5 has

examination of witnesses de bene esse been construed as requiring such notice to be given as will enable the party to be present at the examination either in person or by attorney.6 Under the California statute, upon an application for a commission to take the deposition of a foreign witness, the only notice required to be served upon the opposite party is the order of the court requiring such party to show cause on the day named in the commission." It has been said that in taking depositions in perpetuam under the federal judiciary act & notice is to be given by the magistrate and not by the party."

In Faunce v. Gray,10 prior to the commencement of an action against an administrator, his deposition was taken in perpetuam, at the instance of the plaintiff, in relation to facts which came to his knowledge before he was appointed administrator; but notice was not given to him as a party interested, and the court held that the deposition was not admissable in evidence, as a deposition, in an action by the heir against such administrator, because of want of notice to him as an interested party.

2. Service of Notice.—The rule as to the service of notice is not uniform throughout the States. In some cases it is held that the notice must be personally served," while in others it is said that it is not necessary.12 And it has been held that service by leaving a copy of the notice at the party's place of abode is not sufficient, 18 where the party swears that he did not receive it.14 On the other hand, it is said that service by leaving a copy of the notice at the place of residence is sufficient. 15 But it seems that proof of service by leaving a copy at the party's house, without stating that it was left with any person, is not sufficient evidence of serv

52 Rev. Stat. 392, and the subsequent amendment thereto; 2 Rev. Stat. 398, § 8.

6 Elverson v. Vanderpoel, 41 N. Y. Sup. Ct. Rep. 257.

7 Dambmann v. White, 48 Cal. 439.

8 U. S. Rev. Stat., § 866.

9 Young v. Davidson, 5 Cr. C. C. 515.

10 21 Pick. 243.

11 Carrington v. Stimson, 1 Curt. C. C. 437; McEwer v. Morgan, 1 Stew. (Ala.) 190.

12 Elverson v. Vanderpoel, 41 N. Y. Sup. Ct. Rep. 257. But this case is governed by the New York statute regulating service on notice. See N. Y. Rev. Stat. 392, 398, § 8.

13 Carrington v. Stimson, 1 Curt. C. C. 437. 14 Hill v. Norwell, 5 McL. C. C. 583.

15 Kennedy v. Fairman, 1 Hayw. (N. C.) 404.

ice. 16 Service by reading the notice is held to be sufficient where no copy is demanded." Even a verbal notice has been held to be sufficient where the fact of notice is not denied. 18

Service of notice cannot be shown by parol evidence; 19 and the affidavit of the party-is not admissible to prove service of notice.20

a. On Partner.-Service of notice upon one partner, in an action against copartners, is a sufficient evidence.21

b. On Attorney.-The rule as to the service of notice upon the attorney of record of the party is not harmonious throughout the States. In some cases it is held that notice

personally personally served upon such attorney is sufficient, even though the attorney may have appeared without authority,22 or has withdrawn from the case, of which fact notice was given before making the service; 23 and it has been thus held, even where the statute required the notice to be given to the party personally.24 Other cases hold that notice served upon the attorney of the party is irregular and not sufficient service, where the party resides in the State, 26 though sufficient where he is a non-resident.27 It has been said that where the notice is directed to the party it may properly be served upon his attorney.28

3. Must be Reasonable.—The notice should be reasonable. What is reasonable notice will depend upon the circumstances of each particular case.29 One day's notice to take depositions in a particular place to a person residing two miles away is said to be reasonable.3 30 And a notice to examine a witness in the place where the notice was served, at eight o'clock in the evening of the same

16 Crozier v. Gano, 1 Bibb (Ky.), 257.

17 Brewington v. Endersly, 4 G. Greene (Iowa), 263. 18 Milton v. Rowland, 11 Ala. 732. 19 Barnes v. Ball, 1 Mass. 73.

20 Lockwood v. Adams, 10 Ohio, 397.

21 Cox v. Cox, 2 Port. (Ala.) 533.

22 Smith v. Bodwitch, 7 Pick. 137.

23 Herrin v. Libby, 36 Me. 350.

24 Hunt v. Crane, 33 Miss. 669.

25 Middleton v. Taylor, 1 N. J. L. 445; Arnold v. Renshaw, 13 N. J. L. 317; Buddicum v. Kirk, 3 Cr. C. C. 293; Wheaton v. Love, 1 Cr. C. C. 429; Leiper v. Bickley, 1 Cr. C. C. 29.

