CHAPTER II. OF DOWER INTERESTS IN MINES. § 931. Scope of treatment. 932. Dower in open mines in England. 933. The rule in this country - Endowable of all open mines. 934. Special cases when dower may be claimed, and special subjects wherein it may not be claimed. 935. When dower tenant impeachable for waste. § 931. Scope of treatment.- When this work was begun the supreme court of the United States had not passed upon the question as to whether the inchoate right of dower attached to an unpatented mine upon the public domain. Owing to the many characteristics of an estate of inheritance, and notwithstanding the known practice of verbal transfers and of transfers by mere change of possession, we in common with many other attorneys had inclined to the view that the dower right would so attach. We are convinced, however, of the soundness of the reasoning of both the supreme court of the United States and of the circuit court of appeals, and have elsewhere subscribed to the doctrine that the dower right will not attach to an unpatented mining claim upon the public domain. It is not our purpose, indeed it would be foreign to the object of this work, to enter into a discussion regarding the assignment or admeasurement of dower, or to advert in a particular way as to the sufficiency of instruments in particular cases whereby the same may be parted with or lost. It is our purpose rather, and the extent to which we will deal with the subject, to merely point out the particular mining interests which are the subject of dower in this country, and incidentally we will call to our 1 See ante, § 470. assistance the prevailing opinion in England, so far as the same may be ascertained. § 932. Dower in open mines in England. There is some diversity of opinion in England as to what particular estate in the husband is necessary in a mine in order that the wife may become seized of the inchoate right of dower therein. The best considered case, however, that we have been able to find lays down the rule, which seems to be generally recognized, that the wife has an inchoate interest, and hence the widow may be endowed of a third part of all open mines at the time of her husband's decease, and there is no difference in the liability of mines forming a separate inheritance. So it has been held that a widow will also be entitled to dower where there is a license or liberty in fee to work mines. Although this liberty only forms an incorporeal hereditament, yet it savors of the realty sufficiently to become liable to dower.3 933. The rule in this country- Endowable of all open mines. The rule seems to be well settled by all the courts in this country that have had occasion to consider the question, that in all cases where the mines have been opened in the life-time of the husband and the right of dower exists, the widow becomes seized of her dower interest therein. As was said by the supreme court of Tennessee: "We hold, therefore, that dower is assignable to widow in mines, quarries, and the like, and she may enjoy the same either by an allotment, by metes and bounds, or by a share of the rents 1 See Clift v. Clift, 87 Tenn. 17, 9 S. W. Rep. 198, affirmed on rehearing, S. C.. 9 S. W. Rep. 360, and cases. 2 Stoughton v. Leigh, 1 Taunt. 401; Bainb. Mines (1st Am. from 3d Lond. ed.), p. 147. 360, citing (q. v.) Coates v. Cheever, 1 Cow. 460; Billings v. Taylor, 10 Pick. 460: Moore v. Rollins, 45 Me. 493; Finley v. Smith, 6 Munf. (Va.) 134; Crouch v. Puryear, 1 Rand. (Va.) 258; Hendrix v. McBeth, 3 Co. Lit. 32a, 32b; Cro. Jac. 621; 61 Ind. 473; Lenfers v. Henke, 73 Bainb. Mines, supra, p. 153. 4 Clift v. Clift, 87 Tenn. 17, 9 S. W. Rep. 198; affirmed, S. C., 9 S. W. Rep. Ill. 405; Rockwell v. Morgan, 13 N. J. Eq. 384; Whittaker v. Lindley, 8 Ky. Law Rep. 690. and royalties, where the mines or quarries were opened and operated in the life of the husband, whether the same be operated by the husband paying rent or royalty on the yield. And in determining the mode to be adopted in each particular case regard should be had always to the interest of the widow, and the widow is entitled to an account with the heir for the rents and profits from the death of the husband." This right is not affected by the continuance or discontinuance of the working of certain veins, either by the decedent or those claiming under him. And where a salt well had caved in, it was held that the tenant in dower might bore a new one forty feet from the old without being impeachable for waste, and under similar circumstances might sink a new shaft to the same vein in which the dower was claimed." 