without her husband joining in the execution of the instrument of conveyance or incumbrance. Leases of the character of the present," said the court, "differ from the ordinary agricultural lease, in that the former may carry a substantial and enduring interest in the freehold, while the latter vests but a transient and temporary interest, that of raising and removing crops. The former, however, in their primary effect, part with no immediate title or estate, and carry but right of exploration, any title or estate which may be contemplated remaining inchoate and of no effect until the oil or gas is found.17 For the purposes of prospecting, such leases involve a mere use, and part with no greater interest in the freehold than the ordinary agricultural lease. We have here no question of the effect of the instrument of Mrs. Swain to carry a freehold estate, the question being as to the validity of the lease to the appellees in vesting the exclusive right of prospecting or operating for gas and oil. For such purposes we do not doubt the power of Mrs. Swain to lease without her husband joining.' 99 18 It will be observed that the terms of the two leases drawn in question were different; and on this difference the cases may be reconciled. Where husband and wife owned lands as tenants in common, and the lessee, supposing that the husband owned the entire interest in them, took a lease of them, wherein he was to pay a certain rent or complete certain work by a fixed date, or rent where no operations were begun, and none were begun; and after the demand for rent the lessee ascertained that the wife had an interest in the premises, and he then demanded that the wife should join in the lease, to which the lessor assented, but he never secured his wife's signature; and the wife was present during all the negotiations for the lease, but never then or afterwards made objection; it was held that the lessee must pay the full amount of the rent.1 17 Citing 18 Heal v. Niagara Oil Co., 150 Ind. 483; 50 N. E. Rep. 482. 19 19 Kunkle v. People's, etc., Gas Co., 165 Pa. St. 133; 30 Atl. Rep. 719; 35 W. N. C. 465. See Simmons v. Buckeye Supply Co., 21 Ohio Cir. Ct. Rep. 455; 11 Ohio C. D. 690. $258. Wife joining husband in lease-homestead. A wife should join her husband in a lease of his lands; for upon his death, if she did not join him in its execution, she could assert her marital rights, to the probable injury of an existing lease on the land. So if a lease is made of the homestead, she should join in its execution, not only for the reason given, but for the reason that in those States requiring her consent to the transfer or encumbrance of the homestead to make the transfer or encumbrance valid the same consent is required in granting a lease for mining or oil purposes. Thus a lease of a homestead where such a statute prevails, granting the privilege for gas, oil, and other minerals at the lessee's pleasure, and to erect all derricks, engine houses, and buildings necessary in mining, excavating mines, and piping oil and gas, is such an alienation as to require the wife's signature, and if she does not sign it, the lease is void. They must join in the same instrument, and cannot sign separate instruments so as to bind the land or either of them.21 A power of attorney authorizing a sale of the premises must be executed in the same way." 20 20 Franklin Land Co. v. Wea Gas and Coal Co., 43 Kan. 518; 23 Pac. Rep. 630; Palmer Oil and Gas Co. v. Parish, 61 Kan. 311; 59 Pac. Rep. 640. See Pilcher v. Atchison, etc., Ry. Co., 38 Kan. 516; 16 Pac. Rep. 945; Evans v. Grand Rapids, etc., Ry., 68 Mich. 602; 36 N. W. Rep. 687. 21 Ott v. Sprague, 27 Kan. 620; Wallace v. Travelers' Ins. Co., 54 Kan. 442; 38 Pac. Rep. 489; Gage v. Wheeler, 129 Ill. 197; 21 N. E. Rep. 1075. 