26 Williams v. Gilchrist, 3 Bibb (Ky.), 49.
27 Pettis v. Smith, 2 A. K. Marsh. (Ky.) 194.
28 Barrel v. Limington, 4 Cr. C. C. 70.

29 Atwood v. Frescot, 17 Cal. 37; Ellis v. Jaszusky, 5 Cal. 444.

30 McGenley v. McLaughlin, 2 B. Mon. (Ky.) 280.

day on which the notice was served, where the witness intended to leave the State the following morning, was held good in Mumford v. Church. Five days' notice to take depositions eighty-three miles away, held prima facie reasonable in Dean v. Tygert.32

Any notice requiring exertion beyond the usual mode of traveling is not reasonable.33

Omission in a commision to take depositions to design what notice shall be given, will not exclude the depositions where it is made to appear that sufficient or reasonable notice was given.34

36.

43

copy of the order to show cause on a day named in the commission is sufficient notice to take the deposition of foreign witnesses.42 Notice to take depositions on a given day, and if not on that day two weeks subsequent thereto, has been held to be a legal notice; and so has a notice to take depositions on the fifth or sixth of a designated month.44 But a notice to take depositions upon two successive days is said to be irregular.45 And a notice to take depositions on the fourth, fifth, and sixth of a specified month, or on one or more of them, is indefinite and insufficient. 46 A notice to take depositions on a particular day of the week for three succes

31 1 Johns. Cas. (N. Y.) 147. 321 A. K. Marsh. (Ky.) 172.

33 Shropshire v. Dickinson, 2 A. K. Marsh. (Ky.) 20; Waters v. Harrison, 4 Bibb (Ky.), 87; Kincaid v. Kincaid, 1 J. J. Marsh. (Ky.). 100.

34 Parker v. Haggerty, 1 Ala. 632; Brahan v. Debrell, 1 Stew. (Ala.) 14; Lesne v. Pomphery, 4 Ala. 77.

35 Robertson v. Campbell, 1 Overt (Tenn.), 172; Minot v. Bridgewater, 15 Mass. 492; Barnes v. Ball, 1 Mass. 73.

36 Hays v. Barders, 6 Ill. (1 Gilm.) 46.

37 Eastman v. Coos Bank, 1 N. H. 23; Great Falls Mfg. Co. v. Mathes, 5 N. H. 574.

38 Martin v. Brown, 8 Blackf. (Ind.) 443; Connersville v. Wodleigh, 6 Blackf. (Ind.) 297; Nevan v. Roup, 8 Iowa, 207; Talbot v. Bradford, 2 Bibb (Ky.), 316; George v. Nichols, 32 Me. 179; Croaker v. Appleton, 25 Me. 131; Ragan v. Cargill, 24 Miss. 540; Goodfellow v. Landis, 36 Mo. 168; Tayon v. Ladew, 33 Mo. 205; Seymour v. Farrell, 51 Mo. 95; Jackson v. Perkins, 2 Wend. 308; Jackson v. Kent, 7 Cow. 59; Rushmore v. Hall, 12 Abb. Pr. 420; Kea v. Robenson, 4 Ired. (N. C.) Eq. 373; Shutter v. Thompson, 15 Wall. 151; Miller v. McDonald, 13 Wis. 673.

Seymour v. Farrell, 51 Mo. 95.

