1. Mining license: ejectment. I. Chapter 144 of the Revision provides, that “ any person havingamlicisubsisting interestm real property, and a right to the immediate possession thereof, may recover the same by action.” § 3569. Assuming, for the present, that the plaintiffs’ rights, as the parol licensees of Bonson, the owner, had never been forfeited or terminated, the first question is, can they assert those rights in this form of action ? Let us suppose a simple and uncomplicated case, and one which, from the testimony, we infer to be of not unfrequent occurrence: Mr. Bonson, as the owner of a large quantity of mineral lands, is applied to for the right to mine upon them. He replies: “I will give you the right you desire, you paying me as rent, one-sixth of all mineral discovered.” Nothing is said as to the duration of the right, or the mode of termination. The miner, upon the faith of this permission *114takes possession, expends bis labor and money, in sinking shafts, running drifts, purchasing tools, providing machinery, &c. Laying out of view any rights derivable 'from custom, and applying to the case (in the absence of special contract regulating the rights and duties of the respective parties) the ordinary rules of the law, can the owner instantaneously and absolutely revoke the license, so as, from that moment forward, treat the miner as a trespasser or intruder ? Most clearly not. It would be a shame and reproach to the law, if this could be done. The general principles of the law are against it. (Winter v. Brockwell, 8 East, 308; Wickersham v. Orr, 9 Iowa, 253, 260, and cases there cited; Rerick v. Kern, 2 Am. Lead. Cases, and the valuable note of the learned editors, and authorities there collected, as to executed licenses.) And, in the absence of an established custom, or usage, or contract, giving larger or other rights,such a miner being in possession of real estate, with the assent of the oioner, would, by statute, be a tenant at will (Eev., § 2216), and entitled to the rights of such a tenant, in regard to notice to .quit.
Considering the importance of the lead mining interests of Iowa, that the rights of owners and miners are wholly unregulated by statute, it is surprising that so little litigation growing out of this great interest, has ever reached this court. And yet, in almost the only case ever before it at all similar to the present, and which counsel seem to have overlooked, the above principles are directly asserted and enforced. Bush v. Sullivan, 3 G. Greene, 344. In that case the defendants were in possession of the plaintiff’s mineral land, by virtue of an unlimited parol license, and had made large expenditures in improving the ground, under an arrangement that the plaintiff was to have one-fourth of the mineral raised, as his rent, and the plaintiff brought ejectment. There was no question of rights under, a custom in the case; and the court held that the owner *115could not maintain bis action without refunding the expenditure, or giving the notice to which a tenant at will is entitled. While some of the observations arguendo in that case may admit of question, the decision itself, under the facts, was just and proper. If the miner has, under such circumstances, such rights as that he cannot be ejected by the owner, it seems to us to follow that he may, by virtue thereof, assert his right to possession against the owner, and his subsequent lessee or licensee with notice, if they unjustly interfere with it. In the case at bar, the following, with the exception of an introductory statement, constituted the entire charge of the court to the jury:
2d. “ To sustain this action on the part of the plaintiffs, all the evidence introduced by them tends to prove that the only interest of the plaintiffs in the premises claimed, consists in a license to work and mine on the premises described in the petition, under a parol license from Richard Bonson, the owner in fee of the premises, which right so tending to be proved, is a simple right to enter upon the premises, under such license, and to dig and search for lead mineral therein, and for no other purpose, and without any property in the minerals, if any, on the premises in the plaintiffs until discovered by them.”
3d. “ In my opinion, this does not tend to prove such an interest in real estate, in the premises, in the plaintiffs, as entitles them to maintain this action and recover therein. And there being no evidence before you of such a title and interest in the plaintiffs, in the premises, as will entitle them to recover, the defendants are entitled to your verdict.”
