16 N.Y.S. 592 | N.Y. Sup. Ct. | 1891
Chapter 411, Laws 1890, amending 1 Rev. St. p. 281, §§ 2, 7, provides that all mines, minerals, and fossils discovered, or hereafter to be discovered, upon any lands belonging to the people of the state, are the property of the people. “Any citizen of this state who shall have discovered or who may hereafter discover any valuable mine or mineral upon said lands, and shall file the notice in this title required, shall be entitled to work such mine, and he and his heirs and assigns shall have the sole benefit of all products therefrom, upon payment into the state treasury of a royalty of two per centum of the market value of all such products.” “See. 2. Nothing contained in this title shall * * * be construed to give any person a right to enter on or break up the lands of any other person or of the people of the state, or to work any mine in such lands, unless the consent in writing of the owner thereof, or of the commissioners of the land-office where the lands belong to the people of this state, shall be previously obtained.” Wood and Shields became entitled “to work such mine,” and “have the sole benefit of all products therefrom.” They had the right “to enter on” and “break up the lands.” Their rights were exclusive. The state retained the title to the soil, but granted to Wood and Shields the full beneficial interest in the minerals, and the exclusive right of possession of the lands for the purpose of working the mine. The state granted nothing to the defendant, and the defendant has no right except what he holds under Wood and Shields. Defendant seeks in this trial to cut down the grant to Wood and Shields, in order to appropriate to himself as a means of defense whatever of title remains to the state. He owns nothing under that reserved title, and is not in a position to invoke the
Defendant could not, upon the evidence, claim any title to the mine. The contract in writing between him and Wood and Shields was not a conveyance, and did not purport to be. It was an executory contract for the sale by them to him of “all or fifty tons of garnet out of the land shown me, * * * with privilege to mine each and every year until all gone. ” Assuming the validity of this agreement,—and, if free from fraud, it was valid,—Wood and Shields had their election either to observe it or violate it and answer in damages. Clark v. Marsiglia, 1 Denio, 317; Lord v. Thomas, 64 N. Y. 107; Parr v. Village of Greenbush, 112 N. Y. 246, 19 N. E. Rep. 684. The testimony tends to show that they did refuse to perform, or to allow the defendant to perform, and the defendant, with full knowledge of the fact, took possession of the mine. If such was the case,—and, if there was any question about it, it was for the jury to determine it,—the defendant entered at his peril, and could establish no equities by his subsequent expenditures. The parties fell into a dispute respecting the future performance of an executory contract relative to the working of the mine, and Wood and Shields refused performance. The defendant’s remedy was not to enforce performance by the strong hand, but to seek redress in damages. The defendant rendered services and expended money in securing for Wood and Shields the consent of the state. There is a question whether he was to have his pay in garnet from the mine or otherwise, or whether his services and expenditures were in aid of the contract which he had made with Wood and Shields, and were bestowed upon their promise to recognize the contract in ease the state allowed their claim. The defendant took different positions respecting his services and expenditures. His remedy, if they were rendered at the request of Wood and Shields, is an action to recover for them. If there are equitable considerations, such as the insolvency of Wood and Shields, the expenditure of money and services at their request in securing for them the title to the mine upon their promise of their performance of the contract, and the inability to measure the value of the contract in advance of the actual working of the mine, and these require a specific performance of the contract, then it may well be that the defendant was justified in taking possession of the mine, if done peaceably, since the law will justify what it will award. But the answer was not framed in that aspect, nor the evidence addressed to it. Defendant urges that the deed to plaintiff was void for champerty. But defendant was not in possession of the mine, claiming under a title adverse to Wood and Shields, for he had no title whatever, good or bad. He went into possession on his own showing under Wood and Shields, and under their title, and therefore not under an adverse title. Dawley v. Brown, 79 N. Y. 390. He was at best but their licensee, and they revoked the license by their sale to the plaintiff. Still the plaintiff knew all the facts, and, if there were any equi