40 Dorrance v. Hutchinson, 22 Me. 357.

41 Pickard v. Polhemus, 3 Mich. 185. This case was decided under the statute. See Mich. Rev. Stat., 1838, tit. 2, ch. 4.

depositions on Sunday is not good; 48 but a notice to take on the fourth of July is good, that day not being a legal holiday.49

II. Publication-1. Discretion of Court.— The publication of depositions taken in perpetuam is a matter resting in the sound discretion of the court, controlled by the special circumstances surrounding each particular case; 50 and, as a rule, publication will not be made while the witness is yet living, or capable of attending the trial; and is never made except in support of an action. By the English practice the court will not allow a deposition taken under a bill in perpetuam to be published, except in support of a suit or action, and then only after the death of the witness, or in case of his being sick or prevented by accident from attending court to be examined.52. There are very few cases in which publication has been made during the life-time of the witness,53 and as to some in which it has been ordered doubts have been expressed. If it is shown to the satisfac

42 Dambmann v. White, 48 Cal. 439.

43 Moore v. Humpherys, 2 J. J. Marsh. (Ky.) 54. 44 Kennedy v. Alexander, 1 Hayw. (N. Car.) 25. 45 Carmall v. Post, 8 Watts (Pa.), 406.

46 Humphries v. McCraw, Ark. 61; Caldwell v. McVicar, 9 Ark. 418; Reardon v. Farrington, 7 Ark. 364; Harris v. Hill, 7 Ark. 452.

47 Bedell v. State Bank, 1 Dev. (N. Car.) L. 483. 48 Sloane v. Williford, 3 Ired. (N. Car.) L. 307. 49 Rogers v. Brooks, 30 Ark. 612.

50 Harris v. Cotterell, 3 Meriv. 678, 680.

51 Wequelin v. Wequelin, 2 Curt. C. C. 263; Morrison v. Arnold, 19 Ves. 670; Atty.-Gen. v. Ray, 2 Hare, 518; 1 Smith Ch. Pr. 768; Taylor Ev., § 490; 1 Whart. Ev., § 184.

52 Morrison v. Arnold, 19 Ves. 669; Barnsdale v. Lowe, 2 Russ. & Myl. 142; 1 Smith Ch. Pr. 366. 53 Barnsdale v. Lowe, 2 Russ. & Myl. 142. 54 Id.; Wyatt Pr. Reg. 73.

tion of the court that the witness has died since the taking of his deposition, or is unable from any cause to attend the trial, the deposition will be ordered to be published.55 But where the witnesses are living at the time of the trial, are within the jurisdiction of the court and capable of attending, they must be examined in open court.56

The publication of depositions in perpetuam for the purpose of perfecting the title to an estate, will not be allowed, even where the witnesses are dead.57

Depositions taken de bene esse are never published and used except for the purpose of supplying the want of an examination in chief; and where a witness who has been examined de bene esse testifies differently on an examination in chief in open court, the deposition cannot be introduced to show the contradiction.58

Where the depositions taken on a bill to perpetuate testimony are required to be used in a trial at law, not under the control of the court, the depositions are published, and an officer of the chancery court attends and produces to the court of law the record of the whole proceedings, that the parties may make such use of them as they can.59

To obtain an order for the publication of deposition a notice of motion must be served, supported by an affidavit that they are necessary to be made use of in the complainant's behalf; or that the witnesses are dead, or are so infirm that they cannot attend and give evidence at the trial without great danger to life; or that they are, or will be at the time of the trial, out of the State.60

Where the deposition of one witness, or of any number of witnesses less than the whole number, is to be published, the officers of the court will be directed not to publish the depositions of the other witnesses.61

2. Rules of Publication.-The true rules of publication seems to be about as follows:

a. First Rule.-In the examination of wit

55 Webster v. Pawson, 2 Dick. 540; Price v. Bridgeman, 1 Dick. 144; Bradley v. Crackenthop, 1 Dick. 182; Gason v. Wordsworth, 2 Ves. Sr. 336, 337; Dew v. Clarke, 1 Sim. & S. 108; Gilb. For. Roman. 140.

56 Gilb. For. Roman. 141; 2 Story Eq. Jur. (11th Ed.)

§ 1516, note 2.

