have been held to be such fixtures, which could only be removed while the tenant was in possession." But where the owner of a mine purchases a water ditch, with a view to use the water ditch in connection with the working of his mine, and the purchase includes "the waterrights thereto appertaining," such purchase does not necessarily constitute the ditch an appurtenance of the mine. Mere trade fixtures, though fixed to the soil may be removed without the consent of the owner. An example given is that of pans furnished to a mill owner upon his agreement to pay rent therefor.8 But these fixtures should be removed, when placed upon mines by a lessee during his tenancy.9 A chattel mortgage on an engine and boiler given to secure the purchase money has been held a prior lien over a previous mortgage on the realty.10

1 Harris v. Equator, &c. Co., 2 Col. Law Rep. 63.

2 Hughes v. Devlin, 23 Cal. 501; Forbes v. Gracey, 94 U. S. 762. 3 Spencer v. Winselman, 42 Cal. 479.

Strettell v. Ballou, 2 Col. Law Rep. 122.

5 Van Etten v. Jilson, 6 Cal. 19; Watts v. White, 13 Cal. 321.

6 Merritt v. Judd, 14 Cal. 59; Miller v. Dale, 44 Cal. 562; Tread. way v. Sharon, 7 Nev. 37.

7 Quirk v. Folk, 47 Cal. 453.

8 Prescott v. Wells, Fargo & Co., 3 Nev. 82.

9 Hayes v. New York, &c. Co., 2 Col. 273. 10 Tibbitts v. Moore, 23 Cal. 208.

§ 154. Conveyance of mining claims.—Where claims are held by right of possession, in the absence of a local statute prescribing the mode of their transfer, it has been held sufficient to pass the right to a successor, that a simple agreement be made to that effect, and the possession is delivered to the transferee, and a bill of sale will be competent evidence. But a bill of sale not under seal would not convey the legal title where it merely purported to convey the present interest of the seller. It mere

ly conveyed an equitable interest which would be held subject to the rights of the holders of the legal title or a superior equity. The transferee would only take such rights as the vendor had, and could not occupy the position of a bona fide purchaser. The doctrine of caveat emptor was held to apply in all such cases.2 A sale by one in possession, entirely by parol and the delivery of possession, was held equally as good as though evidenced by bill of sale. And such a sale and delivery. will cut off a subsequent purchaser for value who receives a deed regularly acknowledged. Possession by the first purchaser is notice to the latter, although the claim is not enclosed. But this rule allowing a verbal sale was held only to apply where the vendor was in possession, and could deliver possession to his vendee. Where another party held adversely the conveyance was required to be in writing.5 And where the conveyance was by bill of sale, that was held the best evidence of the transfer, and excluded parol evidence, subject to the usual exceptions in such cases.6 But where the conveyance was simply by a bill of sale not under seal that was held sufficient.7 Where the occupant quit the possession and expressed the wish that another should succeed, it was held to be a gift and no abandonment, if the wish were communicated.8 By statute of April 13, 1860, the rule of verbal sales was abrogated in California. The provision that mining claims might be made by bill of sale, was construed as mandatory. But this statute did not apply to gold mines, until the section excepting them was subsequently repealed.9 However, it was held in the same case in which the mandatory construction was given to the statute, that a bill of sale executed by one verbally authorized was sufficient.10 The statute requiring conveyances of mining claims to be in writing, is liberally construed. No form of words is necessary in a bill of

sale. It will be so construed as to effectuate the intention of the vendor. It will not be held void for uncertainty of description where the points named may be wellknown monuments. Nor is it void because it is a voluntary gift.11 The interest of a mortgagor, who retains possession until forfeiture, may be conveyed by him, or sold under attachment or execution against him.12 But one receiving a bill of sale of mining property, not under seal, which only purported to convey the interest of the vendor, took subject to all the infirmities of the vendor's title.13 A conveyance by sheriff's deed of a mining claim sold under execution must recite the judgment on which the execution was issued, otherwise it will be void.14 And the judgment and execution are facts necessary for one tracing his title through a sheriff's deed, to establish on the trial.15 Miners' Title Bonds, taken without a valuable consideration expressed in the instrument, by which the grantee or obligee (if he may be called either) obtains an option to purchase at a stated price, is void for the want of consideration and mutuality. The only title bonds which will be held valid and binding on either party are such as contain an unconditional promise to purchase, or where there is a consideration paid in money or work on the claim for the option.16

1 Jackson vs. Feather River, &c. Co., 14 Cal. 18; Blodgett vs. Potosi, &c. Co., 34 Cal. 227; Draper vs. Douglas, 23 Cal. 347.

