| Utah | Mar 31, 1900
after stating the case as above, delivered the opinion of the court.
The respondent insists that the contract was merely an option to purchase, with a license to extract mineral from the land.
An examination of the instrument shows that it was personal to Me Guire and associates. It did not in terms run to heirs or assigns. The prospective grantees mentioned therein, under its terms could neither sell nor assign the interest to be conveyed to them, without the grantor’s consent, until they had performed all the conditions, and become entitled to the deed. One of these conditions was that, before conveyance of the land to them, they were to pay the owner, or grantor, $6,000 out of the ore to be mined, in addition to the $200 cash paid at the time of making the contract. It is true Me Guire and associates were entitled to and received ¡possession of the premises under the agreement for the purpose of mining ore, but the legal title to the land or interest was not conveyed to them by that instrument. The owner simply bound himself to convey in the event of the performance of the conditions, but, as the conditions were never performed by the parties to the contract, he was never divested of the legal title. None of the defendants, except Ma-berry were parties to the agreement, and Mabcrry, although served with summons, defaulted, and, it appears, claims no interest in the contract. None of the parties with whom the agreement was made, have been in possession of the land or have extracted ore from it for several years. Under these circumstances, we are of the opinion that the contention of the respondent is correct. The contract was simply an option to purchase, by its terms not assignable, and was not in the nature of a covenant
‘ ‘ When one who mates a covenant with another in respect to land neither parts with nor receives any title or interest in the land, at the same time with and as a part of making the covenant, it is at best a mere personal one, which neither binds his assignee nor enures to the benefit of the assignee of the covenantee, so as to enable the latter to maintain an action in his own name for a breach thereof.” 3 Washburn on Real Property (4th ed.), 284; Spencer’s Cáse, 1 Smith’s Leading Cases, 174; Hurd v. Curtis, 19 Pick., 459; Newburg Petroleum Co. v. Weare, 44 Ohio St., 604; Van Rensselaer v. Bonesteel, 24 Barb., 365" court="N.Y. Sup. Ct." date_filed="1855-12-03" href="https://app.midpage.ai/document/van-rensselaer-v-bonesteel-5459222?utm_source=webapp" opinion_id="5459222">24 Barb., 365.
Nor was the nature of the contract such as to create an equitable title in the purchasers. Smith could not enforce performance on the part of those with whom he contracted. The consideration of $5,000 was to be paid only out of the mineral to be produced, and the mineral was a thing not in esse, but formed a part of the earth, and the agreement contained no provision by which its production could be compelled, and there was no obligation to convey the land until the consideration was paid. The agreement was but an option to purchase and gave to the prospective purchasers a right to extract ore.
“A mere contract or covenant to convey at a future time, on the purchaser performing certain acts, does not create an equitable title. It is but an agreement that may ripen into an equitable title. When the purchaser performs all acts necessary to entitle him to a deed, then, and.not till then, he has an equitable title, and may com
Nor is the contention of appellants, that suit, for a partition of the surface ground merely, can not be maintained, well founded. The law is well settled that, as to mineral lands, the surface may be owned by one person and the mineral underneath by another, and that each owner may have an indefeasible title. When the surface and underlying mineral strata are separately owned, they constitute separate corporeal hereditaments, with all the incidents of separate ownership. This being so, the surface land when owned separately from the mineral, may be partitioned the same as where there is no mineral underlying it. “Where there are mines, State quarries, and the like, in land, there may be a double ownership of such land, one of the mines, the other of the soil, and those may be held by different persons by separate and independent titles, each having a fee or lesser estate in his respective part.” 1 Washburn on Beal Property (4th ed.), 17; 1 Bindley on Mines, Sec. 9; Caldwell v. Fulton, 31 Pa. St., 475; Railroad Co. v. Sanderson, 109 Pa. St., 583; Canfield v. Ford, 16 How. Pr., 473; Marvin v. Brewster Iron Min. Co., 55 N.Y., 538" court="NY" date_filed="1874-01-27" href="https://app.midpage.ai/document/marvin-v--brewster-iron-mining-co-3630909?utm_source=webapp" opinion_id="3630909">55 N. Y., 538; Harris v. Ryding, 5 M. & W., 59; Green v. Putnam, 8 Cush., 21.
We do not deem it important to discuss any other question presented in this case.
The judgment is affirmed, with costs.