Page images
PDF
EPUB

L. 1909, cha 50

Mines

$$ 82-84

state or state treasurer in regard to such royalty, shall work a forfeiture to the state of the value of the whole amount mined during the period covered by such statements.

This section was derived from the Public Lands Law of 1894, § 81.

Right of discoverer to bring ejectment.- One who has discovered a mine upon lands belonging to the state and who has filed the statutory notice and obtained the consent of the commissioners of the land office, does not thereby acquire a legal title to the mine or the minerals therein, and he cannot therefore maintain ejectment to recover possession. Moore v. Brown, (1893) 139 N. Y. 127, 34 N. E. 772.

§ 82. Private property in mines. All mines of whatever description, other than mines of gold and silver, discovered, or hereafter to be discovered, upon any lands owned by a citizen of any of the l'nited States, the ore of which, on an average, contains two two equal third parts or more in value of copper, tin, iron and lead, or any of those metals, shall belong to the owner of such land.

This section was derived from the Public Lands Law of 1894, § 82.

8 83. Notice of discovery; bounty to discoverer. No person discovering a mine of gold or silver within this state shall work the same until he gives written notice thereof to the secretary of state, which shall be registered in a book to be kept by such secretary, describing particularly the nature and situation of the mine. Such person and his executors, administrators and assigns, shall be exempted from paying to the people of the state any part of the ore, produce or protit of such mine for the term of twentyone years, to be computed from the time of giving notice of such discovery; and after the expiration of such term, the discoverer, his heirs or assigns, shall have the sole benetit of all products therefrom on the payment into the state treasury of a royalty of one per centum of the market value of all such products. A statement of the amounts sold or removed from the premises coverer by such notice of claim, together with the market values thereof, shall be made semi-annually, under oath, to the secretary of state, and payments of such royalty shall be made semiannually to the state treasurer, under oath as to the amount thereof, on the basis of such semi-annual statement to the secretary of state. Any wilful falsehood in the contents of such statement to the secretary of state or state treasurer in regard to such royalty, shall work a forfeiture to the state of the value of the whole amount mined during the period covered by such statements. From time to time the legislature may provide for a different rate of compensation to be paid to the state.

This section was derived from the Public Lands Law of 1894, § 83, as amended by L. 1901, ch. 416, § 1.

§ 84. Permission for entry upon lands to work mines. Nothing contained in this article shall affect any grant heretofore

§ 85

Mines

L. 1909, cha 50

made by the legislature to persons having discovered mines; nor be construed to give any person a right to enter upon or break up the lands of any other person, or of the state, or to work any mine in such lands, unless the written consent of the owner thereof, or of the commissioners of the land office, when the lands belong to the state, shall be previously obtained. Permission to erect buildings for working mines upon state lands within the forest preserve may be given by the forest commission, and elsewhere, by the commissioners of the land office, when such lands are entirely denuded of timber or when such commission or commissioners are satisfied that the erection or occupation of such buildings will not be detrimental to the interests of the state. Nothing in this article shall authorize any person working a mine upon state lands to cut or destroy any timber whatever except such trees as it may be actually necessary to remove in order to uncover or make a road to such mine. For each tree measuring four inches or more in diameter at a height of one foot from the ground, which shall be so cut, the party operating the mine shall pay into the state treasury the sum of one dollar.

This section was derived from the Public Lands Law of 1894, § 84.

Permission to work mine in forest preserve.- Permission to work a garnet mine in the forest preserve is not a violation of section 7, article 7 of the state constitution, forbidding the leasing, selling or exchanging of lands constituting a part of the forest preserve, and permission to do so may be given by the commissioners of the land oflice if no growing timber is to be damaged or destroyed. Op. Atty.-Gen. (1901) 334; Op. Atty.-Gen. (1895) 373. See also Op. Atty.-Gen. (1910) 425; Op. Atty.-Gen. (1908) 579.

$ 85. Entry by corporation to work mines. Corporations formed for the purpose of working and having lawful authority to work mines found within this state may acquire the right and easement to enter upon and break up lands necessary for the operation of such mines, and if the written consent of the person in or about whose lands such mine or mines are found shall be refused or can not be obtained by agreement, or by reason of the infancy or absence of such person from the state, or other legal disability of the owners of such lands, every such corporation may acquire such right and easement by condemnation, which right and easement when so acquired shall be deemed to have been so granted for a public use and for the public purpose of obtaining minerals reserved to the state. Before instituting any proceeding for such condemnation the corporation shall file with the commissioners of the land office, a full description of the location of such lands and obtain a grant of the right to acquire such right and casement from such commissioners who are authorized to make the same and fix the terms thereof.

This section was derived from the Public Lands Law of 1994, § 85.
Cited.— This section was cited in Op. Atty.-Gen. (1905) 591.

L. 1909, chu 50

Mineral Springs

§ 90

ARTICLES

MINERAL SPRINGS

Section 90. Accelerating or impeding flow of mineral waters.

