The White Pine news. [volume] (Treasure City, Nev.) 1868-1906, 1886-10-23
VERBAL LEASES OF MINES.
A Recent Decision Of n San Francisco
Court Of Interest 10 Miners.


[san Francisco Mining and Scientific Press.
A decision Of great interest to miners has
been rendered in Department /, 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 perpetualy enjoin
defendants from extracting and removing gold
from the mining claim of plaintiffs In Placer
county.
Defendants had judgment, from. viii oh and
from an order denying new trial plaintiffs
appeal.
The amended complaint AYERS that on the
18th day of August, 1888, the defendants en-
tered into the tunnel which penetrates tho
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 NJ take gold there
from; that plaintiffs sicquired them to desist
from 50 doing, which they refused to do; that
they have continued such acts up to the COM
meneement of this action and threaten to so
continue; that defenda ntsiare involved, etc.
The answer to the amended complaint de
mics all wrongful acts on the part of the de-
PENDANTS and AYERS that ever since about the
18th day of February, 1888, and down to and
including the LIST day of September, 1888
these defendants were lawfully possessed 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 1st day Of
September have been entitled, under said con-
tract and agreement. to continue the working
of said part Of said calm.
Defendants justify their acts under this con-
tract, tut do not plead it except to the extent
aud in the manner above quoted.
At the trial the defendants were permitted,
against the objection of pl aintifYs, to prove
that plaintiffs and defendants entered into a
veroal contract, by the terms of which de-
PENDANTS were permitted TO enter upon, occupy
and mine portion Of the Paragon mining
claim. the property of PLAINTIFF, in considsra.
ton Of the payment 10 the plaintiffs by the
defendants of one fourth OF the gross yield of
gold to be derived from such mining. The
objection to the evidence under which this
verbal contract WAS establis he'd was based
upon 1.-THE ground that no contract WAS
pleaded in the answer, and no issuo on any
contract"
The Court decides that the verbal contract
OF February Il, 1888, AS found by the Court and
jury under which defendants were TO enter and
work certain portion OF The mine If they saw
fit, and to exercise their. own discretion
whether they worked II or not, did not create
the relation Of Landlord aud tenant between
them and the plaintiffs. Tho contract gave to
them no greater right and had no more force
in law than verbal contract for the sale of
the land would hive POSSESSES cd. Their right
under such contract was not in and to The
realty, bat to the COLO as personally where it
should be severed from the land. Had II been
ia writing il would have given TO defendants
merely an ineorPoreal hervditameni and being
verbal, il operated a. n license 10 them to dig
aud mine Tor gold within the specified limits,
when license protected them from charge
OF lrespass while In force, but was liable IL
revocation at the will Of the liccnsers.
There is a broad distinction bctwe.n lease
of mine, under which the lessee enters into
possession aud takes an estate in the proper
", and license TO work the same mine.
In the latter case The licenscc has 10 per-
manent interest, property or estate in the
land itself, but only in the proceeds, and in
such proceeds not Ne realty, but as personal
property; and his possession, like that Of an
individual under contract with the owner of
land to cut timber or harvest a CROP of pOta
toes thereon for share of the proceeds, is the
Possession Of the owner.
The agreement wns revocable at the will of
the plaintiffs, and having been by thcin re-
yoked before suit was brought, plaintiffs were
entitled TO a recovery. For the reasons given
in the foregoing opinion the judgment and
order are reversed and cause remanded for q
new trial, with leave to defendants 10 amend
their answer If so advised.