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Full text of "The mining reports : a series containing the cases on the law of mines found in the American and English reports, arranged alphabetically by subjects, with notes and references"



CORNELL' University Law Library 

The Moajc Collection 

PURCHASED FOR 

The School of Law of Cornell University 

And Presented February 14, 1893 

IN nenoRY of 

JUDGE DOUGLASS BOARDMAN 

PrRST DEAN OF THE SCHOOL 

By bis Wife and Daugliter 
A. M. BOARDMAN and ELLEN D. WILLIAMS 



Cornell University Library 
KF 1810.M88 1883 
'■'The mining reports :a series containi^^^ 





Cornell University 
Library 



The original of tiiis bool< is in 
tine Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31 92401 91 99508 



THE 



MINING REPORTS. 



A SERIES CONTAINING THE CASES ON THE 

LAW OF MINES 

FOUND IN THE AMERICAN AND ENGLISH REPORTS, ARRANGED 
ALPHABETICALLY BY SUBJECTS, 

WITH EOTES ASD EEFEEElfrOES.. 



By R. S. MORRISON, 

01' IHE COLOBACO BAB., 



VOL. YIII. 



ch:cago: 
CALLAGHAN & COMPANY. 

1885. 



Entered according to Act of Congress, in the year 1885, 

By Callaghaw & Company. 

In the office of the Librarian of Congress, at Washington. 



Stereotyped, Printed and Bound 

by the 
Chicago Legal News Company. 



CASES REPORTED IN VOLUME VIII. 



Alderson v. Ennor, 536. 
Ardesco Oil Co. v. North Am. 

Oil Co., 589. 
Arnold v. Foot, 83. 
Astry V. Ballard, 316, 

Barker v. Dale, 597. 
Bell V. Truit, 649. 
Bennett V. Griffiths, 21.-V' 
Bennitt v. Whitehouse, 17. 
Birmingham Canal Co. v. Lloyd, 

166. 
Blakesley v. Whieldon, 8. 
Brainerd v. Arnold, 478. 
Burr V. Spencer, 450. 
Bute, Marquis of, v. Thompson, 

371. 

Cate V. Sanford, 124 
Clark V. Babcock, 599. 
Clegg V. Edinondson, 180. 
Clegg V. Rowland, 530. 
Clifton V, Walmesley, 333, 
Coffman v. Bobbins, 131. 
Com. V. Conyngham, 33. 
Copper M. Co. V. Beach, 326. 
Cox V. Bishop, 455. 
Crawford v. Wick, 541. 
Creighton v, Evans, 133, 

Deidesheimer, Ex parte, 41, 
Doe dem. Patton v, Axley, 473. 



Emery v. Owings, 378, 
Ernest v. Vivian, 205. 
Eureka M. Co. v. Richmond M. 

Co., 144. 
Evans' Appeal, 355, 

Farnum v. Piatt, 330. 
Fisher v, i\^iiliken, 395, 
Fleeson v. Savage M. Co., 153. 
Foley V. Addenbrooke, 349. 

Gowan V. Christie, 688. 
Griffin V. Fellows, 657, 

Hargrave v. King, 408. 
Harlan y, I.ehigh Coal Co., 496. 
Harlow V. Lake Superior Co, 

385. 
Hodgson V. Moulson, 511. 

Jegon V. Vivian, 638. 
Jones V. Shears, 333. 

Kier v. Peterson, 499. 
Kuhn's Appeal, 255, 

Lehigh Coal Co, v, Harlan 

433, 
Lewis V. Marsh, 14. 
Lord Rokeby v. Elliot, 651. 
Lycoming Ins, Co. v. Schwenk, 

53. 



(m) 



IV 



Cases Eepoeted. 



Lykens Valley Co. v. Dock, 
570. 

Manning v. Frazier, 307. 
Marquis of Bute v. Thompson) 

371. 
Massot V. Moses, 607. 
Moyers v. Tiley, 474. 
Munroe v. Ivie, 127. 

Owings V. Emery, 387. 

Fatten V. Axley, 472. 
Perry v. Attwood, 440. 
Phillips V. Jones, 344. 
Powell V. Burroughs, 531. 
Prendergast v. Turton, 167. 
Pretty v. Solly, 301. 

Ridgway v. Sneyd, 414. 
Rigney y. Small, 217. 
Rokeby v. Elliot, 651. 
Rolleston V. New, 464. 
Rule V. Jewell, 291. 

Senhouse v. Harris, 507. 



Sharp V. Wright, 202. 
Shaw V. Stenton, 488. 
Sheldon v. Davey, 581. 
Smith V. Morris, 317. 

Talbot V. Ford, 347. 

