Limestone; 1

Flint stones, turned up with the plow by the tenant in the course of husbandry; 2

Slate; 3

Clay;

Brick clay;5

'Fishbourne v. Hamilton (1890), L. R. 25 Ir. 483; Md. Ry. v. Robinson (1889), L. R. 15 App. C. 19; Brown's Trust, 11 W. R. 19; Glasgow and S. W. Ry. Co. v. Bain (1893), 21 R. 134; Mawson v. Fletcher (1870), L. R. 6 Ch. App. C. 91; Dixon v. Caledonian and Glasgow Ry. Co., L. R. 5 App. C. 820.

2 Tucker v. Linger (1883), L. R. 8 App. C. 508-construing reservation in lease of "mines and minerals, quarries of stone, brickearth, and "gravel pits." But tenant held to be entitled to them by virtue of local custom.

3 Duchess of Cleveland v. Meyrick, 16 W. R. 104; 37 L. J. Ch. 125. Ruabon Brick and Terra Cotta Co. v. Great Western Ry. Co. (1893), L. R. 1 Ch. 427. Within the meaning of the "railway clauses act." Errington v. Met. Ry. Co. (1882), L. R. 19 Ch. D. 559, 571. Within the meaning of the "railway clauses act."

Attorney-General v. Mylchreest (1879), 4 App. C. 294.

Lord Herschell, in Magistrates of Glasgow v. Farie (1888), L. R. 13 App. C. 683.

Midland Ry. Co. v. Haunchwood B. and T. Co. (1882), L. R. 20 Ch. D. 552. (For comment on this case by the United States land department, see King v. Bradford, 31 L. D. 108.)

In this case a controversy arose under acts of parliament known as the "railway clauses acts." These acts, among other things, prescribe the methods by which railway companies may obtain, by what is termed "compulsory purchase," land for their road-beds, stations, and other necessary adjuncts. Similar acts are in force in both England and Scotland, and appear to be a substitute for the condemnation proceedings used in this country. The following extracts from one of these acts will serve to show the context under consideration in this case, as well as in a number of others which may be referred to:

"And, with respect to mines lying under or near the railway, be it "enacted:

"SEC. 77. The company shall not be entitled to any mines of coal, "'ironstone, slate, or other minerals under any land purchased by them, "except only such parts thereof as shall be dug or carried away, or used "in the construction of the works, unless the same shall have been "expressly purchased; and all such mines shall be deemed excepted out

China clay (kaolin-sometimes called porcelain, or fire-clay);1

Coprolites (phosphatic nodules).2

The foregoing illustrations will serve to demonstrate the evolution of denotation referred to in a preceding paragraph, and give a fair outline of the meaning given to the terms "mines" and "minerals" by the courts of last resort in England and Scotland. Considering the scope of this treatise, a more critical review of the English authorities would serve no useful purpose.

93. The American cases defining "mine" and “mineral.”—In America, until a comparatively recent period, controversies over the construction of the terms "mines" and "minerals" have been limited to cases arising, as in many of the English cases, out of the use of these terms in conveyances, leases, and the like, where the context, or the peculiar situation of the parties, or

"of the conveyance of such lands, unless they shall have been expressly "named therein and conveyed thereby."

Subsequent sections provide that the owner of the minerals desiring to work within forty yards of the railway or under the same must give the company notice. Thereupon the company may exercise the option of purchasing the minerals, the value thereof to be ascertained by appraisement. If the company does not give notice within thirty days of the exercise of that option, the owner of the minerals may work under the railway.

Exception in grant of freehold in copyhold tenement, by Duke of Cornwall (1799), reserving "all mines and minerals within and under "the premises, with full and free liberty of ingress, egress, and regress, "to dig, search for, and to take, use, and work, for the said excepted "mines and minerals." Hext v. Gill (1872), L. R. 7 Ch. App. 699.

Working for china clay in this case was by stripping the soil from the bed and turning a stream of water over the clay, similar to the tin "streaming" practiced in some portions of Cornwall, and to the hydraulic process in vogue in this country.

Loosemore v. Tiverton and N. Devon Ry. Co. (1882), L. R. 22 Ch. D. 25-construing section 77, "railway clauses act" of 1845.

'Attorney-General v. Tomline (1877), L. R. 5 Ch. Div. 750.

the subject of the litigation, to some extent at least, controlled. A brief review of some of these authorities will be of interest.

