It has been held in California that a lease which did not bind the lessee to work was a mere license.Wheeler v. West, 11 Pac. 871; 20 Id. 45. The holding is an extreme one and ought not to become in conscience a precedent. In every lease, verbal or written, reserving royalty, there is an implied covenant to work (See p. 240) and the express obligation to work is not one of the distinctions between lease and license. The exclusive right to mine implies a lease and not a license.-Cons. Coal Co. v. Peers, 37 N. E. 937; Stinson v. Hardy, 41 Pac. 116.

The general nature of a license as distinguished from a lease or other like grant is stated in Massot v. Moses, 8 M. R. 607; Doe v. Wood, 9 M. R. 182.

1. Not Exclusive. -The owner may work himself, or allow others to work upon the same ground.Johnstown Co. v. Cambria Co. 9 M. R. 226; Woodside v. Ciceroni, 93 Fed. 1.

2. Passes no Property or Vested Estate.-A license is authority for the temporary occupation of land or to enter upon and do particular acts in and about it. It creates no estate.-Fuhr v. Dean, 6 M. R. 216. After it is broken by licensee the rock in a quarry belongs to him.-McKee v. Brooks, 20 Mo. 526.

3. Revocability.-Although revocable the owner cannot arbitrarily oust the licensee without compensation for expenditures made.-Bush v. Sullivan, 9 M. R. 214. After a proper revocation the licensee has no title in what he continues to break and sever.-Williams v. Morrison, 32 Fed. 177. A license once given continues till revoked.-Keeler v. Green, 12 M. R. 465. An executed license (to build a ditch) amounts to a grant.-De Graffenried v. Savage, 47 Pac. 902.

4. Not Assignable.-Being only a personal privilege any transfer operates as a forfeiture.-Dark v. Johnston, 9 M. R. 283. But if the license imply a grant of the ore it may be assigned.-Muskett v. Hill, 5 Bing.

N. C. 694.

By One Co-Tenant.-As to whether at all or to what extent the license of one or more of several co-tenants is valid, see Job v. Potton, 14 M. R. 329; Tipping v. Robbins, 37 N. W. 427; Omaha Co. v. Tabor, 16 M. R. 184.

PROSPECTING CONTRACT.

Much litigation has grown out of contracts of this kind owing to the loose manner in which they are generally undertaken and the strong inducements to shirk their obligations when a rich discovery has been made. -Murley v. Ennis, 12 M. R. 360; Johnstone v. Robinson, Id. 396.

The following form covers the legal points necessary to be guarded in this class of contract:

GRUB STAKE PROSPECTING CONTRACT.

In consideration of provisions advanced to me by Charles C. Rueger, and of his agreement to supply me from time to time, as I may reasonably demand them, with tools, grub and mining outfit generally, and the sum of fifty dollars in hand paid, agree to prospect for lodes and deposits in Silver Bow County, Montana, and to locate all discoveries which I may consider worth the expenditure, and record the same in the joint names of said outfitter and myself, and in our names only, as equal

owners.

My time and labor shall stand against his money, provisions, etc., as aforesaid. All expenses of survey and record shall be paid by the outfitter, and I agree to make no debts on account of this agreement. Work done on claims after record and before the expiration of this contract shall be considered as done under this contract, and no charge for labor or time shall be made for the same. This contract shall stand good during the whole of the summer and fall of 1900 (expiring Dec. 1st) and during all of that period I will not work or prospect on my own account, or for any parties other than said outfitter.

Dated April 1, 1900.

I agree to the terms above stated.

CHARLES BARRON.

CHARLES C. RUEGER.

Under the following form the prospector is allowed wages and takes a smaller interest in lodes found:

AGREEMENT of date March 7, A. D. 1900, between Augustus R. Specht, Charles J. Allen, and Arthur D. Bullis, outfitters, and John Owen, prospector.

WITNESSETH, That said outfitters agree to pay to said prospector on demand seventy-five dollars ($75) for the purchase of tools and packing outfit, and twenty-five dollars ($25) for railroad fare and expenses from Idaho Springs to Creede, and to allow said prospector wages at three dollars per day for each secular day after arrival at that place, until November 1, 1900, unless this contract is rescinded by notice before that date, and to pay all expenses of surveys and records to be made under this contract, and for powder, fuse and other mining materials if required by said prospector, to the extent of fifty dollars.