22 Wallace v. Travelers' Ins. Co., supra. As to what will not be an aban 22 donment of a homestead leased for gas, where husband and wife remove from it, because of its undesirability as a residence. See Palmer Oil and Gas Co. v. Parish, supra. In Texas, where property was held as community property, and the lessor's husband represented to the defendants he would extend the time, and, on the faith of such representation, the defendants went on to expend moneys and carry out their part of the contract, the lessor was held bound by such waiver. Presido Mining Co. v. Bullis (Tex.), 4 S. W. Rep. 860. CHAPTER IX. TENANTS FOR YEARS. $259. May work open mines. $260. When may open new mines. $259. May work open mines. Unless restricted by the terms of his lease, a tenant for years may work mines opened at the time his lease was granted; but he may not open new mines.1 And if an owner of land upon which there is a mine opened, make a general lease of it, without any reference to the mine, the lessee has a right to work the mine for he has a lease of all the land, and it is intended that his interest is as general as his lease." $260. When may open new mines. But the terms of the lease, though for years, may be such as to exclude the right to mine; or it may be such as to authorize the lessee to open new mines. Thus a demise for agricultural purposes only is such a limitation as to exclude the right of the lessee to take out stones from a quarry on the premises, although open at the time of the lease. And where the lease contained the following clause: "To have and to hold the above granted and demised premises, with every privilege, right and appurtenance whatsoever, to the said premises belonging or in any wise appertaining, whether ways, waters, water courses, mines, and 3 1 Harlow v. Lake Superior, etc., Co., 36 Mich. 105; Shaw v. Wallace, 25 N. J. L. 455; Kier v. Peterson, 41 Pa. St. 361; Pennsylvania Salt Co. v. Neel, 54 Pa. St. 9; Guffin v. Fellows, 81 Pa. St. 114. 2 Owings v. Emery, 6 Gill. 260. 3 Freer v. Stotenbur, 2 Keyes 467; 2 Abb. Dec. 189; reversing 36 Barb. 641. minerals of whatever description," it was held that he was entitled to open and work new mines. If there be a lease of land with the mines in it," said the court, "and there be no open. mines, the lessee may dig for mines, otherwise the grant as to mines will not take effect." If the land be leased for coal mining purposes, of course the lessee may open new mines and take out coal.5 4 Griffin v. Fellows, 812 Pa. St. 114; contra, Harlow v. Lake Superior, etc., Co., supra. Heil v. Strong, 44 Pa. St. 264; Gartside v. Outley, 58 Ill. 210; CHAPTER X. TENANCIES FOR LIFE.-DOWER. $261. May work mines or oil wells already open. $262. Rule concerning life tenants applies to oil leases. $263. May not open new mines or bore new wells. $264. Curtesy estate of husband. $265. When mines may be opened or wells bored. $266. Mineral lands unfit for any other purposes than mining. $267. Reversioner or remainderman opening wells. $268. Life-tenant must account for waste. $269. Title to mineral or oil severed. $270. Destruction of corpus of the estate. $271. Oil or gas may be exhausted. $272. Estoppel of remainderman. $273. Assignment of dower in mines. $261. May work mines or oil wells already open. In an instance of coal and the like minerals, a tenant for life may work mines already opened, even to their exhaustion, carrying on the mining skillfully so as not to injure the inheritance; and he may even sink new shafts or wells to the vein already open. This is also true of a widow's dower. She has the right to work mines that were open at her husband's death, which have been assigned to her.1 And the life tenant may 1 Lemfer v. Henke, 73 Ill. 405; Priddy v. Griffith, 150 Ill. 560; 37 N. E. Rep. 999; Hendrix v. McBeth, 61 Ind. 473; Elias v. Snowdon State Co.. L. R. 4 App. Cas. 454; Moore v. Rollins, 45 Me. 493; Billings v. Taylor, 10 Pick. 460; Kier v. Peterson, 41 Pa. St. 361; Seager v. McCabe, 92 Mich. 186; 52 N. W. Rep. 299; Campbell v. Wardlow, L. R. 8 App. Cas. 641; Reed v. Reed, 16 N. J. Eq. 248; Gaines v. Mining Co., 33 N. J. Eq. 603, reversing 32 N. J. Eq. 86; Coates v. Cheever, 1 Cow. 460; Rutland v. Gie, 1 Sid. 12; 1 Lev. 107; Neel v. Neel, 19 Pa. St. 323; Brooks v. Hanna, 19 Ohio C. Ct. Rep. 216; 10 Ohio Dec. 480; Irwin v. Covode, 24 Pa. St. 163; Lynn's Appeal, 31 Pa. St. 44; Westmoreland Co.'s Appeal, 85 Pa. St. 344; Eley's Appeal, 103 Pa. St. 300; Sayers v. Hoskinson, 110 Pa. St. 473; 1 Atl. Rep. 308; Fairchild v. Fairchild (Pa.), 9 Atl. Rep. 255; Woodburn's Est., 138 Pa. St. 606; |