The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1919-04-10

tracts, or their many forms. whicl
give rise to situations that may b.
aptly termed peculiar, because they II
turn have their origin in situation
which are unusual Many minini
rights are conferred by contract be
tween the operator and the owner o
the land in which is located the min
about an ordinary mining contrac
that will distinguish 1t from one en-
tered into in other business relations
1t has been held many times by the
courts that the same rules Of law ap.
ply to mining contracts as to ordinary
contracts; so where there are misrep.
reservations, deceit or fraud in the
sale of mining property, or when the
rights are acquired by means of a
contract, the same rules of law apply
as if the contract had other sIbje:,
matter.
One authority has said: There is
when about to purchase mine, makes
an investigation himself, and consults
others as to the condition of the mine
or it's value, does not rely upon rep
reservations made by the seller. Nor
is it necessary that a mine be shown
to be worthless to entitle one defraud-
ed into purchasing it to hold the SELL
er liable for the loss inflicted upon
him."
1t is fundamental proposition of
the law of contracts that the law Of
the jurisdiction applies in constituting
contracts; and the same rule ordin-
arily applicable to contracts will ap-
ply unless the statute has provided
differently in the case of mining con-
tracts. In regard to concealment and
Misrepresentation of the value Of
mining property, it is generally held
that the seller will be liable. Surface
indications, on the other hand, which
are open to all observers and which
must have been known to the vendee,
can not be the subject of concealment
o. Misrepresentation. This is based
upon the theory that what is open and
readily discernible to all Is presumed
to be seen and known by all, particu
larly by purchaser: and it is there
fore impossible for the seller to be
guilty of concealment of something
which can not be concealed
A substantial breach OF the contract
will naturally permit the other party
to escape performing his share Of it,
but an unsubstantial breach of con-
tract will not justify the entire aban-
donment Of it. In the case Of options,
some peculiar rights arise which are
often misunderstood by the parties. In
the first place, an option to mining
property creates no right or interest
IN the property until it, the option,
has been exercised. 1t comes into be-
ing, or it's distinguishing features
come into being, only after it has been
exercised.
An option is, of course, form Of
contract, but it possesses Only poten-
tial rights in one sense 1t may be Of
great value, but it has 10 value what
ever until it is used The mere TAX
ing of an option creates no estate in
the property itself until it has been
exercised, so failure to exercise 1t in
the manner agreed affects the holder
in precisely the same way as If there
hd never been an option.
Time may be, and very frequently
is, of the essence of the contract for
sale, and it may arise either by ex-
press agreement of the parties. their
relation, or from the nature Of the
property. When an option Is made to
particular person, an assignment OF II
to another not considered as a party
in interest at the time the agreement
was entered into will confer no rights
upon such assignee This Is particu-
larly true in instances where the OPP
ton is given to John Jones and none
other" or only to John JONES'" but
it has also been held to apply to cases
where the particular person is speci-
fcally designated, so as to have the
inference that it was to be exercised
only by him.
These rights often arise under the
form of lease. The subject Of who
Their a lease was merely lease Of
lands or a sale of the property has
already been discussed in these col
umns. There are two views Of the
matter, the one holding that it is
merely lease Of lands, whereas the
other maintains that a lease Of min
ing property is sale of the land. The
solution Of the question Is to be de-
termined in each case by two things:
"a the facts surrounding each case
and (2) the law of the jurisdiction.
Assuming that lease Of mining
property is merely lease. the owner
Of the surface is held to be the owner
of the whole land. The lessee has the
right to use the land only for a spe.
cic purpose-getting out the mineral.
Under the other rule 1t Is held that a
lease creates title in the mineral, the
time specified being merely an indica-
ton Of the time in which the lessee
must get his property out of the land.
There ia more or less doubt aver