And in consideration of the premises, said prospector agrees industriously and to the best of his skill to prospect for lodes and deposits in the neighborhood of Creede camp, within the limits of Hinsdale, Rio Grande and Saguache counties, and to locate and record all discoveries which in his judgment are worth holding, in the joint names of all parties hereto-onefourth interest to each.

And that he will use no company name and make no debts against his associates.

And that he will at least once each month report progress and all discoveries made, by letter to said A. D. Bullis.

All work done in development after record shall be considered as work done under this agreement.

And said prospector agrees further not to prospect on his own account nor for any other persons during the lifetime of this contract and if at any time within one year thereafter he shall become interested by location or purchase in any claims on which he may have prospected under this contract, he will allow his associates to take an equal interest with himself on the same terms and at the same cost at which he has acquired such interest.

On final settlement full wages are to be allowed as above agreed, but said prospector shall be charged with his full fourth of any expenses over and above the sums herein expressed, and shall account and pay for all tools and supplies on hand when contract expires, if terminated on his notice; but shall keep such tools and supplies if contract determined at outfitters' election, or by expiration of the full term limited, or by failure to remit proper charges monthly on demand. And the said prospector shall have no right to quit on notice until he shall have prospected two full months under this agreement. Witness the hands and seals of said parties.

The contract does not require a seal, and is not within the Statute of Frauds, and therefore may be verbal.-Murley v. Ennis, supra; Moritz v. Lavelle, 18 Pac. 803; Meylette v. Brennan, 38 Pac. 75; Raymond v. Johnson, 49 Pac. 492. There is an isolated contrary ruling in Nevada.-Craw v. Wilson, 40 Pac. 1076.

The association is practically a partnership.-Lawrence v. Robinson, 12 M. R. 387; Abbott v. Smith, 3 Colo. App. 265..

If the outfitter neglect to furnish the agreed and necessary supplies, such failure may be treated as a condition precedent, and the prospector is at liberty to search for mineral upon his own account.-Murley v. Ennis, supra.

Where a prospector made locations which he concealed from his outfitters, and afterwards sold, he was compelled to account for the outfitters' share of the price.-Jennings v. Rickard, 15 M. R. 624.

But he was not held in this instance to account to outfitter for any share in a lode, the float of which he discovered while prospecting, but did not find the lode till afterward. Of course the rule in such cases must. vary according to the facts and the good faith in the premises.

Where an association for prospecting purposes is abandoned, the several late partners may perfect locations on discoveries made on their several account. -Page v. Summers, 15 M. R. 617. If one of the associates quit before mineral is struck he cannot claim an interest in the perfected location.-McLaughlin v. Thompson, 29 Pac. 816.

Permission by the owner to prospect his ground must be exercised within a reasonable time.-Cahoon v. Bayaud, 1 N. Y. Sup. 814. On contract to prospect and test land for mineral value, for what amounts to sufficient search, see Wells v. Leek, 25 Atl. 101; Jamestown Co. v. Egbert, Id. 151; Petroleum Co. v. Coal Co. 18 S. W. 65.

EXAMINATION OF TITLE.

The written title to a mining claim begins with the location certificate, after which the conveyances and incumbrances should appear upon the abstract as in other classes of real estate.

Inspection and Survey.—In addition to the abstract of title a survey and local inspection are indispensable to security.

This inspection and survey should result in ascertaining the depth of discovery shaft, and whether it shows a well defined crevice; whether the location notice was duly posted and what it contains (p. 35); whether the stakes were properly set; whether the claim (as far as such fact can be fairly ascertained) is laid so as to cover the apex or general course of the lode, and more especially what shafts, tunnels, prospect holes, stakes, notices and improvements, indicate the presence of hostile claims; and if such intervening or overlapping hostile claims are found, the seniority or juniority should be established.

The abstract (at least until patent) may show a clear chain of title, and may be based on a record senior to other records on the same vein, and still the title may be absolutely worthless.—Patterson v. Hitchcock, 5 M. R. 542.

An adverse senior discovery may exist within a few feet of the discovery of the claim under examination. Every hole or stake in proximity to the claim should be examined, its history traced, and the possibility of danger from that source guarded against.

Whether the annual labor has been done should also be ascertained.

Such inspection having been made, the course of examination will be as follows, the points peculiar to the title, as a mining title, being noted as they occur: