
    Cahoon v. Bayaud et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    May 17, 1888.)
    Mines and Mining—Grant of Right to Prospect for Ore—Reasonable Time.
    The owner of a tract of land granted to plaintiff the right to enter upon the land for the purpose of prospecting for mines and minerals; the agreement providing that if, after examination and test, plaintiff should be of opinion that the mines were worth working, he should have the right to go on with such work, the net proceeds of the mineral obtained to be divided between plaintiff and the owner. Held, that plaintiff was bound to assert his rights, under the contract, within a reasonable time, by performing the acts contemplated thereby, and that a delay of SO years in making such assertion barred his rights.
    Appeal from judgment on report of Joseph MoYaughton, Referee.
    This is an action by George P. Cahoon against T. W. Bayaud, G. H. Bellinger, Charles H. Austin, and others to eject defendants from a mine of iron pyrites, to have the title adjudged to be in plaintiff, and to cancel certain outstanding leases thereon. There was a judgment for defendants, and plaintiff appeals. The agreement of June 13, 1864, referred to in the opinion, grants plaintiff the right to enter upon the premises in question for the purpose of prospecting for mines and minerals; and provides that if, after examination and test, plaintiff should be of opinion that the mines were worth working, he should have the right to go on with such work, the net proceeds of the minerals obtained to be divided between plaintiff and Spaulding, the other party to the agreement, in a stated ratio.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      John C. Keeler, for appellant. O. A. Kellogg, for respondents.
   Per Curiam.

We are entirely satisfied with the result reached by the learned referee in this action, and, in the main, with the reasoning of the able opinion submitted by him in deciding the same. We, however, prefer to place our decision, in affirming the judgment, upon the ground that the plaintiff was bound to assert, within a reasonable time, whatever right he claimed to have acquired under the agreement of June 13,1864; and having practically failed to make any such assertion, by acts contemplated by such agreement, within a period of 20 years, he should be held to have abandoned all such right, and to have ceased to have any claim to the possession of the premises, or any interest therein; especially so, as.the premises have been conveyed to other parties, and Erastus Spaulding, with whom he contracted, is dead. The judgment and the order granting an additional allowance should be affirmed, with costs.  