ary working of the mine. Coleman v. Chadwick, 80 Penn. St. 81; S. C., 21 Am. Rep. 93. See, also, Trout v. McDonald, 83 Penn. St. 144.

The right of the owner of lands to the enjoyment thereof is qualified by the rights of others. He may pursue any lawful trade thereon, but he cannot create a nuisance to the premises of another. In the prosecution of his own works he has no right to blast rocks so as to cast them upon the premises of another. Hay v. The Cohoes Company, 2 N. Y. (2 Comst.) 159. The true rule in regard to streams of running water is, that without regard to priority of location, each person mining on the same stream, is entitled to use in a proper and reasonable manner, both the channel of the stream and the water flowing therein. The question of reasonableness of the use is for the jury. Esmond v. Chew, 15 Cal. 137. And one may be restrained from throwing sawdust into a stream previously appropriated for mining purposes. Phoenix Water Co. v. Fletcher, 23 Cal. 481; Lewis v. Stein, 16 Ala. 214; Holsman v. Boiling Spring, etc., Co., 1 McCart. (N. J.) 335; Gerrish v. Brown, 51 Me. 256. And the first locators of mining ground have no right, by custom or otherwise, to allow tailings to run free in the gulch, and render valueless the mining claims of subsequent locators below them. Lincoln v. Rodgers, 1 Mont. 217; Nelson v. O'Neal, id. 284. But the right to throw refuse from mines into a natural stream may be asserted either by prescription or by custom. Carlyon v. Lovering, 26 L. J. Exch. 251; S. C., 1 Hurl. & N. 784; 40 Eng. L. & Eq. 448. A continued user for twenty years will legalize a private nuisance. Elliotson v. Feetham, 2 Bing. N. C. 134; Wright v. Williams, 1 M. & W. 77. See post, tit. Nuisances. § 11. Actions at law. An action of trespass may be maintained in respect of any improper interference with the enjoyment of mines in all those cases in which that remedy is generally applicable. Shaw v. Wallace, 1 Dutcher (N. J.), 453. This action is usually resorted to for trying the validity of a title. Bourne v. Taylor, 10 East, 189; Lord Feversham v. Emerson, 24 L. J. (N. S.) Exch. 254. The lessor of a mine may maintain an action of trespass on the case against his lessee, for an injury to his reversion, by an improper working of the mine. Marker v. Kenrick, 13 C. B. 188; S. C., 22 L. J. (N. S.) C. P. 129; McDonnell v. M'Kinty, 10 Irish L. R. 514.

A lessee, under an oral lease, which permits him to enter and take away ores from land, for a certain rent in kind, thereby acquires an interest in the land, that enables him to maintain trespass against third persons for mining therein. Ganter v. Atkinson, 35 Wis. 48.

The lessor. of a mine may recover as damages from one who has wrongfully taken ore from his mine, the value of the ore when less per ton

than the royalty per ton paid by the lessee, estimated as the ore lay in the bed, and not as it was after its value had been increased by the trespasser's raising it to the surface. Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80.

In an action of trespass for the breaking of a dam, whereby the workmen were driven from the mines by the water, evidence of the amount each miner would produce, and of the expense of keeping the mules employed in the mines whilst the mines could not be worked, is admissible in considering the question of damages. v. Bird, 60 Penn. St. 48.

Douty

An action of ejectment may be maintained to recover the possession of a mine. Comyn v. Kyneto, Cro. Jac. 150; Cullen v. Rich, Bull. N. P. 102; Whittingham v. Andrews, Carth. 277; S. C., 1 Salk. 255. All the rights and easements enjoyed with mines may be recovered with the subject-matter of which they are deemed to form a part. Crocker v. Fothergill, 2 B. & Ald. 661. But an action of ejectment will not properly lie in respect of a license only to work mines. Doe d. Hanley v. Wood, 2 B. &. Ald. 739; Beatty v. Gregory, 17 Iowa, 109; Shaw v. Wallace, 1 Dutcher (N. J.), 453.