57 Teal v. Teal, 1 Sim. & S. 385. 58 Cann v. Cann, 1 P. Wms. 567.

59 Atty.-Gen. v. Ray, 2 Hare, 518.

601 Smith Ch. Pr. 336; 2 Barb. Ch. Pr. (2d Ed.) 144. 1 Smith Ch. Pr. 336; 2 Barb. Ch. Pr. (2d Ed.) 144.

nesses to a will per testes, none but subscribing witnesses being examined, and the question of the sanity or insanity of the testator being merely incidental, the depositions stand upon distinct grounds, and publication is made as a matter of course." C2

b. Second Rule.-In the ordinary examination in perpetuam publication is not allowable until after the death of the witnesses, because of the dangers incident thereto, there being no limit respecting the points as to which witnesses are examined.63

c. Third Rule.-In examination de bene esse the depositions will not be published, except by the consent of the parties, or on a strong case being made to the court justifying such publication.64

62 Harris v. Cotterell, 3 Meriv. 678, 680.
63 Barnsdale v. Lowe, 2 Russ. & Myl. 142.

64 Harris v. Cotterell, 3 Meriv. 680; Gilb. For. Roman. 140.

MINES AND MINERALS-GRANT OF MINERALS-RIGHT TO TAKE OUT SAME-IMPROVEMENTS NECESSARY — OCCUPATION OF SURFACE — EJECTMENT-EVIDENCEMINING CUSTOM - SUPPLY STORE-CONTRACT FOR PURCHASE OF LAND-FRAUD, STATUTE OF-ITS APPLICATION.

WILLIAMS V. GIBSON.

Supreme Court of Alabama, May 30, 1888.

1. Mines and Minerals-Grant of Minerals-Right to Tuke out the Same.-The express grant of all the minerals or mineral rights in a tract of land necessarily implies the right to work them by penetrating the surface of the soil for the minerals, and by using such means and instrumentalities for the purpose of mining and removing them as may be reasonable, in the light of modern inventions and of the improvements in the arts and sciences, but without injury to the support of the surface or superincumbent soil in its natural state. This right is not limited by a special grant of certain timber and water privileges, and of the right of way to and from the mines. These specifications strengthen rather than repel the implication of the right to occupy the surface.

2. Same-Improvements Necessary-Occupation of Surface. What improvements are reasonably necessary for the profitable and beneficial development of the mine, and how much of the surface of the land may be reasonably needed for this purpose, is a question of fact to be determined from the evidence by the jury.

3. Same-Ejectment-Evidence-Mining Custom.In ejectment for the possession of a tract of land from which minerals had been granted, evidence cannot be admitted to show how much of the surface was needed

for a purpose not incident to or implied in the grant; nor to show what extent of land others have occupied in the neighborhood in carrying on a mine, unless such practice has ripened into a custom.

-

4. Same-Evidence- Supply Store. It was not error in allowing evidence to be introduced showing that two stores were located near the mine, for the purpose of testing the necessity of occupying the land for such purpose.

5. Same-Evidence — Improvements.-In ejectment for possession of the surface of land used for mining purposes, evidence of the value of the improvements erected by the defendant around the mines was relevant as affecting the rental value.

6. Contract for Purchase of Land-Fraud, Statute of-Its Application.-A verbal contract of the purchase of the surface of land baving never been reduced to writing, nor accompanied by a part payment of any part of the purchase money, was void under the statute of frauds, and could not confer any rights on the alleged purchaser which would prejudice the rights of either party to the suit of ejectment for the land.

SOMERVILLE, J., delivered the opinion of the

court:

The present suit, which is one of ejectment under the statute, involves a controversy between the superjacent and subjacent owners of land upon which there is a coal mine, opened and in process of being worked by the defendant. The plaintiff, Gibson, is the owner of the surface, and the defendant, Williams, of the "coal and other minerals," with certain incidental and other rights, derived through various mesne conveyances from one Green B. Frost, the original owner in fee-simple of the premises.

