§ 1485. Partition between co-tenants-Mines capable of partition. Some of the early authorities in England inclined to the notion that mines could not be partitioned.1 But whether that rule ever obtained to any extent in this country it is unnecessary to inquire, inasmuch as it is now well settled and recognized as a general rule that all mines and mining interests may become the subject of partition." And this extends not only to mining claims patented and unpatented in the precious metal bearing states, but also applies with equal force to the severed estates held by cotenants in the coal and iron mining regions.*

3

§ 1486. Mode of partition-Partition of product.Where each portion cannot be equitably set off by partition agreeably to the usual custom in such cases, a sale will be ordered and the proceeds divided." The general rule is that dissolution of the relationship and accounting of the property go hand in hand. In many of the states this matter is regulated by statute, but it would serve no useful purpose to repeat the statutes or give the substance of their provisions. It has been held that even though there be a cove

Eberts v. Fisher, 44 Mich. 553. See Rowell v. Bodfish, 10 Atl. Rep. 445. 1 Lord Mountjoy Case, Godb. 17; Conant v. Smith, 1 Atk. 67. See Lenfers v. Henke, 73 Ill. 405; Kemble v. Kemble, 44 N. J. Eq. 454.

2

Kemble v. Kemble, supra; Christy's Appeal, 110 Pa. St. 24. See Coleman v. Coleman, 19 Pa. St. 100: Canfield v. Ford, 28 Barb. 336; Dall v. Confidence S. M. Co., 3 Nev. 531; Morrill v. Morrill, 5 N. H. 136.

Aspen M. & S. Co. v. Rucker, supra; Dall v. Confidence S. M. Co., supra; Nisbet v. Nash, supra; Mitchell v. Cline, supra.

3 Aspen M. & S. Co. v. Rucker, 28 Fed. Rep. 220; Strattell v. Ballou, 9 Fed. Rep. 256; 420 M. Co. v. Bullion M. Co., 3 Sawy. 634, 9 Fed. Cas. 592, No. 4,989; Kinney v. Cons. Virginia M. Co., 4 Sawy. 382, 14 Fed. Cas. 611, No. 7,827; Hughes v. Dev. lin, 23 Cal. 501; Nisbet v. Nash, 52 Cal. 540; Mitchell v. Cline, 84 Cal. 409, 24 Pac. Rep. 164; Ames v. Ames, 160 Ill. 599; Adam v. Briggs Iron Co., 7 Cush. 361; Boston Franklinite Co. v. Condit, 19 N. J. Eq. 394;

4 See authorities, note 2, supra. 5 Dall v. Confidence S. M. Co., 3 Nev. 531; Wild v. Milne, 26 Beav. 504; Crawshay v. Maule, 1 Swanst. Ch. 495; Lenfers v. Henke, 73 Ill. 405; Lorenz v. Jacobs, 59 Cal. 262; McGillivray v. Evans, 27 Cal. 92. 6 Nisbet v. Nash, 52 Cal. 540.

nant between the parties running with the land to the effect that the mine shall never be partitioned, the ore produced from the mine may nevertheless be the subject of partition.1

§ 1487. Illegal contracts not within the rule. But the rights of parties only extend to such contracts and relations as are honest and untainted with fraud. Thus, in California, plaintiff's and defendant's ancestors and others, for the purpose of locating more public mineral land than they otherwise would have been entitled to, associated with them certain persons in the character of "dummy" locators, that is, persons having no interest, and thus located sixty acres more placer ground than they otherwise could have acquired, all of which they sought to partition. In denying their standing in court it was said: "Now that they have succeeded in thus obtaining the land, will a court of equity stoop to investigate those parts of the agreements and understandings relating to a division of that land among the conspirators? I think not. The following language of this court3 is applicable to this case: The entire transaction between the parties is tainted with fraud, and the plaintiff must content himself with so much of the benefit of it as he has already procured unchallenged. The reason why the common law says such contracts are void is for the public good, and we think that the public good requires that this transaction should be held void in all its parts. It was a contract which contemplated the perpetration of a fraud on a court of justice, and we think it the duty of courts to discountenance and discourage such transactions to the utmost limit of their power.' In the case at bar a fraud upon the government was not only contemplated, but was actually and successfully perpetrated; and the appellants are shown to have

1 Coleman v. Coleman, 19 Pa. St. 100; Coleman's Appeal, 62 Pa. St. 252.

2 Citing Civil Code, § 1667: Damrell v. Meyer, 40 Cal. 166; Huston

v. Walker, 47 Cal. 484; Snow v. Kimmer, 52 Cal. 624.

