| Ala. | Jan 15, 1852
It becomes necessary, in this case, to ascertain with some precision, the first place, what interest or estate passed to Moore by the agreement entered into between him and defendant, John E. Atkinson, by which the former was to have “ the right to dig and carry away ore from the bank” in consideration of “one thousand pounds of iron to be paid to the latter from time to time as he wanted it.”
Mines are a part of the freehold, and prima facie the owner of the freehold has a right to the mines and minerals underneath; but this is only a presumption of law, that may be rebutted, by showing a distinct title to the surface in one, and to that which is underneath in another, for mines may form a distinct possession and different inheritances from the surface. 1 Crabb R. P. 93.
Again: There may be a right to dig ore in the mines of another, as distinct from the ownership of the mines, as that may be from the ownership of the surface. This right to dig ore in the mines of another, if it be to one and his heirs, is an incorporeal hereditament. Grubb v. Guilford, 6 Watts. It is a permanent interest in the land of another, to which a legal title can only pass by deed, and of which no sale can be made, which is binding, unless reduced to writing, agreeably
Had the contract between Moore and defendant Atkinson been reduced to writing, and by deed, it would have created in Moore, I apprehend, by force of our statute, a fee simple in this easement; tips “right to dig ore.” An estate to him, where no less estate was expressly limited, would have been an estate to him and his heirs. See statute Clay’s Dig. 156. But to give to it such an effect, it was indispensable that it should have been in writing. A verbal contract for an easement like this would have no more binding force in law, under the statute of frauds, than if it had been simply for the land itself.
But if it be devoid of efficacy as a contract of sale, because not reduced to writing, is it therefore void for all purposes ? Not altogether. It may still serve the purpose of a license. And what is the extent to which it can go as such ? A license merely- — a verbal license — -is the right to do a particular act, or a series of acts, without any interest in the land. Such a license will exempt a party from an action of trespass for entering the land of another to dig ore, and will give him the property in the ore which is actually dug under it. Doe v. Wood, 2 B. & Ald.; 1 Crabb R. P. 96. But such a license is revocable at any time, at the pleasure of him who gives it. We do not mean that all verbal licenses are revocable at pleasure; there are distinctions to be observed; but only such a license as that we are now considering. 1 Mass. 533; 4 Johns. 81" court="N.Y. Sup. Ct." date_filed="1809-02-15" href="https://app.midpage.ai/document/thompson-v-gregory-5472363?utm_source=webapp" opinion_id="5472363">4 John. 81; 1 Crabb, 425.
Such a license moreover is not assignable; the privilege it confers is personal to him to whom it is given. The conveyance of the land to another would be a revocation of such a license. Wallis v. Hamson, 4 M. & W.
Having ascertained the principles by which we can determine between the conflicting claims of the plaintiff to enter the enclosure, and of the defendants to repel him from effecting such entrance, we will now proceed to consider that question.
The license given to Moore, and the digging and carrying away ore for years under it, would not have given to him even, much less to the plaintiff, the possession of the ore
No license to enter on that possession existed in the plaintiff at the time of the affair. The license that had been given was personal to Moore, and could not be transferred to the plaintiff. But such a license was revocable at pleasure, and if the right to enter had been claimed by Moore himself, instead of plaintiff, it was sufficiently revoked by the notice to the wagoner the day before, and at all events by the warning to the plaintiff not to enter at the time of the difficulty. He persisted, however, supposing, no doubt, that he was only maintaining his lawful right. In this he was mistaken. It behooves a man to proceed with great precaution, when he determines to vindicate a supposed possession against another who is in or on the premises. As must appear from the principles already stated, the possession, and the right in law to defend and maintain that possession against all the world, was with the defendants. It follows that plaintiff, in making the attempt he did to enter the enclosure, was himself a trespasser, and that defendants were justified in repelling his attempt.
These views sufficiently indicate that we find no error either in the charges given by the court, or in the refusal to charge as plaintiff requested.
The next assignment of error relates to the admissibility of the evidence showing that plaintiff, after alluding to certain threats of the defendants, had spoken in a very contemptuous manner of the defendant, John F. Atkinson, and had made threats of what he would or could do with him in certain contingencies, before the beating took place, although the. witness stated that he had not told the defendant of this until sometime afterwards.
We see no good objection to the evidence admitted, at least to a portion of it, and the objection was general.
It was competent to show that angry feelings had arisen between these parties, in regard to their respective rights to the possession of the ore bank, previous to the beating, in order to show that plaintiff would naturally expect and come prepared to meet a vigorous resistance, if he was determined to proceed to assert his right to the possession by force, and this might serve to palliate or excuse the conduct of the defendants.
There is no error in the record, and the judgment below is affirmed.