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make it reasonably probable that injury will not occur in the exercise of the employment; and second, that, as far as he can by reasonable care, he shall avoid exposing his servant to extraordinary risks. Wonder v. Baltimore & Ohio R. R. Co., 32 Md. 411; S. C., 3 Am. Rep. 143; Hardy v. Carolina, etc., Railway Co., 76 N. C. 5; Hill v. Gust, 55 Ind. 45.

§ 9. Master not liable for the servant's criminal acts. A master is not, as a general rule, criminally responsible for the acts of his servants, unless he expressly command or personally co-operate with them. In criminal cases each must answer for his own acts, and stand or fall by his own behavior. Rex v. Huggins, 2 Strange, 882; S. C., 2 Ld. Raym. 1574; Sturmy v. Smith, 11 East, 25; Sloan v. State, 8 Ind. 312. See Sweat v. Rogers, 6 Heisk. (Tenn.) 117. But if a man does, by means of an innocent agent, an act which amounts to a felony, the employer and not the agent is accountable for that act. Reg. v. Bleasdale, 2 Carr. & K. 765. And see Reg. v. Gruncell, 9 Carr. & P. 356. So there are cases in which the act of the servant, having been within the usual scope of his employment, has been considered as having been done by the implied command of the master, and he has been held criminally responsible therefor. Thus the publishers and proprietors of newspapers and other publications have been held liable to criminal informations for libels published by their servants in the usual course of their employment, although personally, they had nothing to do with the publication of the libels. Rex v. Almon, 5 Burr. 2686; Rex v. Baldwin, 8 Ad. & El. 168; Rex v. Walter, 3 Esp. 21. And masters have been held liable to informations for penalties incurred by the breach of some statutory regulation by persons in their employ, although the masters themselves may have been entirely ignorant that in the particular instance any breach of the law had been committed. See Attorney-General v. Siddon, 1 Cr. & J. 226; Rex v. Dixon, 4 Camp. 12; S. C., 3 M. & S. 11; State v. Wentworth, 65 Me. 234 S. C., 20 Am. Rep. 688; Goodhue v. Dix, 2 Gray, 181. So, according to the English rule, masters are liable to indictment for public nuisances committed by their servants, although the masters have nothing to do personally with the nuisance complained of. Tuberville v. Stampe, 1 Ld. Raym. 264; Rex v. Medley 6 Carr: & P. 292; Reg. v. Great North of England Railway Co., 9 Q. B. 315; Smith's Mast. & Serv. 148.

§ 10. Servants of municipal corporations. Municipal corpora tions are liable for the wrongful acts and neglects of their servants and agents done in the course and within the scope of their employment, in the same manner, and to the same extent, as natural persons.

Scott v. Mayor, etc., of Manchester, 37 Eng. Law & Eq. 495; Clark v. Washington, 12 Wheat. 40; Meares v. Wilmington, 9 Ired. (N. C.) 73 ; Hildreth v. City of Lowell, 11 Gray, 345; Dayton v. Pease, 4 Ohio St. 80; Lee v. Village of Sandy Hill, 40 N. Y. (1 Hand) 442; Buffalo, etc., Turnpike Co. v. City of Buffalo, 58 N. Y. (13 Sick.) 639. The difficulty usually experienced is in determining, in any particular case, whether the negligent employee is the servant of the municipality. As aiding in such determination, the distinction should be observed between an exercise of those legislative powers which a municipal corporation holds for public purposes, and as part of the government of the country, and those private franchises which belong to it, as a creature of the law. Within the sphere of the former, it enjoys the exemption of the government from responsibility for its own acts, and for the acts of those who are independent corporate officers, deriving their rights and duties from the sovereign power. Eastman v. Meredith, 36 N. H. 284; Fisher v. Boston, 104 Mass. 87; 6 Am. Rep. 196; Maxmilian v. Mayor, 62 N. Y. (17 Sick.) 160; S. C., 20 Am. Rep. 468; Mead v. New Haven, 40 Conn. 72; S. C., 16 Am. Rep. 14; Elliott v. Philadelphia, 75 Penn. St. 347; S. C., 15 Am. Rep. 591; Ogg v. Lansing, 35 Iowa, 495; S. C., 14 Am. Rep. 499. But where, in the exercise of those private franchises which belong to it as a creature of the law, it is responsible for the acts of those who are in law its agents, though they may not be appointed by itself. Id.; Grimes v. Keene, 52 N. H. 330; Hardy v. Keene, id. 370; County Commissioners v. Duckett, 20 Md. 468; Prather v. Lexington, 13 B. Monr. (Ky.) 559; Alcorn v. Philadelphia, 44 Penn. St. 348. And see Oliver v. Worcester, 102 Mass. 489, 499; S. C., 3 Am. Rep. 485, where this distinction is very clearly stated and illustrated. See post, title Municipal Corporations.