When minerals are severed, they are mere personal chattels, and an action of trover is maintainable for their recovery in that condition. Grubb v. Bayard, 2 Wall. Jr. (C. C.) 81. And, although the title to mineral lands may remain in the United States, the ores, when dug or detached from the lands under a mining claim, are free from any lien, claim or title of the United States, and, becoming personal property, are, as such, subject to State taxation, in like manner as other personal property. Forbes v. Gracey, 94 U. S. (4 Otto) 762.

The general rule in ejectment suits, that the plaintiff must rely on the strength of his own title, is not applicable to suits concerning mining claims, for neither party has any legal title, strictly speaking. Richardson v. McNulty, 24 Cal. 339. In such action, if the plaintiff shows prior possession, the defendant cannot justify by showing the true title to be outstanding. Id.

An action of trover cannot be maintained for the recovery of a certificate or voucher of a person being entitled to certain shares in a mining association, if the plaintiff can show no legal title to the document. Dawson v. Rishworth, 1 B. & A. 574. A parol license is sufficient to maintain trover. Northam v. Bowden, 24 L. J Exch. 237; S. C., 11 Exch. 70; 32 Eng. L. & Eq. 559.

Whether a mining claim may be the subject of larceny or not, see People v. Williams, 35 Cal. 671.

To enable a party to maintain a right to a mining claim, after the right is acquired, it is necessary that he should continue substantially

to comply with the mining rules and customs which are in force where the claim is situated, and upon which it is made to depend. Oreamuno v. Uncle Sam, etc., Co. 1 Nev. 215.

§ 12. Actions in equity. Courts of equity have been accustomed to give relief, in certain cases, by injunction, to restrain persons from working mines. This remedy was always attainable in actions of waste; and it has been extended to trespasses in mining cases, for the purpose of preventing irreparable mischief. Gibson v. Smith, Barn. Ch. 497; Grey v. Duke of Northumberland, 13 Ves. 236; S. C., 17 id. 281; Clowes v. Beck, 20 L. J. C. C. 505; 13 Beav. 347.

An injunction has been granted to prohibit an owner, who has a limited right to take stone from a quarry in the land of another owner, from abusing his privilege (Thomas v. Oakley, 18 Ves. 184); to prevent a tenant from removing mineral substances deposited in a pool (Thomas v. Jones, 2 Y. & C. C. C. 510); to restrain the taking of valuable stones, or nodules of clay, used for making cement and found on the sea beach. Earl Cowper v. Baker, 17 Ves. 128.

The person in possession will always be entitled to an injunction against an adverse claimant when his acts are injurious to the inheritance. Lowndes v. Bettle, 33 L. J. Ch. 451; S. C., 13 Am. Law Reg. (N. S., Vol. IV) 169; Hess v. Winder, 34 Cal. 270; Munson v. Tyson, 6 Phila. 395.

A bill for an injunction is generally sustained in connection with an account. But, in mining cases, an account may be decreed, though the injunction be refused. Parrott v. Palmer, 3 Myl. & K. 632.

An injunction will be granted to protect coal mines from injury by water from another coal mine (Duke of Beaufort v. Morris, 6 Hare, 340. See, too, Thomas v. Jones, 2 Y. & C. C. C. 510); to protect plaintiffs (first locators) against the refuse coming down from defendant's higher location. Logan v. Driscoll, 19 Cal. 623. But the granting of the injunction in the last-mentioned case depends upon the character and extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would afford an adequate remedy; whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction. Atchison v. Peterson, 20 Wall. 508. By the act of congress of July 26, 1866, which provides "that, whenever by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and Vol. IV. 56

protected in the same," the customary law with respect to the use of water, which had grown up among occupants of the public land under the peculiar necessities of their condition, is recognized as valid. Basey v. Gallagher, 20 Wall. 670.

An injunction to restrain defendants from using the water of a stream for mining purposes will not be granted where the evidence shows only that the head of the plaintiff's ditch was fifteen miles below the defendant's mining ground; that the plaintiffs, who were the first appropri ators of the water, were compelled, on account of the working of the ground, to construct and maintain a sand reservoir, and use the water ten minutes daily to clean it, and employ, during that time, one man who was also employed on the ditch for other purposes. Atchison v. Peterson, 1 Mon. T. 561.