In Gibson v. Tyson,' the supreme court of Pennsylvania had under consideration a grant reserving to the grantee "all minerals or magnesia of any kind." This was held to include chromate of iron; but the court intimated that had it not been for the parol evidence concerning the supposed character of the land, and the situation of the parties at the time the instrument was executed, it would have excluded the substance afterwards found and designated as chromate of iron, because it was non-metallic, and the "great mass of "mankind do not consider anything mineral that is not "metallic."

In Hartwell v. Camman,2 the New Jersey court of chancery, in construing the terms of a conveyance granting "all mines, minerals, opened or to be opened,” thus states its views:

"By the use of the terms 'mines' and 'minerals,' it "is clear that the grantor did not intend to include everything embraced in the mineral kingdom, as dis"tinguished from what belongs to the animal and vege"table kingdom. If he did, he parted with the soil "itself. Nor can I see any more propriety in confining the meaning of the terms used to any one "of the subordinate divisions into which the mineral "kingdom has been subdivided by chemists, either earthy, metallic, saline, or bituminous.

66

I do

"not think the term should be confined to the metals, "or metallic ores. I cannot doubt if a stratum of salt, "or even a bed of coal, had been found, they would "have passed under the grant."

The court holds that "paint-stone" falls within the term "minerals," as the substance was valuable for its

15 Watts, 35.

10 N. J. Eq. 128, 64 Am. Dec. 448, 3 Morr. Min. Rep. 229.

mineral properties, could be converted into a merchantable article adapted to the mechanical and ornamental arts, and was embraced in the definition given by men of science.1

In Funk v. Haldeman,2 the supreme court of Pennsylvania treated petroleum oil as a mineral, saying that "until our scientific knowledge on the subject is in"creased, that is the light in which the courts will be likely to regard this valuable production of the "earth."

66

Under a statute of Pennsylvania, passed April 25, 1850, it was provided that suit in the county where the lands were situated might be brought by a tenant in common of "minerals." Under this act the court of common pleas of Erie county held that petroleum was a mineral, and the fact that it was unknown as a product from land at the time the act was passed did not prevent its application.

3

In Griffin v. Fellows, a question arose as to the construction of an instrument, executed in 1796, leasing a tract of public land, "together with the mines or "minerals of whatever description." There were no opened mines or quarries on the premises at the date of the lease. Mining of coal was first commenced by the tenant in 1810, and quarrying stone in 1855. It was held by the supreme court of Pennsylvania, adopting the views of the trial court, that "the term 'min"'erals' embraces everything not of the mere surface, "which is used for agricultural purposes; the granite "of the mountains, as well as metallic ores and fossils, "are comprehended within it," and consequently that,

1 See also Johnson v. California Lustral Co., 127 Cal. 283, 59 Pac. 595. (1866), 53 Pa. St. 229.

Thompson v. Noble (1870), 3 Pittsb. 201.

(1873), 32 P. F. Smith, 114; 8 Morr. Min. Rep. 657.

Citing the English case of Earl of Rosse v. Wainman, 14 M. & W. 859.

"by the terms of the lease, the lessee and his assigns "have the right to mine coal and quarry stone."

In Dunham v. Kirkpatrick, in construing a deed containing a reservation of "all minerals," the supreme court of Pennsylvania held that while it was true that petroleum was a mineral, yet in popular estimation it was not so regarded; and following the rule of construction invoked in Gibson v. Tyson, the court concluded, that in contemplation of the parties to the instrument petroleum was not within the reservation.

The same court, however, in a more recent case,2 seems to have ignored the doctrine of Dunham v. Kirkpatrick.

The legislature of Pennsylvania had passed an act providing, among other things, for the mortgaging of a "leasehold of any colliery, mining land, manufacturing, or other premises." In passing upon the act, the court held that petroleum was a mineral substance obtained from the earth by a process of mining, and lands from which it is obtained may, with propriety, be called mining lands. Therefore, the act applied to and authorized a mortgage of a leasehold of oil land, although the act was passed before petroleum was discovered, substantially following the doctrine announced in Thompson v. Noble (supra).

3

The same court, in a still later case, holds that natural gas is a mineral, although it possesses peculiar attributes, which require the application of precedents arising out of ordinary mineral rights with much more careful consideration, and terms it a mineral fera

naturæ.

In Murray v. Allard, the supreme court of Tennes(1882), 101 Pa. St. 36, 47 Am. St. Rep. 696.

"Gill v. Weston (1885), 110 Pa. St. 316.

3 Westmoreland & Cambria Nat. Gas Co. v. De Witt, 130 Pa. St. 235. 100 Tenn. 100, 66 Am. St. Rep. 740, 43 S. W. 355.