2 Clark vs. McElroy, 11 Cal. 155 (citing Adams vs. Cuddy, 13 Pick. 463; Morse vs. Godfrey, 3 Story, 364; Dupont vs. Wertheman, 10 Cal. 354); Waring vs. Crow, 11 Cal. 366.

3 Gore vs. McBrayer, 18 Cal. 582; Table Mountain, &c. Co. vs. Stranahan, 20 Cal. 198, s. c., 21 Cal. 548; Gatewood vs. McLaughlin, 23 Cal. 178; Antoine Co. vs. Ridge Co., 23 Cal. 219; Mining Co. vs. Taylor, 100 U. S. 37.

4 Patterson vs. Keystone M. Co., 23 Cal. 575.

5 Copper Hill M. Co. vs. Spencer, 25 Cal. 18.

6 Crary vs. Campbell, 24 Cal. 634.

7 St. John vs. Kidd, 26 Cal. 263.

8 Richardson vs. McNulty, 24 Cal. 339.

9 Cal. Stat. 1863, p. 98.

10 Patterson vs. Keystone M. Co., 30 Cal. 360; Hardinburgh vs. Bacon, 33 Cal. 356; Felger vs. Coward, 35 Cal. 650; Milton vs. Lombard, 51 Cal. 258.

11 Myers vs. Farquharson, 46 Cal. 190.

12 Halsey vs. Martin, 22 Cal. 645.

13 Clark vs. McElroy, 11 Cal. 155 (citing Adams vs. Cuddy, 13 Pick. 463; Morse vs. Godfrey, 3 Story, 364; Dupont vs. Wertheman, 10 Cal. 354).

14 Wiseman vs. McNulty, 25 Cal. 230.

15 Quirk vs. Folk, 47 Cal. 453.

16 Smith vs. Reynolds, 1 Col. Law Rep. 89, see. infra § 155 contracts.

§ 155. Mining contracts.-The law of contracts applies alike to mining as to other branches of business; but there are contracts entered into in this behalf that are somewhat peculiar in their operation. As, for example, contracts to convey, which are conditioned only upon the option of the purchaser to buy for a stated price, within a given time, without further consideration expressed in the bond. These bonds, or contracts, are in contemplation of law nothing more than open proposals, which may be withdrawn by the seller at any time before they are fully accepted, and the purchase price tendered by the purchaser. They are not binding upon either without a valuable consideration, or covenants which bind both parties to consummate the bargain. The payment of a forfeit in money or labor does not bind the purchaser to pay the balance. The forfeit is only the consideration which he pays for the option.2 Another kind of contract which figures conspicuously in mining enterprises, is the agreement to prospect for mines, to be located on joint account. Mines discovered by a prospector while such an agreement is in force makes the parties tenants in common of mines so discovered, and entitles each to the interest agreed upon.3 But if the

contract has been abandoned by the prospector, and a new one entered into with another, the deserted partner has no interest in the mines discovered under the new contract. And such contracts may be specifically enforced against the active party to the agreement who locates in his own name. A contract by several to purchase jointly an interest in a mine, is for the benefit of all, and if one party takes the title in his own name, he may be compelled to convey to the others.6 Contracts by mining partnerships have been sustained, in the absence of a by-law authorizing them, where the contract was consistent with the general usages of the company.7 The general doctrine of agency applies to miners' contracts. But a superintendent has no authority by virtue of his employment to borrow money on the credit of his principal.8

1 Smith vs. Reynolds, 1 Col. Law Rep. 89 (U. S. Cir. Ct. Dist. Col.). 2 Gordon vs. Swan, 43 Cal. 564; North Georgia M. Co. vs. Latimer, 51 Ga. 67; Luckhart vs. Ogden, 30 Cal. 547.

3 Henderson vs. Allen, 23 Cal. 519.

4 Johnstone vs. Robinson, 2 Col. Law Rep. 110.

5 Sears vs. Collins, 1 Col. Law Rep. 489 (Sup. Ct. Col., April term, 1881); Welland vs. Huber, 8 Nev. 203.

6 First Nat'l Bank vs. Bissel, 1 Col. Law Rep. 158 (U. S. Cir. Ct. Col.).

7 Taylor vs. Castle, 42 Cal. 367.

8 Breed vs. First Nat'l Bank, 4 Col. 481.

§ 156. Miners' liens.-One of the most important local statutory provisions which is specially recognized by the law of Congress, is that giving liens upon mines for labor performed thereon.1 It has been decided under the Nevada statute that the foreman of a mine had a lien on the property for his salary.2 And in California, for cutting cord-wood for use at the mine, it not being denied that the labor was done on the mine.3 The Nevada statute was also construed to give a laborer a lien on a