85 F. 907 | U.S. Circuit Court for the District of South Carolina | 1898
This case now comes up as to the disposition of the proceeds of sale of certain tons of phosphate rock on the land of George T. Lewis, mined under a mining agreement between O. O. Pinckney, Jr.,'and Air. Lewis, and heretofore ordered to be sold by the receiver. George T. Lewis is the owner in fee simple of a tract of land in St. Andrews parish, in Charleston county, between Ashley and Stono rivers, containing about 3,775 acres of land. On the 8th day of January, 1897, an indenture was entered into between George
The first question made in the case is, is this identure a lease, or merely a license to dig and mine, — á demise of a corporeal thing, or the creation of an incorporeal hereditament. The instrument itself is called by the parties a “mining lease.” The words of conveyance are, “hath granted and leased, and by these presents do grant, lease, and to farm let.” The thing conveyed is “the exclusive right to enter upon all the lands of the said George T. Lewis, situate,” etc., with full description by metes and bounds, “and dig and mine upon the same for phosphate rock and other minerals, to any extent he may require, and carry away and sell the same for his own use.” The consideration is a certain royalty, estimated and payable as stated in the deed. On the same day a tripartite agreement was made between George T. Lewis,' C. O. Pinckney, Jr., and Charles Inglesby, adding other terms, but not affecting this question. It is earnestly contended that this instrument is not a lease, but that it is a license to mine on the lands, and to appropriate the minerals mined, with the right to enter and pass over the lands, — an incorporeal hereditament. Counsel rely upon Doe v. Wood, 2 Barn. & Ald. 724. In that case there was a grant to A. and his partners, fellow adventurers, executors, administrators, and assigns, of free liberty, license, power, and authority to dig, work, mine, and search for tin, tin ore, etc., and all other metals and minerals whatsoever, and the same “there found” to dispose of to their own use, for the term of 21 years. Chief Justice Abbott held that this deed operated as a license merely. He says:
“The purport of the granting part of this indenture is to grant, for the term therein mentioned, a ‘liberty, license, power, and authority to dig,’ etc., throughout the lands therein described, and dispose of the ore, to the grantee, his partners, etc. That is no more than a mere right to a personal chattel, when obtained in pursuance of incorporeal privileges granted for the purpose of obtaining it.”
This interesting question is discussed in Massot v. Moses, 3 S. C. 181. As it involves the decision of the common law of that state, especially bearing upon the title to real estate, it is binding authority on this court. Beauregard v. New Orleans, 18 How. 497. In Massot v. Moses, the deed used this language: It grants, sells, and conveys to the party of the second part “the right and privilege of entering in and upon, by himself or his agents, all or any part of the land hereinafter described, for the purpose of searching for mineral and fossil substances, conducting mining operations to any extent the said party of the second part may deem advisable, and for working, mining, selling, and, as the property of the party of the second part, to use and appropriate for the term of ten years all organic or inorganic minerals, rocks, fossils, marl, or so-called phosphates, that may be found on, by any person or persons, or contained in, any part of all that plantation ■or tract of land,” etc. It was contended that this instrument, admitted to be a deed of grant, was in effect a license, merely, and granted, sold, and conveyed, not a tangible estate, either real or a chattel,
“It is further agreed that the said lessee, his executors, administrators, and assigns, is not to use the rights herein granted so as to exclude the lessor, liis heirs and assigns, from entry on Hie said lands by means of any roads constructed by the said lessee, his heirs, etc., or from prosecuting any other business, other than mining or taking therefrom phosphates: provided, always, that such business should not interfere with the lessee’s mining operations.”
During his operations, on 27th August, 1897, Mr. Pinckney entered into a contract with R. B. Cuthbert, under which Mr. Cuthbert claims to be the owner of the rock mined out of and remaining on the leased premises when the receiver was appointed. As the statute evidently contemplates only such goods as can be seized in execution (that is to say, goods the property of the lessee), if Cuthbert’s contention be correct the landlord cannot claim a lien on this rock. Compare 14 St. at Large, p. 511. The contract is in these words:
“Mr. Cuthbert -will undertake the mining (by hand) for his own account. He will agree to mine an average of 400 tons per week, and deliver it in the cars at $1.50 per ton, payable weekly, at the estimated figure of $2.00 per pit. Mr. 'Cuthbert is to dig 250 pits- in advance, which will not be paid for until final settlement. In consideration of this agreement, he will continue to act as superintendent of the works, and look after their interest in all points.” (Signed by both parties.)
The paper is written in lead pencil, except the signature of Mr. Cuthbert, which is< in ink. Does this contract convey to Mr. Cuthbert the right and interest which Mr. Pinckney held under the deed of Lewis?
It is ordered that the special master ascertain what rent or royalty was due under the lease of George T. Lewis to O. G. Pinckney, Jr., and under the tripartite agreement part and parcel thereof, at the date of the appointment of the receiver in this case. And when said amount is ascertained, if it be less than the annual sum which under said lease and said tripartite agreement the said C. O. Pinckney, Jr., is liable to pay each year as rent for said lands, it is further ordered that, when this amount is so ascertained, the receiver apply the proceeds of the sale of the rock, heretofore ordered, towards the payment of the same, if it do not exceed the amount of four years’ rent.