Brandt v. McKeever

The opinion of the Court'was delivered by Gibson, C. J. The question is, what did the state mean to grant by a warrant and survey of the bottom of the river ? “ From and after the issuing of the said warrant,” says the statute, “ the right to dig and mine for iron, coal, limestone, sand, and gravel, fire-clay, and other minerals, shall vest and be in the party in whose favor the said warrant shall issue.” The grant is therefore not of the soil, but of a right to mine and dig in it; and to take to the use of the warrantee the product of his digging and mining, and everything he shall have made his own by the impress of his labor; but of nothing else. A right to dig for minerals is essentially different from a right to the soil. Nothing is more common in every part of the state where coal or iron abounds, than a right to dig for it below the surface of the ground, separated from a right to the surface itself. A grant of it conveys no more than a license to take and appropriate the minerals beneath; but it vests no property in them till they are taken and appropriated. The plaintiff had no better right, therefore, than had the defendant, to the sand deposited by the current; or rather the right to it was exclusively in the state. True, it is said in the third section of the Act, that the warrantee may receive “ a patent for the land;" but the generality of the expression is qualified by directing that the patent contains only a grant to dig and mine. The subsequent Act, more distinctly restraining the generality of the terms, was unnecessary, and we are therefore relieved from a consideration of its constitutionality. Judgment affirmed.