2 § 934. Special cases when dower may be claimed, and special subjects wherein it may not be claimed. It must be borne in mind that the word "mine" as used in this connection means the particular substance, vein, stratum or lode known to exist, rather than the opening or cavity by which the same is reached. So, a doubt has been expressed as to whether the widow is endowable of an unopened mine; and it has been expressly held by the supreme court of the United States that the right to mine and work guano or phosphate beds, being a mere conditional interest, the widow is not entitled to dower therein. But a demise of all the merchantable, workable and mineral coal which can be removed from certain lands was held to be a sale of the coal, and the royalties were equivalent to the purchasemoney, to which the widow of the lessor is entitled to a 1 Clift v. Clift, 87 Tenn. 17, 9 S. W. Rep. 198, 201. See Summers v. Darnell, 7 Heisk. 565; Lewis v. James, 8 Humph. 537; London v. London, 1 id. 1. 2 In re Maffet's Estate (Pa. Orph. Ct.), 8 Kulp, 184. 3 Finley v. Smith, 6 Munf. (Va.) 34. 4 Crouch v. Puryear, 1 Rand. (Va.) 258. 5 Whittaker v. Lindley, 8 Ky. Law Rep. 690, 17 Cent. Dig. 1130. 6 Duncan v. Nevassa Phosphate Co., 137 U. S. 547. third. So, where the husband died seized of a tract of land of about fifty acres, four of which contained a slate quarry partially above ground, one-quarter of an acre of which had been dug over and partially opened, it was held that the widow was entitled to dower in said tract, including the entire quarry. So of a lime quarry owned by the husband.3 § 935. When dower tenant impeachable for waste.We noticed some special circumstances in a preceding section where the dower tenant was held not impeachable for waste. We apprehend that circumstances such as those would in any case justify holding him not so impeachable. But at the common law, and under the old English rule, a different doctrine applied. There it was held generally that for opening a new mine, and sometimes for digging a new pit on the same mine, which was often considered equivalent to opening a new one, the dower tenant was so impeachable.5 1 In re Maffet's Estate (Pa. Orph. Ct.), 8 Kulp, 184. See also Dicken v. Hamer, 29 L. J. Ch. 778. Billings v. Taylor, 27 Mass. (10 Pick.) 460, 20 Am. Dec. 533. See also Rockwell v. Morgan, 2 Beas. Ch. (N. J.) 384. 3 Moore v. Rollins, 45 Me. 493. 5 Bainb. Mines (1 Am. from 3d Lond. ed.), pp. 43, 147; Stoughton v. Leigh, 1 Taunt. 410. CHAPTER III. OF LIFE ESTATES IN MINES, AND THE RIGHTS AND DUTIES OF LIFE TENANTS. 941. Estates for life - Generally life tenant may not waste inherit 944. Same subject As to open mines-Life tenant's rights- Anticipation of estate in expectancy. 945. Same As to unopened mines and strata. 946. Exceptions to the general rule - Permissive waste. 947. Burden of proving waste - Presumption. 948. No distinction in Scotland. 949. Permissive waste - Mining by tenant in tail in new mine. 950. May not destroy estate by permissive waste- When may open abandoned mine - Question of fact. 951. Petroleum When considered mineral and when as income, and not of corpus. 952. Customs affecting rights of life tenants. § 940. Preliminary Scope of treatment.— In England, where so many estates are held merely for life, the rights, duties and liabilities of a life tenant have been the subject of much controversy. The general proposition growing out of these controversies, so far as material to the present inquiry, is that, while the life tenant may not waste the inheritance, yet there are certain acts which he may do and certain mining operations which he may carry on in respect of open mines, without being impeachable for waste. It is our purpose to elaborate these circumstances at some length in this chapter. § 941. Estates for life - Generally life tenant may not waste inheritance Waste by trespasser.- Respecting the rights and duties of a life tenant, they are the same every |