Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1886-10-14

a Recent Decision of q San Fran
cisco Court OF Interest to Miners.

A Recent Decision of q San Fran.
cisco Court ofInterest to Miners.
San Francisco Mining and Scientific Press.
A decision Of great interest TO miners
has been rendered In Department. 1, 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 defendants from ex-
tracing and removing gold from the min
ing claim of plaintiffs in Placer county.
Defendants had judgment, from which
and from an order denying a new trial
plaintiffs appeal.
The amended complaint AYERS that on
the 2Sth day OF August, 1883, the defend
ants entered into the tunnel which pene-
trates the mining claims in question, and
at a distance of about 2 1000 feet from its
mouth began to dig the collaborating
gravel and bedrock on the sides OF the tun.
mel and to take gold therefrom; that plain
tiffs required them to desist from 80 doing,
which they refused to do; that they have
continued such acts up to the time Of the
commencement of this action and threaten
to 80 contiue; that defendants are involved,
etc.
The answer to the amended complaint
denies all wrongful acts on the part of de-
PENDANTS and AYERS that ever since about
the 14th day Of February, 1888. and down
to and including the Let day Of September,
1883, these defendants were lawfully pos
sessed OF and were actually engaged iu
working and mining said part Of said
claim, pursuant to q contract and agree
ment between plaintiffs and themselves;
and defendants aver that they still are and
ak all timpa NINA tho LOT dov ~ GaDta.n
Der have been entitled, under said contract
and agreement, to continue the working OF
said part OF said claim"
Defendants justify their acts under this
contract, but do not plead it except to the
extent and in the manner above quoted.
At the trial the defendants were per-
mitted, against the objection Of plaintiffs,
to prove that plaintiffs and defendants ea-
tered into q verbal contract, by the terms
Of which defendants were permitted to
enter upon, occupy and mine q portion of
the Paragon mining claim, the property Of
plaintiffs, in consideration of the payment
to the plaintiffs by the defendants Of one.
fourth OF the gross yield OF gold TO be de-
rived from such mining. The objection
to the evidence under which this verbal
contract was established was based upon
"the ground that no contract was pleaded
in the answer, and no issue raised ON any
contract"
The Court decides that the verbal con-
tract Of February II, 1883. as found by
the Court and jury under which defendants
we're to enter and work o. certain portion
Of the mine il they saw fit, and to exercise
their own discretion whether they worked
1t or not, did not create the relation of
landlord and tenant between them and the
plaintiffs. The contract gave to them no
greater right and had no more force in
law than q verbal contract for the sale of
the land would have possessed. Their
right under such q contract was not in
and to the realty, but to the gold as per-
sonalty where it should be severed from
the land. Had 1t been In writing it would
have given to defendants merely an incor.
poreal hereditsment, and being verbal, 1t
operated as a license to them to dig and
mine for gold within the specified limits,
which license protected them from Q
charge OF trespass while n force, but was
liable TO revocation at the will Of the
lioensers.
There ia q broad distinction between O
lease OF q mine. under which the lessee
enters into possession and takes an estate
in the property, and. q license to work the
same mine.
In the latter case the Iicensee has no
permanent interest, property or estate in
the land itself, but only in the proceeds,
and in such proceeds not as realty, but as
personal property; and his possession, like
that of an individual under 9 contract
with the owner Of land to cut timber or
harvest 8 crop Of potatoes thereon for Q
share of the proceeds. is the possession Of
the owner.
The agreement was revocsble at the will
of the plaintiffs. and having been by them
revoked before suit was brought, plaintiffs
were entitled TO q recovery. For the
reasons given in the foregoing opinion the
judgment and order are reversed and
cause remsnded for a new trial, with leave
to defendants to amend their answer il 80
advised.