitled has no right of ownership is likewise, though not always expressly so stated, a right of profit a prendre.37 Frequently what is properly a profit a prendre as regards minerals in land, that is, a power of a more or less permanent character to take as one's own minerals in the land, is referred to as a mining license,38 the important distinction, before referred to, between a profit a prendre and a license,39 being thus ignored.