An injunction will be granted to restrain the prosecution of ejectment for the recovery of land which has been occupied for a coal breaker and expenditures made with the acquiescence and assent of the owner. Big Mountain Imp. Co.'s Appeal, 54 Penn. St. 361. Where a local custom gives the owner of one mining claim a right to construct a tunnel through an adjoining one, in order to enable him to work his own, a court of equity may enjoin any interference with that right. Bliss v. Kingdom, 46 Cal. 651. An injunction will be granted to prevent the continuance of a trespass in extracting mineral from a mine; especially when the trespasser is insolvent. Lockwood v. Lunsford, 56 Mo. 68.

An injunction will not be granted to restrain a lessee from working a coal pit irregularly and detrimentally to the lessor (Clavering v. Clavering, 2 P. W. 388); nor will it be granted when there is reasonable doubt concerning the direction or identity of faults or dykes which are referred to as boundaries. Davis v. Shepherd, 35 L. J. Ch. 581; S. C., L. R., 1 Ch. App. 410.

And a mine owner cannot be restrained from blasting in the nighttime, as is usual in mines, because it disturbs the sleep and thus affects the health of the owner of the surface and of his family, or diminishes the value of his estate. Marvin v. Brewster Iron Mining Co., 55 N. Y. (10 Sick.) 538; S. C., 14 Am. Rep. 322.

When mines are in danger of being ruined before the establishment of any rights relating to them, the court will entertain a bill of quia timet, for quieting the owners in the enjoyment of their rights, and will establish them by decree. Lord Falmouth v. Innys, Mosely,

87; Sayer v. Pierce, 1 Ves. 232.

Mining may be regarded as a species of trade, and a bill in equity may be brought for an account of the profits. Bishop of Winchester

v. Knight, 1 P. W. 406; Jesus College v. Bloome, 3 Atk. 262; Norway v. Rowe, 19 Ves. 144. Where mines are in the possession of assignees, or one of many persons entitled to share in the profits, all the reasonable expenses incurred in the management of the concern will be allowed in taking the account. Scott v. Nesbitt, 14 Ves. 445. A bill for an account may be brought by the owners or lessees of mines against their agents; and if there are mutual accounts, the court will restrain all proceedings at law, and direct the whole accounts to be taken in equity. Crease v. Penprase, 1 Jur. 840, Exch. A bill for an account may be brought by the mortgagor of mines against the mortgagee in respect of the proceeds arising during the period of his possession. Hughes v. Williams, 12 Ves. 493.

A bill in equity may be brought for determining questions of disputed boundaries in mining fields. Sayer v. Pierce, 1 Ves. Sr. 232. The interests of miners in mining claims and ditch property upon the public lands may be partitioned between the owners under the statute. Hughes v. Devlin, 23 Cal. 501.

In a mining case, a court of equity will (when proper) compel an inspection and survey of the works of the parties. Thornburg v. Savage Mining Co., 1 Pac. Mag. 267.

Where the vendor of a certain mine went east to sell shares therein and making misrepresentations of the quality and prospects of the mine, procured certain capitalists, the purchaser among others, to appoint a committee to go and investigate, and the committee reported that the representations were true, and the vendor made extravagant declarations of the rich prospects, but made no warranty or guaranty, it was held that such declarations and representations could only be regarded as the expression of an opinion about a matter of which the committee could judge for themselves, and that they formed no ground for setting aside the contract. Tuck v. Downing, 76 Ill. 71.

To prove the existence, quantity and quality of coal in certain lands, evidence is admissible that seams of coal have been opened and mined on other lands in the immediate vicinity and similarly situated, in connection with the opinion of witnesses skilled in the geological formation of the neighborhood, that like seams exist on the land in question. Stambaugh v. Smith, 23 Ohio St. 584.

To control the rule of common law requiring the owner of coal to leave sufficient support to sustain the surface a usage must be so ancient and uniform as to amount to a custom. Jones v. Wagner, 66

Penn. St. 429; 5 Am. Rep. 385.

The appropriate remedy for a breach of a contract, to convey an interest in a mining claim, is an action for specific performance. Felger v. Coward, 35 Cal. 650.