#### *George R. Allen and Wife and others*vs. *James Barkley, Robert Belk and J. W. Belk.*

1. Complainants were the grand-children of R. B., and through their mother C. B. claimed four twenty-sevenths of a tract of land on which was situated a gold mine, the defendants being in possession. They had purchased the land from J. B. who acted under an authority from the heirs of R. B. The mother of complainants was *feme covert*and never conveyed her title. The claim of complainants was sustained, and they were declared entitled to an account of the rents and profits.

2. In raising the account the commissioner adopted the principle of allowing to the proprietor, in mining operations, one fourth of the gold found, clear of all charge of expenses in conducting the same, which was sustained by the Court.

3. Held, that the defendants could not he regarded as the trustees of the complainants; and that they were entitled to the rents and profits which, as proprietors of the land, they would have received from any other person.

4. The defendants, while in the possession of the premises, incurred expenses in defending their title at law against a person claiming by title paramount. Held., that the complainants were not bound to contribute in defraying the expenses of the suit.

*Before*Dunkin, Ch. *at Lancaster, July Term,*1842.

The complainants, Mrs. Allen and Robert and Sarah Beard, were the grand-children of Robert Barkley, who claimed a share of a tract of land, through their mother, Mrs. Catharine Beard. They were minors at the time the bill was filed. The defendants had purchased from James Barkley, who conveyed to them during the life of Mrs. Beard; she was a *feme covert,*and never conveyed her title. The title of the complainants was fully sustained by the decree of the Court, and a writ of partition and an account of rents and profits ordered between them and the defendants, the defendants being in possession. The principal question, as to rents and profits, related to the profits of a gold mine which was situated on the land. By the bill, the defendants were required to set out the proceeds of the mine, and the expenses of working it. By the exhibit filed with their answer, it appeared that the production of the mine, in gold and silver, amounted, as *265stated in the report of the Commissioner, to $5771 44, and that the expenses, including some costs of a suit at law which had been brought against them for the land, amounted to $1936, leaving a balance of $3665 44, as the profits to be divided, as the complainants contended, between themselves and the defendants, as tenants in common ; and if the defendants are not to be allowed their expenses in defending their title in the suit brought, the profits would be somewhat more- — those expenses, as set out in the exhibit of the defendants, being $148.

The case came up upon exceptions to the commissioner’s report, who, in making up the accounts, did not take the exhibits as evidence, and make them the basis of his calculations, but heard testimony of an usage to allow one-fourth of the proceeds of the gold mines to the proprietors, and allow three-fourths to the operatives for their work and labor. By the operation of that rule in this case, the parties being tenants in common, and the defendants the operatives, they get three-fourths for their labor, leaving one-fourth to be divided between themselves and the complainants. According to the calculations of the report, the one-fourth to be divided would amount to $1442 86, making a difference against the complainants of $2222 58, if the expenses of the suit at law be allowed the defendants, and a difference of $2370 58, if the said expenses be not allowed.

As the whole work was done in a few months, chiefly by the defendants themselves, in the . interval of making their crop, the complainants thought the allowance enormous ; and as their title was in no way involved, or their interests put in jeopardy, by the suit at law brought against the defendants by some third person, considered it inequitable that those expenses should be charged to them.

They therefore filed the following exceptions to the Commissioner’s report.

1. That the commissioner should not have adopted the usage, (as it is called) of allowing one-fourth to the owner of the mine, as the measure of rents and profits in this case, but should have made an estimate of the actual value of the profits of the mine, and should have taken testimony as to the expenses, and have struck the balance.

*2662. That the complainants being minors, are not bound by the usage, if any such usage exist.

3. That the commissioner should not have allowed the expense of the defendants, Belles, in defending their title at law, and in opposing the injunction, as a charge against the complainants.

Upon hearing argument, the Chancellor pronounced the following decree.

Dunkin, Ch. The Court can add nothing advantageously to the reasoning of the commissioner, in'reference to the subject matter of the complainants’s first and second exceptions. It is only to place the same thingin a different light, to say that .the owner of a mine is obliged to pay one-fourth of the product, for the labor and risk of working it, and the requisitions of the complainants’s argument are met. It is believed that the custom is not, in principle, peculiar to gold mines — Fisheries and Oyster Banks yield a profit to the proprietors in the same way. As to the third exception, the case of Mr. Hall, in *Deas*and *Manigault,*1 Bail. Eq. 283, seems conclusive. The exceptions are overruled and the report confirmed. .

1 he complainants appealed from the said decree, and relied in this Court upon the grounds made in the above stated exceptions, and upon the following additional ground.

That from the language of the decree, it appears to have been made under the misapprehension, that one-fourth of the products were allowed to the operatives, instead of three-fourths — to the allowance of which the complainants would not have objected, as it does not exceed the actual expenses.

M’Call, for the appellants,

cited Jacobs Rep. 297; 1 Eq. Rep. 191; 2 Story’s Eq. 325.

Clinton, contra,

cited 6 Yes. 93; 7 Id. 540.

Curia, *per*Dunkin, Ch.

The complainants were the grand-children of Robert Barkley. As the heirs at law of their mother, Mrs. Catherine Beard, they claimed four twenty-sevenths of a tract of land, on the Catawba, on *267which was a gold mine. The defendants, Robert and J. W. Belle, had purchased the land from James Barkley, who acted under an authority from the heirs of Robert Barkley, the person last seized. The power of attorney was executed by the mother of the complainants, while she was a *feme covert;*and under a decree heretofore pronounced, the claim of the complainants was sustained, and they were declared entitled, among other things, to an account of the rents and profits.

In taking the account, the commissioner received the testimony of several witnesses, who proved that, in mining-operations, the uniform usage was to allow to the proprietor one-fourth of the gold found, clear of all charge oí expenses in conducting the operations.

One of the witnesses, a practical miner of experience, testified that this was the highest rent he had ever known allowed. There was no diversity in the testimony, and the Commissioner adopted this rule in raising the account, which was confirmed by the Court.

The complainants excepted to the report, and now appeal from the decision of the Chancellor, on the ground that “ the Commissioner should have made an estimate of the actual value of the profits of the mine, and should, have taken testimony as to the expenses, and struck the balance, and especially as the complainants were minors.”

This court is satisfied with the judgment of the Commissioner, approved by the Chancellor. The defendants, (the Belles,) can in no manner be regarded as the trustees of the complainants; on the contrary, they claimed adversely to them; and the complainants are only entitled to the rents and profits, which, as proprietors of the land,

. they would have received from any other person. The witnesses proved what was the rent usually allowed. The mode of ascertaining it, is not peculiar to mining operations. Fisheries and Oyster Banks yield a profit to proprietors on a similar principle.

While the defendants were in possession of the premises, a suit was instituted against them by Matilda Briggs, claiming by title paramount. In the successful defence of this claim, the defendants incurred an expense of one hundred and twenty-five dollars, or thereabout, and insisted *268that the complainants should contribute their proportion, being about nineteen dollars; which claim was allowed by the Commissioner, and confirmed by the Chancellor.

We have just held, that the defendants could not be regarded as trustees for the complainants. It was not an expense incurred in the protection of a common fund, as in *Manigault &*Deas, cited in the Circuit decree; and although the amount is small, the court can perceive no principle on which it should be allowed. In this particular, the Commissioner must correct his account, which is, in all other respects, confirmed, and the appeal dismissed.

Harper and Johnson, Chancellors, concurred.