MAJ,COMSON V. WAPPOO MH,LS.
907
shall be so marked on the ground that its boundaries can be' readily traced, they do not provide for a maintenance of such marking. If a location be once validly made, the stakes marking it may disappear, and nothing be left to identify the ground to anyone other than the IDcator, without invalidating the claim. If thereafter an· other qualified locator bases a location on a discovery of a vein with· in the first claim, not then subject to relocation, he gains no right, be· cause he has discovered no vein on the land of the United States open toexploratioll; but if, having discovered a vein on the land so open to exploration, he unwittingly places one or more of his stakes on the land already claimed, there seems no reason to avoid his claim to the unappropriated land by reason of the mistake. In accordance with the views here expressed, there will bea decree for the complainants. ' MALCOMSON v. WAPPOO MILLS et al. (Circuit Court, D. South C3;rolina. 1.
February 22, 1898.)
LANDLORD AND TENANT-LEASE-LIEN Fon RENT..
An instrument which conveys to the grantee the "exclusive right to enter upon lands," and "to dig and mine phosphate rock and other minerals to any exten,t he may require, and carry 'away and sell for his own use," for a term of five years, on ltcertain royalty; 'is II lease, and not a'license to mine. The lessor bas the rigbt of a landlord, and may distrain for rent.
2.
SAME-PROPERTY IN HANDS OF RECEIVER.
Pbosphate rock mined by tbe lessee baving been placed in the hands of a receiver before the right to distrain for rent was exercised, tbe statute of Anne, in force in Soutb Carolina (section 1943, Rev. St.), prOViding tbatno goods sold under execution can be removed from leased premises, unless the party removing pay to the amount of one year's rent, applies, and the proceeds of the rock are subjected to the payment of the rent.
S.
SAME-CONTRACT WITH, LESSEE.
A contract, not under seal and not recorded, entered into witb one who is a lessee for a term of years, of pbosphate lands, to mine rock at a certain price per ton, is not an assignment or a sublease. The contractor is not the owner of the rock mined, and cannot defeat the landlord's lien.
4. SAME-L-I.BOHER'S LIEN.
An independent contractor to mine phospbate rock at a certain price per ton, employing otbers to do the work, is not a laborer or employe entitled to the benefit of tbe South Carolina act of Marcb 5, 1897, to provide for laborer's liens.
Charles Inglesby and H. A. M. Smith, for petitioner Lewis. Lord & Burke, for petitioner Cuthbert. Smythe, Lee & Frost, for general creditors. SIMONTON, Circuit Judge. This case now comes up as to the disposition of the proceeds of sale of, certain tons of phosphate rock all the land of George T. LewiS, mined under a mining 3.",o-reement between O. C. Jr., and Mr. Lewis"and. heretofore, ordered to be sold by the receiver. George T. Lewis is the owner in fee simple of a tract of landju St. Andrews parish, in Oharleston county, betw.een Ashley f! and Stono rivers, containing about 3,775 aC1' of land. 0n the 8th day of 1897, an indenture was entered into between Geotge
908
85 FEDERAL REPORTER.
'r. imdC. C. Pinckney, Jr., wherein and whereby provision was made far the mining of these lands by Cj C. Pinckney, Jr., for the full period of five years from 1st January, 1896, renewable from time to time as therein provided. The first question made· in the case is, is this identure a lease, or merely a license to dig and mine,-a 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. C. 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 reJy upon Doe Y. 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 are, 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 prlvlleges 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 larid," etc. It was contended that this instrument, admitted to be a deed of grant, was in effect a license, merely, and grantsold, and con:veyetl, not a tangible'estate, either real or a chattel l
MALCOMSON V. WAPPOO MILLS.