§ 11. Servants of private corporations. See vol. II, 72, 337. In respect to wrongs, the same rule is now applied to corporations as to individuals. The act of the agent is the act of the principal as much in one case as in the other. A corporation will, therefore, be liable for an injury done by its servants, if, under like circumstances, an individual would be responsible. Turnpike Company v. Rutter, 4 Serg. & R. 6; First Baptist Church v. Schenectady, etc., R. R. Co., 5 Barb. 79; Lee v. Village of Sandy Hill, 40 N. Y. (1 Hand) 442; Albert v. Savings Bank of Baltimore, 1 Md. Ch. 407; Bargate v. Shortridge, 31 Eng. Law & Eq. 44; Sharrod v. London Railway Co., 4 Exch. 585; Beers v. Housatonic R. R. Co., 19 Conn. 566; Michigan Central R. R. Co. v. Dolan, 32 Mich. 510.

CHAPTER XCV.

MINES AND MINING.

ARTICLE I.

OF MINES AND MINERALS GENERALLY.

Section 1. Definition. Minerals are fossil bodies or matters dug out of mines or quarries, whence any thing may be dug. 2 Bouv. Law Dict. 180. The term "mineral" comprises all substances which now form, or which once formed, part of the solid body of the earth, both external and internal, and which are destitute of animal or vegetable life and incapable of supporting either. It embraces the bare granite of the loftiest mountain and the deepest hidden diamonds and metallic ores. Earl of Rosse v. Wainman, 14 M. & W. 859; S. C., 2 Exch. 800; 15 L. J. Exch. 67; Micklethwait v. Winter, 6 Exch. 644; S. C., 20 L. J. Exch. 313; 5 Eng. Law & Eq. 526.

A mine is an excavation in the earth for the purpose of obtaining minerals; and it may be either by excavating a portion of the surface, as is common in some classes of gold mines, or almost entirely beneath the surface. 2 Bouv. Law Dict. 180. It is the pit or excavation in the earth from which the ore is taken. The ore may extend indefinitely, but the mine is the pit from which it is extracted. Shaw v. Wallace, 1 Dutch. (N. J.) 453.

A reservation, in an act, of "mines and minerals within and under " lands, includes stone used for road-making and paving, and quarries, as well as underground mines. Midland R. Co. v. Checkley, L. R., 4 Eq. 19.

§ 2. Ownership of minerals. Mines of gold, silver and the precious stones belong to the sovereign (1 Plowd. 310; 3 Kent's Com. 378, n.); but they are held by him concurrently with the ownership of the soil, and pass by a grant of the land without exception or reservation. Fremont v. Flower, 17 Cal. 199. In most of the royal charters under which this country was settled the grant of the soil expressly includes "all mines," as well as every other thing included or borne in or upon it, reserving as a rent only, in the reddendum, one-fourth or one-fifth part of all the gold and silver ore, to be delivered at the pit's mouth, free of

charge. Bainb. Mines and Mining, n. pp. 37, 38. The rule seems now to be finally settled that to the owner of the soil, whether the government or a private individual, the minerals belong as a part of the land, and not to the government as an incident of sovereignty. Ah Hee v. Crippen, 19 Cal. 491; Mining Co. v. Boggs, 3 Wall. 304; S. C., 14 Cal. 279; United States v. Castillero, 2 Black (U. S.), 17; United States v. Parrott, 1 McAll. 271; Fremont v. United States, 17 How. (U. S.) 542. See Goldhill Q. M. Co. v. Ish, 5 Oreg. 104.