In November,

1881, Frost conveyed to one Peters "all the coal and other minerals in, under, and upon" these lands, which are fully described in the deed; "and also all timber and water upon the same, necessary for the development, working, and mining of said coal and other minerals, and the preparation of the same for market, and the removal of the same; and also the right of way, and the right to build roads of any description over the same, necessary for the convenient transportation of said coal and other minerals from said land, and the conveying and transporting to and from said lands all materials and implements that may be of use in the mining and removal of said coal and other minerals, or in the preparation of the same for market." Subsequently, in August, 1884, Frost conveyed the same lands to one C. L. Frost and J. B. Reeves, reserving by exception from the land sold the mineral rights and other interest previously conveyed to Peters, using the same language of description adopted in the deed to him. The defendant is shown to have acquired by deed, through sundry mesne conveyances, the precise interest which Peters owned. This interest may be briefly described under three general heads: (1) A grant of all the coal and other minerals upon or in the land; (2) so much of the timber and water on the land as may be necessary: (a) for the development, working, and mining of

the coal and other minerals, and (b) for the preparation of the same for the market, and their removal from the soil and premises; (3) the right of way, by roads of any description, to and from the lands, so far as may be necessary for the transportation of all minerals mined, and of materials and implements needed in the business of mining and the preparation of the mineral for market.

The material question is what, if any, surface rights pass to the grantee under the first head, which is a grant of all the coal and other minerals upon and in the land. This is dependent in some measure upon the nature and characteristics of the thing granted. Minerals which are unsevered from the soil, or, as sometimes said, which are "in place," are parts of the freehold, and constitute landed property, They are capable of a possession distinct from that of the surface, and may form a separate corporeal hereditament, which is the subject of a distinct inheritance. The title of the soil, as such, including the surface, may be vested in one person; and that of the mines and minerals on it in another. It is only when the minerals are severed from the soil that they become personal chattels, and it is only where the right to dig or to mine them is not exclusive that it may be classed as an incorporeal right or easement merely in the nature of a license. Bainb. Mines (Amer. Ed.) *3, *261; Massot V. Moses, 3 S. C. 168, 16 Amer. Rep. 697; Caldwell v. Fulton, 31 Pa. St. 475; Melton v. Lambard, 51 Cal. 258; Ryckman v. Gillis, 57 N. Y. 68, 15 Amer. Rep. 464. The express grant of all the minerals or mineral rights in a tract of land is, by necessary implication, the grant also of the right to work them, unless the language of the grant itself repels this construction. This is the result of the familiar maxim that "when anything is granted, all the means of obtaining it, and all the fruits and effects of it. are also granted." 1 Shep. Touch. 89; 11 Coke, 52a. This involves the incidental right to penetrate the surface of the soil for the minerals, and to use such means and processes for the purpose of mining and removing them as may be reasonably necessary, in the light of modern inventions, and of the improvement in the arts and sciences, but without injury to the support for the surface or superincumbent soil in its natural state. Marvin v. Mining Co., 55 N. Y. 538, 14 Amer. Rep. 322; Wilms v. Jess, 94 Ill. 464, 34 Amer. Rep. 242; Bainb. Mines, *35, *62, *63. It is said by a standard English author, touching this subject: "The right to work mines is so inseparable from the grant of them that it has been expressly decided, not only that the right to enter and work mines is necessarily incident to the grant of mines, without any express authority for that purpose, but that this power cannot be restrained by a special power given in the affirmative, which would authorize more acts than would be implied by law, but which will in nowise exclude the full operation of the law." Id. (Amer. Ed.) 34, 35.

