The Princeton union. [volume] (Princeton, Minn.) 1876-1976, 1905-09-28

the Legislature is not as one acting
under a power Of attorney phrased in
the language of the constitution. It
needs no constitutional grant of
power. It is only restrained by a
constitutional limitation.
There are some matters referred to
in the argument which may be dis
posed of at the outset.
The State claims that ore in place
is part of the land. This is so. It
is just as much a part of the land as
is standing timber, or coal, oil, slate
or any other mineral.
The State claims that there may be
separate ownership of the surface
and the minerals. This is so. There
may be as many separate ownerships
as there are separate parts of the land
capable of description.
The State claims that the so-called
mineral contract creates an interest
in the land. This is so. The interest
so created has many of the incidents
Of real property. A contract relative
thereto is within the statute of frauds.
1t is to be transferred by deed. It
is subject to the lien of a judgment
and may be sold on execution.
The State, however, does not claim
anything in particular from the mere
fact that an interest in land is
granted. It comedies that the legisla-
ture might constitutional]y authorize
an ordinary lease of it's agricultural
lands for any reasonable period, at
least so long as it did not offend an
other provision of the constitution.
II some portion of it's lands should be
available for town-site purposes, it
probably would not claim that the
legislature might not lease such lands
upon ground-lease. Its claim is SIM
ply that mineral lease, contemplating
waste and exhaustion of the body OF
the land, is not such a lease as the
State may make; and that it is in
effect sale of distinct part of the
land, that is, of the ore body, which
can be made at public sale only.
The attorney general and his asso-
ciates make the issue clear. Their
contention involves these proposit-
ions:
l. That the statutory mineral con-
tract is present sale of ore in
place, or sale in the future as the
ore is removed, title to it passing for
consideration paid.
2. That since the mineral contract
contemplates the consumption of "a
portion of the demised property, and
the possible exhaustion of substan-
TALLY all of value in it, it is not a
lease; the return of the demised prop
erty unconsumed and undiminished,
and without waste, being, so it is
claimed, necessarily essential fea-
ture of lease.
About these two propositions the
argument has been made; ard assum-
ing that the determinations Of these
two propositions determines the
constitutional question involved, their
consideration should first have atten-
ton, and this involves an examina-
ton of the law relative to the leasing
of mines.
Coke summarizes the early English
law as follows:
"a man hath land on which there is
mine of Goals, or Of the like, and
maketh lease of the land without
mentioning any mines) for life or for
years, the lessee for such mines as
were open at the time of the lease
made, may dig and take the profits
thereof. But he cannot dig for any
new mine that was not open at the
time of the lease made, for tn at should
be adjudged waste. And if there be
open mines and the owner make a
lease of the land, with the mines
therein, this shall extend to the open
mines only, and not to any hidden
mine; but if there be no open mine,
and the lease is made of the land to-
gether with all mines therein, then
the lessee may dig for mines, and en-
Joy the benefit thereof, otherwise those
words should be void.'' Co. Lift. 53b
It may be accepted as the settled
English law that the tenant for life or
for years, whether by grant, devise or
reservation, might work the open
mines upon the premises held by him
although such working resulted in
their exhaustion; that such tenant
might not open new mines without a
grant of such right; but that he might
open new pits and shafts to work con-
veniently the old mines. SAUNDERS
case, 5 Co. II; Huntley v. Russell, Is
Q. B. 572: Astry v. Ballard, Freem.
AS; Clavering v. Clavering, 2 P.
WINS. 1888; Cowley v. WELLESLEY, IS