Prima facie, the owner of land is entitled to the surface itself, and all below it, ex jure naturæ; those who seek to derogate from that right must do so by some grant or conveyance. Rowbotham v. Wilson, 3 El. & El. 752; Curtis v. Daniel, 10 East, 273; Barnes v. Mawson, 1 M. & Sel. 84. But a mine may form a distinct possession and a different inheritance from the land. Cullen v. Rich, Bull. N. P. 102; S. C., 2 Str. 1142. And it is an occurrence quite common in mining districts for the ownership of the soil to be vested in one person, and that of the mines in another. Stewart v. Chadwick, 8 Clarke (Iowa), 463; Adam v. Briggs Iron Co., 7 Cush. 361. And there may be distinct ownerships in different descriptions of mineral, and in different deposits or strata of the same kind of mineral. Thus, one person may be entitled to the iron, and another to the limestone; one seam or stratum of coal, in the same lands, may belong to a third person, and another distinct seam to a fourth owner. Bainb. 4, 5; Ryckman v. Gillis, 57 N. Y. (12 Sick.) 68; S. C., 15 Am. Rep. 464. Coal and mineral in place are land, and the owner of the mineral right has a hereditament distinct from the surface. Caldwell v. Fulton, 31 Penn. St. 475. But where there is not an exclusive right to dig all the coal, it is an incorporeal hereditament. Dark v. Johnston, 55 Penn. St. 164. Where the mineral in freehold lands is adversely claimed, the claim must be distinctly established against the owner of the surface. Rowbotham v. Wilson, 3 El. & El. 752. The rights of the grantee of the minerals depend on the terms of the deed by which they are conveyed; and under a grant of minerals a power to get them is a necessary incident. In the absence of documentary evidence, or in opposition to it, a title to minerals may be made out by proof of acts of ownership and length of possession. Barnes v. Mawson, 1 Maule & Selw. 77; Desloge v. Pearce, 38 Mo. 588. But reputation of ownership alone is not suffi cient to repel the presumption of law in favor of the owner of the surface. It must be accompanied with a uniform usage and exercise of the right, resting on clear and indisputable facts. Barnes v. Mawson, 1 Maule & Selw. 77. But where there has once been a severance of the title to the surface from the title to the minerals below it, possession of

the surface, without proof of possession of the mineral strata, will not avail to establish title to the minerals by adverse possession. There should be possession of the mine or mineral strata as such. Caldwell v. Copeland, 37 Penn. St. 427; Arnold v. Stevens, 24 Pick. 106.

When the absolute title to streets is vested in the trustees of a town, and not merely an easement over them, for the use of the public, the trustees own the coal which is under the surface of such streets. Hawesville v. Hawes, 6 Bush (Ky.), 232.

When the surface and minerals belong to separate owners, the owner of the surface is prima facie entitled to the support of the subjacent strata; and the owner of the minerals is bound so to work the mines as to leave sufficient support for the surface; but these rights may be varied by express stipulation. Smart v. Morton, 30 Eng. Law & Eq. 385; Marvin v. Brewster Iron Mining Co., 55 N. Y. (10 Sick.) 538; S. C., 14 Am. Rep. 322; Coleman v. Chadwick, 80 Penn. St. 81; 21 Am. Rep. 93; Horner v. Watson, 79 Penn. St. 242; S. C., 21 Am. Rep. 55; Ryckman v. Gillis, 57 N. Y. (12 Sick.) 68; S. C., 15 Am. Rep. 464.

By statute the mineral lands of the United States are open to purchase by the citizens, under the regulations prescribed by law and according to the local customs or rules of the mines in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States. See U. S. Rev. Stat., p. 427, § 2319. And there is no presumption of a grant in favor of the possessors of public lands as against a grantee of the United States. Doran v. R. R. Co., 24 Cal. 245; Fremont v. Seals, 18 id. 433. But in a possessory action between persons, in any court of the United States, for the recovery of any mining title, or for damages to any such title, the fact that the paramount title to the lands in which such mines lie is in the United States, shall have no effect; but each case shall be adjudged by the law of possession. U. S. Rev. Stat., p. 171, § 910. See, also, Hughes v. Devlin, 23 Cal. 501.

An alien who has never declared his intention to become a citizen, is not a qualified locator of mining ground, and he cannot hold a mining claim either by actual possession or by location against one who connects himself with the government title by compliance with the mining law. Golden Fleece v. Cable Consolidated Mining Co., 12 Nev. 312. See Territory of Montana v. Lee, 2 Mont. 124.

Possession of public mineral lands is good against strangers except where it is held and used by such possessor for grazing or agriculture and is entered upon bona fide for mining purposes. Lentz v. Victor, 17 Cal. 271; Rupley v. Welch, 23 id. 453.

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