Wood River times. [volume] (Hailey, Idaho) 1882-1915, 1886-10-18
VERBAL LEASES OF MINES.
They are Reyocable at the viii OF the
LiceuSers.


A decision of great interest to
miners has been rendered in Depart.
ment = of the Superior Court, In this
city. In effect the decision is that
verbal leases of mines may be revoked
at the lessons will. The action was
brought TO perpetually enjoin the de-
PENDANTS from extracting and remov-
ing gold from the mining claim of
plaintiffs in Placer county.
Defendants got Judgment, from
which and an order denying a new
trial plaintiffs appeal.
The amended complaint AYERS that
on the 2Sth day of August, 1888, the
defendants entered into the tunnel
which penetrates the mining claims
IN question and at distance of about
1000 feet from its mouth began to dig
the gold bearing gravel and bedrock
on the sides Of the tunnel and to take
the gold Their from that plaintiffs re-
CURED them to d"sist from so doing,
which they refused to do; that they
have continued such acts up to the
time Of the commencement of this &C.
ton, and threaten so to continue; that
defendants are insolvent, etc.
The answer to the amended com.
plant denies all wrongful acts on the
part of defendants, and AYERS "that
ever since about the 14th dav of Feb
ruary, 1888, and down to and includ-
ing the lst day of September, 1888,
these defendants were lawfully pos
sessed of, and were actually engaged
in working and mining said part of
said claim, pursuant to a contract and
agreement between plaintiffs and
themselves; and defendants aver that
they still are and at all times since the
lst day of September have been emit
tied, under said contract and agree
ment, to continue the working of said
part of said claim"
Defendants justify their acts under
this contract, but do not plead it ex-
cept to the extent and in the manner
above quoted.
At the trial the defendants were
permitted, against the objection of
plaintiffs, to prove that plaintiffs and
defendants entered into a verbal con-
tract, by the terms of which defend
ants were permitted to enter upon,
occupy and mine portion of the Par
agon mining claim, the property of
plaintiffs, in consideration of the pay.
ment to plaintiffs by the defendants of
one fourth of the gross yield of gold
to be derived from such mining. The
direction to the evidence under which
this verbal contract was established
was based upon ''the ground that no
contract was pleaded in answer, and
no issue raised on any contract"
TIE court decides that the verbal
contract of February IA, 1888, as
found by the court and jury under
which defendants were to enter and
work a certain portion of the mine il
they saw fit, and to exercise their own
discretion whether they worked it OIL
not, did not create the relation oil
: landlord and tenant between them
and the plaintiffs. The contract gave
to them no greater right and had nc
, more force in law than a verbal con
tract for the sale of the land woule
have possessed. Their right unde
such contract was not in and to the
realty, but to the gold as personalt,
where it should be severed from thu
land. Had it been in writing II
would have given to the defendant
merely an incorporeal hereditament
l and being verbal, it operated as
license to them to dig and mine TO
: gold within the specified limits, whic
I license protected them from charg
of trespass while in force, but wa
liable to revocation at the will of tn
I licensers.
y There is broad distinction between
d lease of mine, under which tn
, lessee enters into possession an
takes an estate in the property, and
license to work the same mine.
n In the latter case the licensee has n
s permanent interest, property or estat
d in the land itself but only in the pre-
ceeds, and in such proceeds not d
realty, bat as personal property; an
II his possession, like that of all md
II vidual under a contract with tn
o owner Of land to cut timber or hal
vest crop of potatoes thereon for
share of the proceeds, is the posses
sion of the owner.
The agreement was revocable
e, the will of the plaintiffs, and havin
S. been by them revoked before suit WI
IF brought, plaintiffs were entitled to
, recovery. For the reasons given
the foregoing opinion the judgme'
TT and order are reversed and cause r
lie manded for a new trial, with leave
hi defendants to amend their answer
co a6vioa6