The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1901-12-09

hath in It's legal signincauce an indefinite
cAteut upward as We'll as downward Mln-
tlSlS are part ot the land iseif aud II not
susceptible Of division, the wife is entlurl
To he endowed with the icnls ana pronts
According to all the case aud text books
q litc estate In land Invariably cNInds to
all minerals beneath the snttace but the
right being merely to use aud enjoy and
MOI 10 dispose of thu laud. the difhculty
arises IN determining what Is proper use
! aud enjoyment. ana when a lite teuant may
dhu MhVu hp mag not sever aud diSp Sc
OF minerals without heing guilty ~ waste,
" Is obvious that life tenant, II allowed
10 minr might gct a much larger proper
! ton Of the beneut OF The estate tnan hc
would ordinarily receive. GA the Viher
Maud " net allowed 20 mine, ne might
get much less. The courts have undertaken
to draw the line and 1t may Ice stated as
/ kchernl RULE at common law. tia while
/ ne tehaht may continue to work mines
That We're open when the tenancy com
/ uWhCeC. AMI this even To- cNhhusito ion. aud
/ lONy construct new approaches, he can
I mol open new mines for e. ITO So would ~
/ 10 commit waste. The rule allowing ne
1 tenants 10 mine, when the operations are
! commenced before the tenancy is created,
| II basyd on the theory hat In such cases
/ mining IL mere mode of use aud enjoy
mtnt, and to extract minerals Is but 10
! phe the accruing prn1s Of the land, Rcy
I vs. Bartlett, ~ l.. r. a. $50; Seugcr ".
lo0 Pa St, 8S0' "
1 The matter resolves Itself. then. into a
]
/ stances mining may be adopted as u
! node Of using the land. The authorities
! Az agree hat there Is no restriction when
/ tue lnnd has once been used for mining
I purposes before the life tenant comes in,
I anu they now go a step further and hold
Ihal mining will be allowed il the owner
/ OF tue preceding estate has fixed on II
/ me character of mining land by lease or
! we IKE. though ne mines We're opened.
I iflddy VS. Griffith. 81 y, f.. Rep H3;
/ Neon vs. Bartlett, supra. Scagar vs.. Nj
! Nabc. supra.
/ In the case at bar the remaindcuucn being
/ RiNo tie oNHel'' Of SHvrntecn-cgntccurh
/ absolutely. have taken possession OF inc
entire property to the exclusion Of the
/ me ttl1ut, and have converted it in,o
/ an oil hei The lattet has eommttecd
| NJ" waste end the point to be dcriicd Is
/ not whether she might d"ill Tor oil her
/ sell, nut whether she may elect to ac-
%Hesce In the changing of the mode Of use.
Was male aud no PARTITION was demanded
! ens' qnently any advantage that enSues
must innre 10 the benefit Of all the co
Lcniers VS.. IIenbc. az iii. iO5 is IN
appltcuhle authority, in prinCiple AZ least
rue case involves two questions: Wheth
/ eI widow is entitled to dover ~ miacs not
/ open when her right of dover attached
Z but opened by Ghe reversioner before as
Slghment and. :. whether certain YER
bal agi cement was valid rs assignment
Of dover Both were decided IN the ar
nrmailre. After announcing that tho
FIST question presented was one of first
'AN yNulA IAuNtfNS Win II re-
Wow of the authorities. Speaking of the
rule nat life tenant or doweress may
m35t open new, mines the court observes:
III many Of the later cases. as well as The
earlier cases, no reason whatever Is as
signed for the adoption Of the rule but
Wuerr any Is assigned. ii is. the doweress
can mot open new mines when discovered.
because she would be committing waste,
Mh,ch she is not permitted to do on prn.
r.Iie' why may she not be endowed of
mines opened by tho heir or owner of thp
I've. AFTER the dover attaches naF
mere mas been any assigumruty BY all
tue decisions, II is not waste for her 10
b S"'A mines opened. although the same
!IS ueoh ABANDONED before the death OF
lnr husband she may construct new ap.
. puachcs ana not be guilty Of waste The
reason for the rule adopted that bars dover
III an mines not opened during the life
lme of the husband. failing, the rule ought
u4t 70 De eN,rnded to cases not strictly
h mifn'I IL, us mrtauing And finally, The
an other prohts OF the land. There Is
NO mode of ENJOYING mines except Nv
working them. Ii this can not be done.
we uaNe seen, II is not waste In her 10
work mines opened by her husband. and.
conclusion it is not waste Tor her TO work
menl OF dover"
i'riddy vs. Griffith, ~ s. II. Rem oap
was decided by the same court and Ian,
guage TO the same effccl used There is
Snght difference hetreen the facts of
T., ",,EEtH -. iehke ana the case MT bar.
IN that case the Widows interest was
c9hSnmmate dover, while here IL is n vest.
ca ne estate In an undivided Interest
fn,, u Is n9t perceived how this could ar.
igrt me principle Involved The reason
IHE oi thAt case Is applicable here and
stems 4hahNMerable. and II is certainly
~ ht'plhs with the tendency Of modern
occasions sim, Ii recognizes the rulp tbof
a 1Ts tenant may not open new mines
ana II Is not IN conflict with any Of tho
LI cl. c'Loo c hy counsel for dofendants VI,
J. Cowen 46o. II seems to have been tbiTs
He59 ny one of the courts of New YORK in
nine Mn, 'a nr lnf widow was not dowable Of
ZINES opt heu by the 1eir after husband /
death. Inc land there had been davo+ ed
70 mining purposes, however. bv the brs
tba. ms ms lifetime. and the decision fnr
vs.. Taylor 20 a NJ Dec 53R. a. i plislI ,is
Green Pond, 80 ~ j. Ed. 60s: PrId5T W.
'Ji Tbnro' supra; keon vs.. Bartlett. supra
clpia tbo rs amolhcr ,woll established prin
VS.; Henke, and 1t is this: AS against th[
helr and MS yendees, the widow is entftIof
40 aUIMgr I'D her deceased husbands LAND
accordlng to value and condition Mt Inc
lIme dover is assigned full Iiscussjor
OF rms occurs In Allen VS. Mccoy ( Han,
a9S sl5ioe so'le!, ., 4iS; See also Wnshhurn
EnEHsA EncEclonedla Law to1l. 92A The
same go rue applles IN parti ion between
MINI r"1fna .il ,, except that nctual Improve
but enhancements from Independent causes
such as growth In the population az
Town or discovery of mineral deposits. may
Thus far the question has been treotet
without distinction between conventiona
life estates and common law dover on
the one hand. Gad life estates inherlter
by the law Of heirshlp and succession OF Of
IN seagar vs.. McCabc. supra. the sn
preme court Of Michigan, constituting I
dover statute of that state, reviewed IN,
difcsions at considerable length made fh'
conclusion; The rules applicable 10
country where landed estates are lgrr,
and diversified, whore the laws of Inherit
ancc are exclusive, where the theory o
dover Is subsistence merely and whcr.
there is a strong disposition to IRE,
estates from even that charge. do no
obtain In . commonwealth Ike ours wher
estates arc small AID the policy OF gu
laws Is to distribute them with ench ren
Grafton, whore dover Is one OF The ppsi
tive iusti utlons Of the State. founded II
policy, and the provision Of tho widow
IS a part Of the law Of distribution I'm,
he aim Of the statute Is not subsistence
alone, but provision commensurate wifi
tue estate, In the present case the gran
Is by operation Of statute giving III,
use Of an the lands Of which the nus