3 Beard v. Beard, 65 Cal. 356, 4 Pac. Rep. 229.

'secured unchallenged ' about one-half of the benefits thereof, with which they should content themselves. See also Pomeroy's Equity Jurisprudence,' where, among other things in point here, it is said: 'Where two or more have entered into a fraudulent scheme for the purpose of obtaining property in which all are to share, and the scheme has been carried out so that all the results of the fraud are in the hands of one of the parties, a court of equity will not interfere on behalf of the others to aid them in obtaining their shares, but will leave the parties in the position where they have placed themselves." "2

§ 1488. Cornwall ore banks in Pennsylvania.- Respecting this celebrated estate which has occasioned so much litigation, it is now settled that the covenant not to partition runs with the land, and exempts it from the general rule. The Cornwall furnace and ore banks were a part of the Cornwall estate so called, and were in 1786 the property by devise of Burd Grubb and Henry Bates Grubb, Curtis Grubb and Robert Coleman, co-tenants with their ancestor. They were segregated from the main body of the estate on August 30, 1787, by an agreement containing this proviso: "provided always, and it is hereby agreed, that the ore banks belonging to the Cornwall furnace shall remain together and undivided as a tenancy in common, the said Curtis Grubb being entitled to three-sixths parts thereof, the said Robert Coleman being entitled to one-sixth part thereof, and the said minor children (Burd Grubb and Henry Bates Grubb) being entitled to the remaining twosixths parts thereof, and that for this purpose an accurate survey shall be made of the said ore banks and hills, if not already done; and it is hereby declared to be the true intent and meaning thereof that neither of said parties, their agents or workmen, shall interfere or interrupt either of

11 Pom. Eq. Jur., § 401.

2 Mitchell v. Cline. 84 Cal. 409, 24 Pac. Rep. 164, 166.

the other parties at any mine hole by them occupied for the purpose of raising ore."

In all the litigation respecting those ore banks or the ore taken therefrom, this agreement has played an important part in defining their rights, and it has been frequently held that it is a covenant running with the land, which prevents partition. In some of these cases there was no dispute as to the effect of the contract, but only as to the correctness of two different surveys by which a sort of temporary partition was effected, and certain mine holes set off, temporarily or for life, to different co-tenants.2

3

In Grubb's Appeal it was held that the two sons of H. B. Grubb (one of the successors in estate of one of the original owners) were tenants in common and not partners notwithstanding they mined together. It will be noticed. that the agreement referred to the ore in the ore banks, and not to the furnace itself; by certain partition proceedings and conveyances, this furnace became the property of Alfred B. Grubb, and in two cases it was decided that by the acquisition of this furnace he secured a limited right, never accurately determined, to take a customary amount of ore from the ore beds for this furnace, the Mount Hope furnace.1

1489. Conveyances.- The law relative to conveyances between each other has received attention; it is settled that a conveyance by one co-tenant of an aliquot part of the common property, by metes and bounds, is absolutely void."

1 See Coleman's Appeal, 62 Pa. St. 252; Coleman v. Coleman, 19 Pa. St. 100; Grubb v. Grubb, 74 Pa. St. 25: Coleman v. Grubb, 23 Pa. St. 393; Blewett v. Coleman, 40 Pa. St. 45; s. C., Coleman v. Blewett, 43 Pa. St. 176; Grubb's Appeal, 66 Pa. St. 117; Grubb's Appeal, 90 Pa. St. 228; Grubb v. Grubb, 101 Pa. St. 11.

2 See Coleman v. Grubb, supra; Blewett v. Coleman, supra. 3 Grubb's Appeal, supra.

4 Grubb v. Grubb, 74 Pa. St. 25; Grubb's Appeal, 90 Pa. St. 228. See also Grubb v. Grubb, 101 Pa. St. 11.

5 Adam v. Briggs Iron Co., 7 Cush. 361; Bartlett v. Harlow, 12

The only manner in which one co-tenant may legally convey his interest is by describing it as a certain undivided part of the whole, or all his right, title and interest therein.1

§ 1490. Summary - The doctrine of this chapter restated. Within the limits necessary for the purposes of this work, the doctrine of co-tenancy, as applied to mining, may be thus summarized:

(a) A co-tenancy exists whenever two or more persons or corporations own mining interests in undivided portions.

(b) The doctrine which governs mining partnerships, that it requires a majority, either in numbers or interest, to work the mining property owned by them, has no application to a co-tenancy. But a mine so owned may be fairly and carefully worked by any co-tenant however small his interest.

(c) The operating co-tenant is bound to account to all the other non-consenting co-tenants, and may be compelled to do so by the proper action, and the measure of the account is generally the fair profits derived from prudent working of the property.

(d) It is not waste to work a mine in the ordinary way, if worked in a safe, prudent and careful manner.

(e) The operating co-tenant has the right of removal of all fixtures and machinery placed thereon by him, under the same circumstances, and no others, that a lessee could. Besides this right, he may also, if he desires and so elects, charge the reasonable value of necessary fixtures in his accounting with his co-tenants, and recover the same out of the proceeds, if not otherwise.

(f) Each co-tenant deals with all others at arm's length, and may lawfully buy or sell with, from or to them.

(g) The license of a tenant in common will protect a licensee in an action for damages, and may even be sufficient

Mass. 348; Varrum v. Abbot, 12 Mass. 474; Blossom v. Brightman, 21 Pick. 283; Baldwin v. Whiting,

13 Mass. 57; Peabody v. Minot, 24 Pick. 329.

1 See cases, note 5, ante, p. 1121.