Mines, Sec. 9; 31 Pa. St., 475; 109 Pa. St., 583; 2 Lindley on Mines, Sec. 212; 16 How. Prac., 473; 13 Morrison Mining Reporter, 40; 28 Barb., 336; 14 Morrison Mining Reporter, 243; 55 N. Y. Court of App., 538.

STATEMENT OF FACTS.

In each of these cases the action was brought by the plaintiff to quiet title in him to an undivided one-fifth interest in the surface of a certain parcel of land situated in Bingham Canyon, Utah, and for partition thereof. By agreement the two causes were consolidated, their issues being identical, and the same decree was entered in each.

The plaintiff introduced in evidence a patent from the United States, dated July 30, 1881, and issued to the plaintiff, Thomas Gibbons, John Mc Guire, and the heirs of William Gibbons, for the Mc Guire and Company's placer mining claim. The premises described in the complaint were included in the patent, and the patent conveyed to the plaintiff an undivided one-fifth thereof.

The defendants introduced in evidence an agreement dated October 17, 1877, in which the plaintiff agreed to convey, by quitclaim deed, to John Mc Guire, Alexander Maberry, Frank Webb, Thomas Gibbons, and William Gibbons, his one-fifth interest in a certain drain ditch, for $200 cash in hand paid, and for the further sum of $5,000 to be paid to him, as will appear from an extract of the agreement which reads as follows: "And the said parties of the second part in consideration of the above described placer mining property and drain are to take, have, and receive into their possession, in the date of this lien first above written, quiet and peaceable possession of said interest, and further agree to pay to said party of the first part the sum of five thousand dollars ($5,000) to be paid only from the proceeds of ore, gold dust, or

minerals taken therefrom, upon the following conditions, to wit:

The first payments to be made from said source is the payments of all labor therein performed at the rate of four dollars to the man for each day's labor thus performed.

Second, to pay all the just debts now owing by said company to different parties.

Third and last, to pay said sum of five thousand dollars from the proceeds of said mine after making the above payments as mentioned.

And it is further understood that the said party of the first part shall have the right at all times, himself or his legal representatives, to visit and inspect the said mine and be present and examine at any or all washings or cleaning up of the gold dust, it being further understood that the gold dust thus taken out for said payments is from the entire mine; it being also understood that said parties of the second part can not sell or quit this interest until this agreement is fully satisfied, or by consent of said party or his legal representative."

The evidence shows that John Mc Guire, Frank Webb, Thomas and William Gibbons were dead before this suit was brought; that A. Maberry had conveyed his interest in the property; that none of the parties to the contract, except the plaintiff, have now any interest in the land, and there is nothing to show that any assignment of the contract was made. The court found that the plaintiff is the owner of one-fifth interest in the land, as tenant in common with the owners of the balance, and entered a decree to that effect. It also decreed that the land be partitioned. Thereupon the defendants appealed.

BARTCH, C. J., after stating the case as above, delivered the opinion of the court.

The appellants contend that the court erred in holding that the contract, introduced in evidence by the defense, does not constitute a covenant running with the land.

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 Mc 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, $5,000 out of the ore to be mined, in addition to the $200 cash paid at the time of making the contract. It is true Mc 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 Maberry were parties to the agreement, and Maberry, 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. contract was simply an option to purchase, by its terms not assignable, and was not in the nature of a covenant

The

running with the land. defendants in this case.

It, therefore, can not avail the
There was conveyed no absolute

title to or interest in the land, and there was no privity of estate in the land between Smith and Mc Guire and associates; nor was any created by the contract.

"When one who makes 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 Case, 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.

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

pel a conveyance. (Bispham's Equity, Sec. 365.) When the purchaser is in a position to compel a conveyance by a bill in chancery, he then holds the equitable title. Before that he only has a contract for a title when he performs his part of the agreement. Chappell v. Mc Knight 108 Ill., 570; Warvelle on Vendors, p. 187 Sec. 2; Sutherland v. Parkins, 75 Ill., 338.

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 these 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 Real Property (4th ed.), 17; 1 Lindley 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; 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.

MINER, J., and BASKIN, J. concur.