but simply an interest in the nature of an incorporeal hereditament. This question went up to the supreme court, and that court held that the deed was a demise, and not simply the grant of a license to mine. "The true inquiry," say the couct, is, "what, from the construction of the whole instrument, was the nature of the right, power, or property intended by the parties to be vested in the grantee?" Examining the terms of the deed, and using as a test its character whether exclusive or not, the court conclude from its terms that the right of the grantee during the term was exclusive, and so he had property in the minerals during that term. Therefore the grant operated as a demise, and was not merely a license. If this deed is examined, it will be seen that it gives to Pinckney the exclusive right to mine phosphate rock, as well as the possession. It gives him the exclusive right to enter upon all the lands of the grantor, 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. It, in express terms, deprives Lewis, the owner, of mining the lands, so long as Pinckney is mining there, although he could use them for purposes other than mining. r The lessee must mine a minimum of 2(),OOO tons p year. He must pay all taxes on the "demised premises." He covenants to pay the rent or royalty and taxes. Under certain cireumstances,-a very low price of rock,-he can cease mining, and can either remain in possession until prices shall rise, or he may surrender the possession to his lessor, who also has the right, on failure of the lessee, to perform the covenants of the lease, "without further notice or demand, enter into and upon the said premises, or any part thereof, in the name of the whole, and repossess the same as his former estate, and expel the said lessee and those claiming under him, and remove his and their effects forcibly, if necessary, without being taken or deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent, or proceedings for breach of covenant." The question in. Massot's Case was whether the deed operated as a demise, or whether it created in the grantee an incorporeal hereditament. The conclusion was that it was a demise for a term of years, and not an incorporeal hereditament,-a conclusion based upon the fact that the right of the grantee was exclusive, even as against the grantor, and because it amounted to a conveyance of all the minerals the grantee could mine and remove during the term, giving him full proprietorship therein. It is difficult to reconrile this case with Doe v. Wood, or with the Pennsylvania cases commented upon in the opinion of the court, or with the case in Wallace, Jr., quoted in the opinion. But, as has been said, this case is of authority in this court. The others are not. There is but one provision in this deed which seems to militate against the otherwise plain intention of the instrument that it should op rate as a lease: "It III 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, his heirs and assigns, from entry on the sald 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, that such business should. not interfere with the lessee's mining operations."
, seem that a similar provision existed in Massot deed.' M08es could, only dig and' mine one-third of the land at one time. Massot's counsel contended, and the other side admitted, that Massot had a concurrent right with Moses to dig and mine in the otl).er two-thirds, and perhaps in the third mined by Moses. This then being, not the creation of an inCOrporeal hereditament, but a demise for a term of years, it is what the parties thought and intended it to be, a lease, and the lessor had all the rights a landlord has. Rent or royalty being in arrear, Lewis issued a distress warrant,' and posted andpla'carded a numl:Jer of piles of rock lying on the land. This distre!ilswarrant was issued after a, receiver was appointed in this case, and if the rock was the property of C. n Pinckney, oyer whose estate a receiver was appointed, then theexecntion of the distress warrant was a nullity. Wiswall v. Simpson, 14; How. 52; Buck v; Colbath, 3 Wall. 340;Inre Tyler, 1490. S. 1:64, 13 Sup. Ct. 785. But it is claimed that, the :Claim for rent in SouthCarolina is protected by a lien, and that in any event the intervener can hold tbis rock for, arrears of rent. Using the term ''1i$'' in its 'broad, sense, it cannot be said that in South Carolina it is secured by a lien. Salvo v. Schmidt, 2 Spears, 512. Under the operation of of Anne, made of force in this state, afterwaros repealed, arid again re-enacted with modificaetion 1943, Rev. St., no goods sold under tions, 'aIld now known as S execution can be removed from leased premises unless the party seizamount not more than one ing them pay to the landlord the year's ,rent. To this extent) rent for a limited period has a priority, w'hichmayhe called a lien.' Thisisa remedial statute, and must be construed liberally. The:equity of the statute has been applied to cases inb;ankruptcy. Longstreth v. ,Pennock, 20 Wall. 576; In re Trim, Fed. Cas. No. 14,174; Lambert v.De Saussure, 4 Rich. Law, 248; In reW;r.nne, Fed. Cas. :N0.'18,117. It is said, also, that the appointment of a receiver is in the nature of an equitable execution. So, in every point of view, the statute will be 'applied in this case, and the rent be paid out of the proceeds of rock, property of C. C.Pinckney, Jr. During Ms 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 corred the landlord cannot claim a lien on this rock. Compare 14 St. at Large, p. 511. The contract is in these words: , "Mr. O\lthbert will undertake the mining (by hand) his own account. He ,will agree to mine an ayel;age of 400 toni! perweek,and deliver it In the cars at $1.50 per ton, payable'tyeekly, 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 contlnue 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, wblchisin ink. Does this contract, conveyto Mr.Outhbertthe right and interest which Mr. Pinckneyhcld under the deed of LeWis?
MALGOMSON
WAPPOO' MIlLS.
911.
