Gillett v. Treganza

By the Cou/rt, Cole, J. Quite a number of points have been made upon the briefs of counsel in this case, as to alleged erroneous rulings of the circuit court, upon questions of practice and as to the admission of testimony on the trial; but in the present disposition of the case, we shall confine ourselves exclusively to a consideration of such exceptions as were taken to the refusal of the court to give the instructions asked for by the defendants below and plaintiffs here, and also the exceptions taken to the instructions which were given to the jury by the circuit court. The counsel for the defendants requested the court to charge the jury: That the contract given in evidence by the plaintiff is a mere grant or sale of a right to dig for ore; but does not convey or give to him any interest or estate in the freehold, nor in any mineral in the earth; that therefore he had no title to the mineral in question while it remained in the earth, and that .the defendant having dug it and raised it, and thus converted it into personal property, the plaintiff has failed to show any title to the property. That the plaintiff, under the agreement, has not, nor could he have, any right to the possession of any ore which was dug out of the earth by any person other than himself, or those acting under his direction. That this was an action for the wrongful taking of the property ; that the evidence did not show that the defendants had wrongfully taken the property, and therefore the plaintiff was not entitled to recover. These instructions were refused, and exceptions taken. The court charged the jury that they must be satisfied from the evidence that the defendants did take the [347] property, in order to entitle tbe plaintiff to recover, and that digging tbe mineral ont of tbe eartb or ground to wbicb tbe plaintiff was entitled, under tbe contract given in evidence, and of wbicb plaintiff was in legal possesssion — raising to tbe surface of tbe ground, converted it into personal property ; and that exercising acts of ownership over it while it lay around tbe shaft, after it was raised to tbe surface, would be evidence of a wrongful taking ; wbicb they might take into consideration in their deliberation upon that question. To this charge there was an exception. This was an action of replevin in the cepit, for tbe wrongful taking of a certain quantity of lead ore from a range of mineral ground upon the premises of Gillett. Tbe plea was the general issue, and several special pleas, alleging that tbe title to tbe mineral was in tbe defendants, and in tbe defendants and plaintiff. It appears that tbe mineral in controversy was dug and raised to the surface by tbe defendants from tbe ground wbicb tbe plaintiff contended be bad the sole aiid exclusive right and privilege to mine upon, according to a written agreement not under seal, entered into between him and Gillett, tbe owner of tbe land. By tbe terms of this agreement, Gillett bargained and sold to Treganza tbe right of digging for lead ore. on a certain range, it being, in the language of tbe instrument, a sheet dipping south and running east and west, for tbe sum of five hundred dollars, granting unto Treganza tbe privilege of following bis sheet or crevice in whatever direction it might run, on tbe south half of tbe north-west quarter of section thirty-three, town one, range one north ; and Treganza gave Gillett all bis right and interest in tbe ground, save tbe privilege of following bis crevice a sufficient thickness for tbe purpose of digging and working tbe crevice. It is very evident that to support this action it was necessary for tbe plaintiff to prove that at tbe time of tbe caption be bad tbe general or a special property in tbe mineral taken and tbe right of immediate and exclusive possesssion. 1 Ob., 162, et seq. and cases cited with tbe notes. If tbe general property in this mineral belonged to tbe [348] plaintiff, it was because the mineral was bargained, and sold to him by the terms of the agreement to which we have just referred. Assuming therefore that the mineral in dispute was broken and taken by the defendants from a crevice or mineral range embraced within the limits of the range mentioned in the agreement, the right of digging upon which had been sold to the plaintiffs, and we are then to ascertain and determine from the language of the agreement what right, interest or property was conveyed by it to Treganza. Can we say that by this agreement Grillett intended to bargain, sell, and convey unto Treganza the absolute property in the mineral unsevered from the land, whether held together with, or separately from, the property in the land, such as the law terms a corporeal hereditament, as distinguished from the mere right to work, and search for, them, which is an incorporeal hereditament ? Co. Litt., 4 b.; Collier Law of Mines, p. 1. The purport of this agreement is not to bargain and sell the land, or the metals, or the mineral therein comprised. An estate in mines may be created and pass by demise or grant as fully as an estate in land. See the case of Doe vs. Wood, 2 B. and A. 724; Normy vs. Rowe, 19 Ves., 143; Seaman vs. Vaundrey, 16 Id., 389. But the plain object and intent of this agreement appears to be, not to create a property or estate in the land, not to sell the mines or mineral unsevered therein, but to sell a right, liberty, license and privilege to work, mine, and search for, lead ore, upon the range therein described. “ The “ power of raising minerals may be alienated, either by such “ a conveyance as confers an estate in them, whether freehold “ or chattel in its quantity, or by such as merely confers a “ right to dig, importing no property in them until severed “from the soil.” Coll. Law of Miners, 6; Black. Com., Vol. 2, p. 121. Instead, therefore, of parting with, granting and conveying all the mines and lead ore that were then existing within the land, the words of the agreement import nothing more than a right or license, or privilege, to search and get these minerals. Bargains and sells, “ the right of digging for lead oref is the language of the instrument. Can we con349 construe this into a grant and sale of the minerals themselves ? This right of digging undoubtedly carries with it a right of property in the mineral dug and obtained. But the mineral in this case was not dug and obtained by the plaintiff. Unless he took it by the legal effect and operation of the agreement before it was discovered and broken from the earth, he cannot be said to have had the possession of it, or to have had that general property in it which would enable him to maintain replevin in the e&pbb against the defendants. Probably under our present practice a complaint setting forth the special circumstances of the case, would be all that would be necessary to enable the court to protect the interests of all parties under such agreements. But this action was commenced and the pleadings made up before the code took effect and while the distinctions in actions at law and equity were recognized and strictly adhered to. Observing those distinctions, we are unable to see upon what principle it can be maintained that Treganza had such an interest in the mineral in dispute that he could recover it in replevin in the c&pit. The agreement, as already observed, gave him the right or license to dig for mineral, (a license probably irrevocable, on account of carrying an interest if he prosecuted his mining diligently,) but it did not purport to grant, bargain and sell the mines or minerals as contradistinguished from the right to search for them. It follows from the .view which we have taken of the case, that the circuit court erred in not giving the instructions asked for by the defendant below. The judgment of the circuit court is therefore reversed and a new trial ordered.