2. - Forfeiture, etc. Whether the interest of the plaintiffs had ever been forfeited, terminated or abandoned, was one of fact for the jitry be determined by them from the evidence under proper instructions. This question, the plaintiffs, by their instructions (all of which were refused), sought to get before the'jury. And whatever may be our *116opinion upon the evidence, as it now stands, as to tbe abandonment .of their right by the plaintiffs, we are clear that they had the right, under our statute and practice, to have this question distinctly submitted to, and decided by, the jury. In considering, therefore, whether the case ought to be reversed for error in the above charge, we must assume that the plaintiffs took possession with the consent of Bonson, expended money and labor on the faith of such consent, and that their right had never been forfeited or abandoned. On this assumption, it is our opinion that they would have such an interest in real estate as would entitle them to bring an action in this form to recover it, and thus be restored to their crevice or diggings. Such being our opinion, upon the general principles of justice and law, let us now take a brief view of the authorities to see whether this opinion is in harmony with adjudged cases. The general rule is, that ejectment will lie for anything of which the sheriff can deliver .possession. Therefore, it may be maintained for corporeal, but not for incorporeal heredita-ments. Adams on Eject., ch. 2, pp. 18, 20, and cases. As applicable to miners and mining interests, this distinction results from the above rule: a privilege to dig, not amounting to an actual demise of the mines, is an incorporeal here-ditament, and, consequently, ejectment will not lie. Doe, ex dem. Hanley, v. Wood, 2 B. & Ald., 724; Lord Mountjoye's Case, 4 Leon., 147; S. C., Godbolt, 17; Cheatam v. Williamson, 4 East, 469; Crocker v. Fothergill, 2 B. & Ald., 661, judgment of Holroyd, J.; and see Wilkinson v. Proud, 11 M. & W., 33; and Stoughton v. Leigh, 1 Taunt., 402. And especially under the above authorities is this so, where such license is not exclusive and does not oust the grantor of his rights.
But a distinction, in many cases, is drawn between an unopened and an open mine. And the books abound with cases, from a very early period, which decido that *117ejectment will lie for mines, though another has the surface. We refer to the following: Comyn v. Kinyto, Cro. Jac., 150. In Whithingham v. Andrews, 1 Salk., 255, “it was not questioned (citing Cro. Jac., 150) that ejectment lies of a coal mine;” S. C., Carth., 277, S. P.; Comyn v. Wheatley, Noy, 121; and see Lewis v. Branthwaite, 2 B. & Ald., 437; Bainb. on Mines, 493, 494; Collier on Mines, 18 (top); Adams on Eject., 20 (marg.); Doe, ex dem. Hanley, v. Wood, 2 B. & Ald., 724, and cases cited supra. Many of these cases, while holding that ejectment lies for an open mine, throw no light upon the question as to the interest in the plaintiff necessary to maintain the action. On this subject, Mr. Adams is of opinion (Eject., page 20, marg.) that “ when a grant of mines is so worded as not to operate as an actual demise, but only license to dig, search for, and take metals and mineral within a certain district, it seems that a party claiming, under such a grant, and zoho shall*open and work, and he in actual possession of, any mines, may, if ousted, maintain ejectment with respect to them; but he cannot maintain ejectment, either in respect of mines within the district ” (i. e., lying within the bounds of his privilege), “ which he has not opened, or which, having opened, he has abandoned.” See, also, Bainb. on Mines, 494; Collier on Mines, 18. We are satisfied that this rule is a reasonable one, and we adopt it as being the law. The court’s charge, it must be observed, omits any allusion to the material facts of possession and expenditures of money and labor by the plaintiffs, under the license from Bonson. The questions in the case should have been submitted to the jury, thus: “ Were the plaintiffs’ rights forfeited or abandoned ? If so, that is an end of the case; if not, that is, if those rights were still subsisting and had not been determined by abandonment or forfeiture, then, as they had taken actual possession and expended money, they would ‘be entitled to be *118restored, to the possession of their mining right. What they could recover as damages or rents and profits, with respect to the mineral raised by the defendants, has not been discussed by counsel, and we pass the question by as not being necessarily before us. See observations of Abbott, Ch. J., pp., 738, 739, in the above cited case of Doe, ex dem. Hanley, v. Wood. Our conclusion, then, on this part of the case, is this: Omitting any allusion to the charge as trenching upon the province of the jury, it was, agreeably to the above views and authorities, correct as to the rights of a bare licensee, without actual possession, or the right to actual possession. But the error consists in taking from the jury, against the objection of the plaintiffs, the question whether the plaintiffs had abandoned, or lost, or forfeited their actual possession, or right to actual possession. If not, the jury should have been charged that they had such an interest as would entitle them to maintain ejectment. *
3 and 4 - Custom of miners. II. We also think the court below held too tight a rein upon the plaintiffs in refusing to allow them to show the general custom of miners. The plaintiffs offered to show what, by the general custom of miners, was the effect upon the miners’ right, license or claim, as to forfeiture by reason of a failure to work the ground, and to show that sickness or bad air would, for the time being, under the custom of miners, excuse continuous working and prevent the forfeiture of the right which would otherwise take place.
