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


JkSDA x, SEPTEMBER .,
continuance Of this lease, just the
same as though the lands herein
leased were owned in fee" by him; an
annual payment of $4,000 is reserved
until such time as it becomes the
lessee's duty to remove iron ore; and
from the time when the lessee is to re-
move 5000 tons annually there is re-
served royalty upon minimum out
put of 5000 tons.
In most respects this Instruments
the same as that construed in Dia-
mond Iron Mining Co. v. Buckeye
Iron Mining Co. 70 MINI. 500. The
instrument there involved was spoken
OF as lease, of which merchants
BILE, shipping iron ore" was the sub
]ect-matter, the possession of the land
being Incidental and auxiliary to min
ing: and removing merchantable ship
ping iron ore: and it may be noticed
that in the early English and Ameri-
can cases the land itself was often the
principal thing, the mine being Incl
dental; but with the development of
mining it has come to be that the
mine itself is the principal thing. It
is the thing with which the lease has
principally to do. It is the part of
the land with which the contracting
parties are chiefly concerned It is
chiefly the thing for the use of which
rent or royalty is paid; and the use OF
the surface of the land becomes aux
Hilary to the use of the mineral deposit.
The lease involved in the Diamond
case made payments as royalty on the
minimum output equivalent to an ad-
vance payment of royalty in the event
that the minimum was not taken out.
Ihls is not an uncommon provision.
There is no such provision in this
lease; and the State has always con-
strued the lease to deny the lessee the
right to apply payments made on &C.
count of unmined ore upon ore after
wards mined in excess of the mini
mum. The reason why the lessee must
pay the ST, 250.00 per year, regardless
OF whether he takes 5000 tons of ore,
and may not treat it as advance roy
atty, is, SO the argument is made, that
this is the sum which he by contract
pays for the right to mine, and not
what he pays for ore in place. 1t is
in the nature of rent. He has during
the year just what he pays for. the
right to mine-the use of the mine:
and the defendants contend that the
fact that there is first an annual dead
rental of $4,000. and later of
81, 250.O0, evidences lease and mega
tives sale. Swan V. Bond, (Kan. J.,
81 Pac. R. l4l: Flynn v. Whitehurst
Coal Co. y Ia. 739.
That an instrument such as the one
here involved is lease finds support
in adjudged cases so numerous that
it would be tedious even to cite them.
1t is more than license, and it is not
9 sale of ore in place or as removed.
! 1t is just lease: and for hundreds
of years the term "lease,'' in legal
nomenclature, has been used to define
just such relation as is created by
the statutory mineral contract. In
fact, outside of Pennsylvania, and
perhaps not even there, practically no
! case rs to be found suggesting that
such an instrument is either more or
less than a lease.
Ii the States attack upon the min
eral lease law must fail if it does not
sustain the two propositions which it
advances, first, that the mineral con-
tract is sale of the ore in place, or
as removed, and not a lease, title
passing upon consideration paid, and,
second, that it is an essential feature
of lease that the demised premises
be returned at the end of the term with
the corpus uncOnsumed and undimin-
isbed, then it's attack has failed; for
neither Of these propositions, whether
viewed from an historical or logical
standpoint, Or from the point of view
of the present dead weight of author
ity, is sound. If the determination of
these propositions determines the con-
stitutionality of the lease law it is
constitutional.
1t may be, however, that all this
talk about sale of ore in place, or
as removed, and about the consump-
ton and exhaustion OF the land
through mining operations, is of less
Importance than has been attached to
it; and that finally we come back to a
proposition which suggests itself upon
the first reading Of the constitution,
that is, whether mining lease for
fifty years is a grant of so substantial