Thomas Iron Co. v. Allentown 

M. Co., 36. 
Thorp V. Woolman, 87. 
Trafton v. Nougues, 138. 

Union Mill Co. v. Dangberg, 

113. 
Union Mill Co. v. Ferris, 90. 

Walker v. Fletcher, 1. 
Walker v. Tucker, 672. 
Watson V. O'Hern, 333. 
Watts' Appeal, 222. 
Weston V. Alden, 82. 
Whaley v. Brancker, 29. 
Whalley v. Ramage, 53. 
Wheatley v. Westminster 
Brymbo C. Co., 553. 

Yunker v. Nichols, 64. 



TABLE OF CASES CITED IN VOLUME VIIL 



THOSE CASES PRINTED IN ITALICS ARE TO BE FOUND REPORTED 
IN THE SERIES. 



Abinger ». Ashton, 628. 6 M. R. 1. 
Acton V. Blundell, 501. Water. 
Adam v. Briggs Iron Co., 610. 

Sbvbbanob. 
Adshead v. Needham, 20. 
Aitcheson v. Pair, 193. 
Albert Co. v. Western Soc, 308. 
Allen V. BarkUy, 526. Tenant isr 

Com. 
Amerisooggin Bridge v. Bragg, 72. 
Andrews v. Paradise, 492, 493. 
Anonymous, 167, 558. 
Arkwright v. Colt, 468, 459, 
Armstrong V. Kattenhom, 548. 
Arnold v. Foot, 106. 8 M. R. 83. ' 
Arnot V. Bisooe, 176. 
Ashurst's App. 246, 253, 254, 255, 

278, 284, 285. 
Astley V. Weldon, 345. 
Astry V. Ballard, 671. 8 M. R. 316. 
Atchison v. Peterson, 128, 137. 1 

M. R. 583. 
Atlas Co. V. Johnston, 165. 1 M. 

R. 388. 
Attorney General v. Chambers, 18, 

25, 30, 51. 
Attorney General v. Parker, 669. 
Attorney General v. Sheffield Gas 

Consumer's Co., 192. 
Aftwood V. Fricot, 123. 2 M. R. 

305. 
Ayerst v. Jenldns, 277. 



Aylet V. Dodd, 320. 

Babcock v. Lisk, 310. 
Backenstoss v. Stabler, 577. 
Bank of tJ. S. v. Douglas, 596. 
Bank of U. S. v. Macalester, 594. 
Banta v. Savage, 137. 7 M. R. 113. 
Barnes v. Ontario, 246. 
Barnes v. Sabron, 128, 136. 4 M. R. 

673. 
Barney v. Sutton, 665. 
Barry v. Mer. Exch. Co., 246. 
Baseyv. Gallagher, 90, 128, 137. 1 

M. R. 683. 
Bealey v. Shaw, 86. 
Beatty v. Gregory, 73. 9M. R. 234. 
Beauclerk v. Ashburnham, 329. 
Beaufort v. Morris, 637. 
Beaumont v.Boultbee,i^l. IM.R. 

263. 
Beaver V. Beaver, 596. 
Bedford R. S. Co. v. Bowser, 245. 
Beecher v. Dacey, 541. 
Bell V. Truit, 597. 8 M. R. 649. 
Benjamin v. McConnel, 677. 
Bennett v. Morris, 672. 
Bennett Y. North B. & M.Ins. Co. 6^. 
Bennitt v. Whitehouse., 29, 39. 8 M. 

R. 17. 
Bingham v. Bingham, 418. 
Birmingham Canal Co. v. Lloyd, 

558, 568. 8 M. R. 166. 



(J) 



VI 



Cases Cited. 



BIrmingfaam Ins. Co. v. Kroegher, 

63. 
Bishop of Winchester T. Knight, 211. 
Blacktcell r. Atkinson, 315. Wab- 

KAIfTT. 

'Blakesley v. Whieldon, 15. 8 il. 

R. 8. 
BlaisdeU t. Stephens, 137. 
Blanchard v. Baker, 106. 
Blanchard t. Spragne, 99. 
Bliss V. Kennedy, 96. 
Blisset V. Daniel, 189, 191. 
Bolton T. PoweU, 291. 
Bond V. Hopkins, 193, 291. 
Bonham's Case, 304. 
Booth y. Chapman, 571. 
Bowman t. Wathen, 291. 
Boynton t. Champlin, 308. 
Brace t. Tale, 109. 
Braddee v. Brownfield, 33. 
Brady t. Meyer, 246. 
Brainerd r. Arnold, 334, 450. 8 M. 