It is contended that this incidental right to work the mines on the land is limited by the special grant of certain timber and water privileges, and of the right of way to and from the mines, and that the mention of these privileges under the maxim, erpressio unius, est exclusio alterius, would rebut the grant of any right to occupy the surface of the soil for miners' houses, or other like purposes. It is often said that great caution is frequently necessary in the application of this maxim and of its twin legal aphorism of synonymous meaning, expressum facit cessare tacitum. Broom, Leg. Max. *506. It is obvious that without the right of surface occupation to some extent the grant in question is rendered nugatory. The principle is well settled that one who has the exclusive right to mine coal upon a tract of land has the right of possession, even as against the owner of the soil, so far as is reasonably necessary to carry on his mining operations. Turner v. Reynolds, 23 Pa. St. 199; Rogers v. Taylor, 38 Eng. Law & Eq. 574; Railroad Co. v. Railroad Co., 75 Ala. 524, 525. To construe away this right would be to construe away the grant itself, which cannot be enjoyed without it. It is our opinion that the enumeration of these special privileges was not intended to exclude another which was absolutely necessary to the very life of the grant itself. The right to use timber would not pass by implication. Bainb. Mines, *64. This was, therefore, the acquisition of a new and valuable right. The right of way and water privileges were also more comprehensive, possibly, than would have been yielded pacifically by mere construction. At any rate, these several grants themselves necessarily imply the right to occupy so much of the surface as might be needed to open and work the mines. There could be no use of timber, or water, or right of way, except in conuection with working the mines, and there could be no working of the mines without an occupation of the surface in the vicinity of the shafts, slopes, or other requisite openings. These specification strengthen, rather than repel, the implication in question. Marvin v. Mining Co., 14 Amer. Rep. 329, supra; Bainb. Mines, *34, *35. The owner of the minerals and mining rights must use his own so not unreasonably to injure his neighbor, the owner of the surface or soil; and it is, we repeat, now settled by the authorities quite universally that he must conduct his mining operations so as to leave a sufficient support for the surface. Carlin v. Chappell, 101 Pa. St. 348, 47 Amer. Rep. 722, and cases cited; Harris v. Ryding, 5 Mees. & W. 69; Rog. Mines, 455. In other words, the exclusive grantee of minerals in lands is entitled to dig and carry away so much of them as he can excavate from the soil without injure to the surface owned by the grantor; the mining right being servient to the surface to the extent of sufficient supports to sustain it in its natural state. Jones v. Wagner, 5 Amer. Rep. 385. But he is not liable for any incidental damages necessarily occasioned by the ordinary and careful operation of his

mines, not injurious to the surface, as, for example, the loss of springs by the owner of the soil (Coleman v. Chadwick, 80 Pa. St. 81, 21 Amer. Rep. 93); or the disturbance of the peace and comfort of the surface owner's dwelling by necessary blasting in the mines. Marvin v. Mining Co., 14 Amer. Rep. 322. These incidental rights of the minor, which are appurtenant to the grant of the mineral rights, are to be gauged by the necessities of the particular case, and therefore vary with changed conditions and circumstances. He may occupy so much of the surface, adopt such machinery and modes of mining, and establish such auxiliary appliances and instrumentalities, as are ordinarily used in such business, and may be reasonably necessary for the profitable and beneficial enjoyment of his property. But he is not limited, as we have already said, to such appliances as were in existence when the grant was made, but may keep pace with the progress of society and of modern invention. Bainb. Mines, 63, 64; Marvin v. Mining Co., supra. It has been accordingly held in England that a reservation of mines of coal (which is usually the same, in legal efiect, as a grant), with rights of way for transportation, involved the right to construct a modern railway, although this mode of transportation was unknown at the time of the grant. The ground of the decision seems to have been that, without use of the railway for shipment, the mines could not, under the evidence, have been worked beneficially or with reasonable profit.

We do not construe the language of the present grant or reservation, as it appears in the deeds of the plaintiff and those under whom he claims, to confer any right, by implication or otherwise, to use the surface of the land for the purpose of erecting coke ovens, designed for the conversion of coal into coke. His only right is to mine and transport coal in its marketable state. The contract clearly contemplated nothing else. Such is the usual construction placed upon similar grants; the principle being thus stated by Bainb. Mines, 63: "An owner of that kind cannot use the surface or any of the materials of the land for changing the character of the mineral to which he is entitled, as for converting coal into coke, clay into bricks, or for smelting the metalic ores, much less for any further purpose of manufacture."

The evidence shows that the defendant claimed the right to occupy as much as three acres of the surface of plaintiff's land as incident to his grant. Upon this area he had erected five two-story frame minors' houses, four log cabins for the occupancy of employees, an air shaft for conveying smoke from and ventilating the mines, a powder house for keeping powder used for blasting, a blacksmith shop, and a store house for furnishing the miners with supplies. Which of these improvements are reasonably necessary for the profitable and beneficial working of the mines is a question of fact to be determined from the