It is the policy Of the government to favor the development of mines of gold, silver, and other metals, and every faCility is afforded for that purpose ; but it exacts a faithful compliance with the conditions required ; U. S. v. Mining Co., 128 U. S. 673, 9 Sup. Ct. 195, 32 L. Ed. 571. A mineral lode or vein whose location is perfected under the law is the property of the locators or their assigns, and not subject to disposal by the govern ment ; Noyes v. Mantle,. 127 U. S. 348, 8 Sup. Ct. 1132, 32 L. Ed. 168.
Subject to the rights of the public, grow ing out of its original ownership, • or as pro vided by law in special cases, the right to minerals belongs to the owner of the soil, and passes by a grant thereof, unless sepa rated; Lacustrine Fertilizer Co. v. Fertilizer Co., 82 N. Y. 476 ; but the owner may con vey his mines by a separate and distinct grant, sp as to create one freehold in the soil and another in the mines; Adam v. Iron Co., 7 Cush. (Mass.) 361; 5 M. & W. 50; Wil liams v. Gibson, 84 Ala. 228, 4 South. 350, 5 Am. St. Rep. 368 ; Manning v. Frazier, 96 Ill. 279; and atter such severance of the mines from the soil each is entirely inde pendent of the other, separately inheritable, and capable of conveyance; Barr. & Ad. Mines 3.
In case of a separate ownership, the owner of the mine must support the superincum bent soil ; 12 Q. B. 739 ; 12 Exch. 259 ; and ancient buildings or other erections ; 2 H. & N. 828. But in California a miner will not be enjoined against disturbance of crops, un less the appropriation of the land was an terior to the mining location ; Ensminger v. McIntire, 23 Cal. 593.
A lessee having the right to mine coal un der land over which a railroad is operated, can only mine so much of the coal as can be removed without injury to the surface ; Mickle v. Douglas, 75 Ia. 78, 39 N. W. 198. The lessor's measure of damages where there are sinks and depressions in the sur face of the land due to lessee's negligence in operating a mine, is the depreciation in the value of the land ; McGowan v. Bailey, 155 Pa. 256, 25 Atl. 648.
The estate in the minerals as distinguish ed from the soil, is created under what are known as mining leases. Where the min erals are undisturbed as a part of the soil they are said to be ina, place. The severance of the estate in the soil and in the minerals may be by conveyance, by whatever name designated, of all, or a clearly defined part, of the minerals, in which case there passes to the grantee an estate in fee in the min erals, with the privilege of using the land so far as may be necessary for the purpose stated; Adams v. Copper Co., 7 Fed. 634. This is the effect of a conveyance even if it be called a lease or limits a term of years with in which the minerals are to be taken out ; Barr. & Ad. Mines 36. The effect of this is
said to be the somewhat paradoxical result of the limitation of a fee-simple estate for a term of years, and the resulting difficulty is sought to be avoided by treating the, lim itation of the term as not upon the estate but upon the appurtenant rights, without which it would be valueless, and in case of failure to take out the mineral within the specified time it is forfeited to the grantor ; Lillibridge v. Coal Co., 143 Pa. 293, 22 Atl. 1035, 13 L. R. A. 627, 24 Am. St. Rep. 544; Suffern v. Butler, 21 N. J. Eq. 410. A lease for mining purposes, the rent to be a certain part of the ore mined, is forfeited by fail ure to work the mines for a number of years; Maxwell v. Todd, 112 N. C..677, 16 S. E. 926. Such instruments, even where the term li cense is employed, are held to be not a mere license, but to pass a property or to create an estate in the minerals ; Hartford Iron Min. Co. v. Min. Co., 93 Mich. 90, 53 N. W. 4, 32 Am. St. Rep. 488 ; Knight v. Iron Co., 47 Ind. 105, 17 Am. Rep. 692 ; Consolidated Coal Co. v. Peers, 150 Ill. 344, 37 N. E. 937 ; Lee v. Bumgardner, 86 Va. 315, 10 S. E. 3. See Barr. & Ad. Mines 36, where the cases are collected and examined. A true lease hold interest in the land may be created with an appurtenant right to take minerals, in which case the lessee is a tenant for years, and his possession and property of the soil and the minerals are the same ; Patton v. Axley, 50 N. C. 440 ; Brown v. Beecher, 120 Pa. 590, 15 Atl. 608 ; Baker v. Hart, 52 Hun 363, 5 N. Y. Supp. 345. Where the permis sion is to take all the coal and the term is indefinite, the lease expires when the latter is exhausted ; Gartside v. Outley, 58 Ill. 210, 11 Am. Rep. 59. In New York this doctrine is limited, so as to apply only where "the whole body of the coal, considered as of cubi cal dimensions and capable of descriptive sep aration from the earth above and around it, and as it lies in its place, is absolutely and presently conveyed. The thing sold must be such that it can be identified as land sever ed, as land, from the estate of which it forms a part ;" Genet v. Canal Co., 136 N. Y. 593, 32 N. E. 1078, 19 L. R. A. 127, where Finch, J., citing the Pennsylvania cases, says: "Ev ery case upholding the doctrine, which I have been able to examine, has that marked characteristic." In this case which revers ed 122 N. Y. 505, 25 N. E. 922, the "lease" of all the coal contained under a described contract designated it as including all the coal that could be economically mined or taken out.