R. 478. 
Brawley v. Catron, 309. 
Breit t. Teaton, 285. 
Bridges r. Hitchcock, 329. 
Briles v. Pace, 408. 
Brooke t. Hewitt, 329. 
Broughton t. Conway, 498. 
Brown t. Best, 86. 
Brown v. Commissioners, 246. 
Brown v. Connty of Bnena Vista, 291 . 
Brown r. DeTastet, 189. 
Brown t. Gitman, 308. 
Brown t. Qnilter, 406. 
Brown t. Tighe, 329. 
Buckholler v. Edwards, 77. 
Burdon .v Barkus, 409. Pabtnek. 
Burr r. Spencer, 485. 8 M. R. 450. 
Bute T. Stuart, 51. 
Bute V. Thompson, 688. 8 M. R. 

371. 
Butte Cannl & D. Co. r. Vaughn, 

128,651. 4M. R. 552. 

CJade V. Brownlee, 308. 

CaldireU v. Fulton, 309, 610, 612, 

617, 618, 619, 621, 622, 623, 626* 

627. 3M. R.238. 



Calhoun's Est., 245. 
Callander v. Howard, 448, 449. 
Camden v. ilorton, 406. 
Campan v. Shene, 291. 
Capers v. Wilson. 80. 
Carhart t. Montana, 315. 
Oarkhuff t. Anderson, 665. 
Carman v. Noble. 596. 
Gameal v. Banks, 483. 
Oarpen t. HaU, 530. 
Carr t. Benson, 496. 
Carroll t. Safford, 118. 
Cary r. Daniels, 610. 
Castner v. Wallrod, 291. 
Chambers r. Harrington, 138, 152. 
Chesterman t. Mann, 191. 
Chelham r. Williamson, 609, 617, 

624. 9 M. R. 176. 
Chicago Oil Co. r. V. S. Pet. Co., 

597. Eeceiteb. 
Chicago R. I. &P. E. R. Co. v. Ken- 
nedy, 310. 
Church v. Brown. 12. 
Churchill r. Cieiise. 304. 
Claflin V. Carpenter, 308. 
Qanrickard v. Sidney, 498. 
aark T. Roj^, 309. 
Qark t. Way, 309, 609, 614,617,618- 
Clarke t. Hart, 205, 292, 293, 294, 

295, 298. 
Clatering r. Clareriitg. 558. Tks. 

FOB Lepe. 
Clavering v. Wesitey, 458, 459. 
Clegg r. Edmondson, 211. 223, 245. 

253, 291. 8 M. R. ISO. 
Gegg T. Pishwick, 188, 189, 191, 

192. 
Clegg r. Bowland, 672. 8 M. R. 

520. 
Clement r. Tmingman, 610, 619, 622, 

627. 5 M. R. 230. 
Clemeuts r. Hall, 293. 
Close T. Wilberforce, 458, 459.' 
Coleman v. Eastern Co. 244. 
Coleman v. Hudson R. B. Co., 147. 
CoUinge v. Collinge, 188, 197. 
Collins r. Case, 408. 1 M. E. 91. 
Commonwealth t. Councils of Pitts 

249. 



Gases Cited. 



VII 



Commonwealth v. Dupuy, 58. 


Dinwiddie v. Bailey, 309. 




■Commonwealth v. Erie & N. E. R. 


Dixon V. Campbell, 693. 




S. Co., 245. 


Doe V. Morse, 581, 657. 




Commonwealth v. Montrose, 246. 


Doe V. Wood, 609, 617, 618, 


619, 


Commonwealth t. Perkins, 246. 


622, 624, 625. 9 M. R. 182. 




Commonwealth v. Pittsburgh, 246 


Doolittle V. Jenkin.s, 308. 




Commonwealth v. Slifer, 246. 


Dormer v. Packhurst, 671. 




Conover v. Warring, 308. 


Douglas V. Shumway, 308. 




Cook V. Collingridge, 189. 


Dowling V. Mill, 329. 




Cook T. Sterns, 497. 


Dugdale v. Robertson, 51, 511. 


3uR- 


Cooke V. Booth, 325, 326, 329. 


FACE Support. 




Cooper V. Hubbook, 245. 


Dundas App., 245. 




Corbet T. Norcron, 75. 


Dundas v. Muhlenberg, 526. Tres- 


Cordova v. Hood, 310. 


pass. 




Coming v. Troy, 123. 


Dunwoodie v. Reed, 667, 672. 




Courtney v.' Turner, 136. 


Dyer v. Martin, 310. 




Crabtree v. Ha,ganbaugh, 677. 






Crane v. Winsor, 137. Nttisancb. 


Earl of Jersey V. Briton Co., 308 


. 


