
    George P. Cahoon, App’lt, v. Theodore W. Bayard et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 7, 1890.)
    
    1. Mining rights—License.
    Defendants’ grantor gave plaintiff an agreement that he should “ have the right to enter upon the premises * * * with men, teams and tools' for the purpose of prospecting and examining for mines and minerals, and to dig, carry away and test such portiíms, etc., as he may think proper, * * * and if he, after making such examination and test, etc., shall he of opinion that they are worth working, he shall then have the right to go on and dig, carry away and cause to be worked such of the substances there found,” the net proceeds of sales to be divided as specified, and the agreement “ to bind the heirs and assigns of the respective parties.” Held, that this did not vest the fee in plaintiff _ and his assigns to exercise all the mining rights in the land where the mine was located, but was merely a license to prospect and operate mines under the arrangement for division of profits.
    3. Same.
    The right to an interest in the land would have been initiated upon the plaintiff’s becoming satisfied in his mind that the ores were worth working, and upon his then making the election to go on and operate the mining rights.
    3. Same—Election under must be exercised within a reasonable time.
    The owner was not bound to wait indefinitely for plaintiff to make up his mind about the advisability of going on with the business, and the lapse of ten years was far in excess of the period of time which he might fairly have been held bound to accord to plaintiff for exercising his election.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment entered upon the report of .a referee, dismissing plaintiff’s complaint.
    
      John 0. Keeler, for app’lt; G. A. Kellogg, for resp’ts.
    
      
       Affirming 16 N. Y. State Rep., 488.
    
   Gray, J.

The agreement under which the plaintiff in this action claims to have acquired some property rights and interests does not contain any words sufficient to constitute a deed of an estate in lands, or even importing the grant of such. Its language is, that he “shall have the right to enter upon the premises * * * with men, teams and tools for the purpose of prospecting and examining for mines and minerals, and to dig, carry .away and test such portions, etc., as he may think proper; * * * :and if he, after making such examination and test, etc., shall be of opinion that they are worth working, he shall then have the right to go on and dig, carry away and cause to be worked •such of the substances there found.” The agreement provided that the expenses were to be borne by the plaintiff, and the net proceeds of sales of product were to be divided in certain specified proportions. It was also provided that it should “ bind the heirs and. assigns of the respective parties.” The plaintiff’s contention is, that through this writing he and his heirs and assigns became vested in fee with the right to exercise all the mining rights in the piece of land where the mine in question was located. 'That, however, was not the legal effect of the instrument. Its ■plain intendment and its whole force were to give to the plaintiff a license, or authority, to enter upon the lands for the specific purpose of prospecting for minerals, and of extracting and testing the ores; and then it gave him the option, if he thought them worth working, of going on and operating the mine under an arrangement for the division of the profits. That was the value •and the benefit of this agreement to the plaintiff. Although in writing and purporting to bind the heirs and assigns of the parties, it amounted to nothing more than a mere license, or personal privilege, to the plaintiff, and conveyed no title or interest in the land. To obtain more, it was necessary for the plaintiff to take-the further step of declaring his election as to whether he would enter upon the business of regularly working the mine, or of doing acts equivalent to the declaration of that election.

The instrument is inartificially and crudely drawn; but the sense of it must be deemed to be to give a privilege to go upon the lands; not to vest an interest in them. As to the conveyance-of any right it was executory, and had the plaintiff formed tho opinion that the mining rights were worth possessing and working, he could, undoubtedly, have compelled the execution and delivery of proper instruments of grant, securing to him all requisite property rights. The right to an interest in the land would have been initiated upon the plaintiff’s becoming satisfied in his mind that the ores were worth working and upon his then making the election to go on and operate the mining rights. Prior to that, he was vested with no estate, or interest, in the property which was transmissible of transferable. The case of Mendenhall v. Klinck, 51 N. Y., 246, is sufficiently in point as an authority for that proposition.

For over twenty years between the making of this agreement and the commencement of this action, the plaintiff, as the referee finds, went upon the premises yearly and did some prospecting for ores; but he never did more, or all that the agreement called for. Meanwhile Spaulding, with whom the plaintiff had made the agreement,, conveyed away the land some ten years afterwards. We think the plaintiff failed to avail himself of the provisions of this agreement in any such wise as to evidence an intention to operate the mining rights. Nothing was done by him to indicate to Spaulding that he was going to take up the matter seriously; and he was legally bound to define his position towards the owner of the land as soon as it was fairly possible. But he does not appear to have removed the minerals, or to have tested them, and Iris yearly visits upon the property do not have the semblance of an honest purpose. If he honestly meant to initiate and acquire rights in Spaulding’s property, fair dealing required of him to take the requisite steps under his agreement within a reasonable time. No time being specified in the instrument, the law affixed to it the obligation of proceeding within what would be deemed a reasonable time. When the plaintiff waited for so long a period without definite action he thereby left it open to Spaulding to revoke the authority to him.

The agreement in question was not obligatory upon plaintiff to do anything, except in the event that he chose to acquire an interest in the mining property, and after he had had a fair opportunity to satisfy himself he was bound to act promptly, or the privileges might be revoked. This revocation of the authority contained in the agreement was, in fact, effected when Spaulding deeded away the land. He was not bound to wait indefinitely for the plaintiff to make up his mind about the advisability of going on with the business, and the lapse of over ten years was-far in excess of the period of time which he might fairly have been held bound to accord to plaintiff for exercising his election. Under the circumstances and in view of plaintiff’s conduct, Spaulding was entitled to believe and the court had the right to conclude that the plaintiff, having failed to do the acts mentioned in the agreement within so great a length of time, had ceased to have any further rights under the instrument in question.

The j udgment should be affirmed, with costs.

All concur.  