This testimony seems to have been rejected on the ground that there was a “ local or private custom in regard to this particular land.” This refers to the testimony of Mr. Bonson, the owner, who stated: “ This rule is an uniform rule with me, that a tenant loses his right when he ceases to work.” “When I know damps to exist, I do not resume the groiind.” “ If a man was sick and unable to *119work for two weeks, and I knew it, I would not resume the ground.” “'My rules have never been written or published, I keep them only in my mind.” “ These are my rules as laid down in the neighborhood.” “ If a person comes to me to rent ground, I ask him if he knows my rules, and he says ‘yes,’ I say ‘go to work.’ If he says he does not, I tell him my rules.” “I do not remember as 1 ever talked with Mr. Brugh (the plaintiff) about any of my rules.” Mr. Brugh testified that he “ did not know any of Bonson’s rules, except his right to a preference of mineral obtained on his premises.” Under these circumstances the jury should, in substance, have’been directed:
1st. That Bonson’s private rules would not affect the plaintiffs’ rights, unless they had knowledge thereof; or unless they held, as the assignees of persons who had such knowledge, and whether they or their assignors had such knowledge, would be for the jury to determine from the evidence. If the plaintiffs had such knowledge, these rules would constitute part of the contract, and evidence of any general custom inconsistent with, or different from them, would be disregarded.
But, 2d. If the plaintiffs had no knowledge of Bonson’s rules, and if there was no contract with respect to the assignment or duration, forfeiture or mode of termination of the plaintiffs’ rights, these matters would depend upon a general custom in these respects, and upon the law. The custom (which is evidenced and proved by usage. 2 Parsons on Contr., 55-56 and notes) must be established, and not casual (though no particular length of time is necessary to establish it), uniform, and not fluctuating (when contracts are not made to the contrary), and general, that is, general among mineral land owners and miners. The onus to establish such a custom is on the plaintiff. If, for example, there is an established custom generally understood and received, that sickness or bad air, when nothing *120is said to tbe contrary, shall excuse, while it lasts, actual working, then a license given in a place where such a custom exists, would be presumed to have been made with reference to it; and such a custom would be considered as being tacitly annexed to and as forming a part of the contract between the parties. The same observations will apply as to the right of the licensee to assign and sell his privilege. In the absence of any contract or established custom, the right of a licensee to dig, paying a part as rent, would, by the law, be considered personal, for otherwise a license to A. would practically be one to B., and the owner’s rights might be seriously affected. But a general custom recognizing the assignability of these mining rights would probably not be so unreasonable as to prevent its being upheld.
3d.- Where there is no special contract, and no general custom, the general rules of law govern the rights of the parties; and these, so far as they arise on the record, have already been sufficiently adverted to. The novelty and importance of the case clearly justify the space it occupies. It has been found impossible to treat it with greater brevity, and yet to treat it with clearness and precision. For the reasons above indicated, the judgment of the District Court is reversed, and the cause remanded for a new trial.
Reversed.