91. Action to restrain.
92. Limitation of article.

$ 90. Accelerating or impeding flow of mineral waters. Pumping, or by any artificial contrivance whatsoever in any manner accelerating the natural flow, or producing an unnatural flow of that class of mineral waters holding in solution natural mineral salts and an excess of carbonię acid gas from any well made by boring or drilling into the rock, or pumping, or by any artificial contrivance whatsoever in any manner accelerating the natural flow or producing an unnatural flow, of natural carbonic acid gas issuing from or contained in any well made by boring or drilling into the rock, is hereby declared to be unlawful. Pumping, or by any artificial contrivance whatsoever in any manner accelerating the natural flow, or producing an unnatural flow, of that class of mineral waters holding in solution natural min. eral salts and an excess of carbonic acid gas from any well made by boring or drilling into the rock, or pumping, or by any artificial contrivance whatsoever in any manner accelerating the natural flow, or producing an umatural tow of, natural carbonic acid gas issuing from or contained in any well made by boring or drilling into the rock, by reason whereof the natural flow from any mineral spring or any mineral well belonging to any other person or corporation, is impeded, retarded, diminished, diverted or endangered, or the quality of its waters is impaired, or the quantity of its carbonic acid gas or mineral ingredients diminished, is hereby declared to be unlawful. Pumping, or otherwise drawing by artificial appliance from any well made by boring or drilling into the rock, that class of mineral waters holding in solution natural mineral salts and an excess of carbonic acid gas, or pumping, or by any artificial contrivance whatsoever in any manner producing an unnatural flow of, carbonic acid gas issuing from or contained in any well made by boring or drilling into the rock, for the purpose of extracting, collecting, compressing, liquefying or vendling such gas is a commodity otherwise than in connection with the mineral water and the other mineral ingredients with which it was associated, is hereby declared to be unlawful. The doing of any act or thing whatsoever whereby the natural flow from any spring or well of that class of mineral waters holding in solution natural mineral salts and an excess of carbonic acid gas, is impeded, retarded, diminishel, diverted or

§ 91

Mineral Springs

L. 1909, cha 50

endangered, or the quality of its waters is impaired, or the quantity of its carbonic acid gas or mineral ingredients diminished, is hereby declared to be unlawful.

This section was derived from L. 1908, ch. 429, § 1.

Constitutionality.— In Hathorn v. Natural Carbonic Gas Co., (1909) 194 N. Y. 326, 87 N. E. 504, 16 Ann. Cas. 989, 128 A. S. R. 555, 23 L. R. A. 436, affirming 128 App. Div. 33, 112 N. Y. S. 374, which modified and affirmed 60 Misc. 341, 113 N. Y. S. 458, the court held the first, second and fourth prohibitions of the present statute invalid, but upheld the third prohibition as a valid exercise of legislative power, and reached the conclusion that a landowner may by pumps or otherwise draw on the waters percolating under the surface of his lands for a purpose naturally and legitimately connected with the improvement and enjoyment of his lands, even though it interferes with others, but that an unreasonable attempt to force and increase the flow of such waters for the purpose of diverting them to some use entirely disconnected with such improvement and enjoyment, and whereby the flow of such waters under the lands of others is destroyed or diminished, may be restrained as unlawful. As said in Lindsley v. Natural Carbonic Gas Co., (1911) 220 U. S. 61, 31 S. Ct. 337, 55 C. S. (L. ed.) 369, Ann. Cas. 1912C 160, the court construed the provision of the statute, which was upheld, prohibiting the specified acts absolutely or unqualifiedly, but only when the mineral waters are drawn from a source of supply not confined to the lands of the actor but extending into or through the lands of others, and then only when the draft made upon that source of supply is unreasonable or wasteful, considering that there is a coequal right in all the surface owners to draw upon it. In other words, the court, by processes of interpretation having its approval, read into the provision an exception or qualification making it inapplicable where the waters are not drawn from a common source of supply, and also where, if they be drawn from such a source, no injury is done thereby to others having a like right to resort to it."

In People v. New York Carbonic Acid Gas Co., (1909) 196 N. Y. 421, 90 N. E. 441, the holding of the court in Hathorn v. Natural Carbonic Gas Co., supra, was explained and approved. In Lindsley v. Natural Carbonic Gas Co., (1911) 2:20l'. S. 61, 31 S. ('t. 337, 55 U S. (L. ed.) 369, Ann. Cas. 1912C160, affirming 170 Fed. 1023, it was held that the provision of the statute which was upheld in the Hathorn case violated no right secured by the Federal Constitution. See also in this connection Lindsley v. Natural Carbonic Gas ('o., (1908) 162 Fed. 954; llathorn v. Natural Carbonic Gas Co., (1914) 163 App. Div. 768, 149 N. Y. S. 176, modifying order 83 Misc. 582, 146 N. Y. S. 271.

“ not as

§ 91. Action to restrain. Any citizen of the state may maintain an action to restrain any person or corporation from committing any of the unlawful acts specified in section ninety of this chapter, in any city or town in which said citizen is assessed for and is liable to pay, or within one year before the commencement of the action has pail, a tax.

The attorney-general may at any time, in the exercise of his discretion, bring and maintain an action in the name of the people of the state of New York, to restrain any person or corporation from any of the unlawful acts specified in section ninety of this chapter. It shall be the duty of the attorney-general to institute and prosecute such an action, upon the written request of ten citizens of this state who are assessed for taxes therein and whose aggregate assessments amount to not less than ten thousand dollars, and who shall state, in writing, facts and circumstances showing any such unlawful act or acts and give an undertaking

[ocr errors]

L. 1909, cha 50

Mineral Springs

§ 92

with sureties to be approved by a justice of the supreme court to indemnify the people against the costs of such action. The provisions of section eight hundred and seventy of the code of civil procedure shall apply to any action brought under this article and no person shall be excused from answering on the ground that his examination would tend to convict him of crime, but such answers shall not be used against him in any criminal prosecution for violating the provisions of this article.

This section was derived from L. 1908, ch. 429, S$ 2, 3, 4.

$ 92. Limitation of article. Nothing in this article contained shall be construed to affect the Onondaga salt springs reservation, located in Onondaga county, or the springs of any county adjacent thereto.

This section was derived from L. 1908, ch. 129, § 5.

« PreviousContinue »