The instrument is informal, to a degree. It is not under seal, and is not recorded. Pinckney' held under a lease giving him the exclusive privilege of mining in these lands for" a, of years, renewable to still further terms. This contract cannot' be construed to be an assignment of his term,or a sUblease, nor' fioetl it profess to convey to Cuthbert the phospllate rock. ,It contract between, Pinclmey and ,Cuthbert,under which, as an iridependentcontractor, Cuthbert undertakes to do mining for Pinckney, to be paid for at a certain fb:ed rate for all rock mined and delivered. He secures the performance of hiscpntrl\ctby digging 250 pits in advance, for which he be p'aid lintil final settlement. The results of his work must average,'.!OO tons per week, and he gets his pay weekly, on an estimated figure. It has been suggested'that he is to mine the rock, and then sell all that he can get out to Pinckney, at $1.50 per ton; that is to say, Pinckney, who has purchased from Lewis all the rock he can mine, first sells, all such rock to Cuthbert, and then forthwith buys it again, at a figure not regulated by its value, but at a fixed rate. This is ingenio,us, it it is complicated. Is it not more simple and more reasonable to that Pinckney, being the owner of all such rock as was mined, contracted with Outhbert to do the mining, and paid him at the rate of $1.50 for each ton he Should mine? It is said, however, that, if the rock be not the property of Cuthbert, he has a lien on it for the labor expended thereon, under the act of assembly approved 5th March, 1897. The title of this act is, "To provide for laborers' liens." It gives a lien to all employes in factories, mines, etc., to the extent of all sucp salary or wages as may be due to them under contract with their employer, on all the output of the mines, etc. It is evident that, under this ,contract, Cuthbert was an independent contractor, having the work done on his own accoUllt (that is, at his own expense). He necessarily was compelled to employ others. He was not bound to do any work himself. No provision is made for the payment of anyone but l).imself, and he got a fixed sum per ton. He does not come within theterm "laborer" or "employe." Vane v. Newcombe, 132 U. S. 220, 10 Sup. Ct. 60. This petition must be dismissed. ' It,is ordered t.hat the special master ascertain what rent or royalty was due under the lease of George T. LeWis to C. C. 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. C. 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.
912.
85 FEDERAL REPORTER. MALCOMSON v. WAPPOO MILLS et al· Ex parte LEWIS et al. (Circuit Court, D. South Carolina. March 11, 1898.)
.
LANDLORD AN!> TENANT-LIIl:N FOR RlIlNT-STATUTE OF ANNE.
Under the statute of Anne, in force iii. South Carolina (section 194:3), which provides that goods taken on execution shlill not be removed from leased premises untIl rent due,at the time of the taking of the goods in execution is paid,: the landlord has a lien for rent due at the time of the appointment of a receiver for the property of a lessee, but not for rent which subsequently accrued..
Charles Inglesby and H. A. M. Smith, for petitioner Lewis. Lord & Burke, for petitioner Cuthbert. Smythe, Lee & Frost, for general creditors. SIMONTON, Circuit Jijdge. This case came up some days ago upon the petition of George T. Lewis, claiming a lien for rent upon some tons of phosphate rock on lands leal;led by him to C. C. Pinckney, Jr. After hearing the pleadings and argument of counsel, it was determined that the instrument under which C. C. Pinckney, Jr., held these phosphate lands did not create a license to mine, but was a demise by way of lease.' 'I'he effect and operation of this construction was the sale by Lewis to Pinckney of SO mucp phosphate rock as he should dig, mine, and remove from' ilie land during the term (Massot v. Moses, 3 S. C. 168), upon a rent estimated by way of royalty on each ton so dug, mined, and removed. The instrument having been construed to be a lease, and the relation of landlord and tenant having so been established between Lewis and Pinckney, the former was given all the rights of a landlord, and, under ordinary circumstances, a right to distrain for rent. But, the property of Mr. Pinckney having been placed in the hands ofa receiver before this right of distress was exercised, it was held that the equity of the statute of Anne (of force in South Carolina) should be applied to this case, and that Mr. Lewis would be secured in this personalty the same lien, under the equitable execution. of the receivership, which he would have had if a levy had been made under an execution at law. A reference was order.ed to the special master "to .ascertain what rent or royalty was due under the lease of George T. Lewis to C. C. Pinckney, Jr., and under the tripartite agreement, part and parcel thereof, at the date of the appointment of the receiver in this case, and, jf it be less than the annual sum which, under said lease and said tripartite agreement, the said C. C. Pinckney, Jr., is liable to pay each year as rent for said lands." The special master has made his report. It appears 'that by the terms of the leas.e the rent was payable quarterly, on the 1st days of September, December, March, and June in each year. The receiver in this case was appointed on the 18th day of October, 1897. On 19th October, 1897, the landlord entered upon the land, and distrained on the rock. On 20th of October, exercising his rights under the lease, with the full recognition and concurrence of the court, he