Crawshay v. Maule, 193. Partner. 


East India Co. v. Kynaston, 18, 


19, 


Crocket v. Lee, 483. 


27. 




Crompton V. Lea, 36. 6 M. R. 179. 


East India Co. v. Vincent, 175. 




Crooker v. Bragg, 86. 


Edmiston v. Preston, 693. 




Crosby v. Bradley, 610. 


Edwards v. Lewis, 189, 191. 




Crouch V. Puryear, 816. Waste. 


Eldridge v. Wright, 144. 7 M 


. R. 


Crouch V. Smith, 570. 


418. 




Cruiokshank v. McVickar, 211. 


EUerbrock v. Plynn, 663. 




Cumberland C. & I. Co. v. Hoffman 


EUiott v. Pitchburg R. R. Co., 106. 


S. C. Co., 151. 


Embrey V. Owen, 105, 119, 123. 




Curtis T. Leavitt, 246. 


Emily and Caroline, The 49. 






Ennor v. Barwell, 28, 30, 40 


51. 


Daily v. Beck, 498. 


Plead. & Prac. 




Dakin t. WiUiams, 541. 


Ernest v. Vivian, 634, 648. 8M. R. 


Dana v. Bank of U. S., 597. 


205. 




Daniels v. Equitable Co., 63. 


Eureka Con. M. Co. v. Richmond 


Darcy v. Askwith, 671. 


M.Co.,l51. lOM.R. — . 




Davis V. Gale, 128. 4 M. R. 604. 


Evans v. Commercial M. I. Co. 


63. 


Davis V. Meetingr House, 246. 


Evans v. Merriweather, 108. 




Davis V. West, 317. 


Eyster's Appeal, 245. 




Dean v. Thtmife, 211. 1 M. R. 77. 






DeBolle v. Pernia^ Ins. Co., 595. 


Farley V. Spring VaUey Co., 91, 


137. 


DeForest v. Bryne, 678. 


Farr v. Newman, 74. 




Densmore Co. v. Densmore, 275. 3 


Pay V. Noble, 246. 




M. R. 569. 


Peaiherstonehaugh v. Fenwick, 


189, 


Derry v. Boss, 136. 1 M. R. 1. 


190, 191, 192. 




DesUver's Est., 672. 


Felz V. Los Angeles, 137. 




Dick V. CaldweU, 136. 


Ferrea v. Knipe, 123. 




Dickenson v. Grand Junction, 558. 


Ferriday v. Selser, 158. 




Dickenson v. Valpy, 610. 


Ffooks V. Ry. Co., 245. 




Dickenson v. Whitney, 530. 


Findlay v. Smith, 503. Salines. 



VIII 



Cases Cited. 



Fitzgibbon v. Seaailon, 189, 195. 

Flight V. Bentley, 458, 459, 460, 469. 

FogusT. Ward, 464, 657. 5M. R. 1. 

Foley V. Addenhroohe, 395, 639, 651. 
8 M. R. 349. 

Folkingham v. Croft, 12. 

Forsyth „. Wells, 577, 578. Tro- 
ver. 

Foster V. Browning, 70. 

Foster v. N. H. & N. Co., 70. 

420 Mining Co. v. Bullion Co., 131, 
139. Patent. 

Fowle V. Welsh, 493. 

Frank Co. v. iMrimer Co., 138, 152. 
1 M. R. 150. 

Freeman v. People, 158. 

Fuller V. Meb-oee, 246. 

Funhv.naldeman,m^,Wl,&l8. 7 
M. R. 203. 

FurnivaJ v. Crew, 326, 329. 

Galloway v. Mayor, 147. 

Grarden Valley M. Co. v. McLister, 
293. 

Gartside v. Outley, 333. Mort- 
gage. 

Gaylord v. Couch, 483. 

Gelberson v. Miller, 165. 

George v. Morgan, 672 

Gibson v. Chouteau, 93, 118. 

Gibson v. Minet, 498. 

Gilbert v. Johnson, 106. 

GiUett T. Peppercome, 189. 

Gilmore v. Ontario Co., 553. 

Gloninger v. Franklin Coal Co., 
609, 620. 9 M. R. 273. 

Goddard v. Ordway, 149. 

Golden Co. v. Bright, 137. 

Gooch V. Sullivan, 64. 5 M. R. 14. 

Gordon v. Preston, 246, 249. 

Gonrlay v. Duke of Somerset, 348. 

Gowan v. Christie, 673. 8 M. R. 
688. 

Graham v. Birkenhead Ry. Co., 245. 

Gravenstine's App., 247. 

Graves v. Hodges, 620. 

Gt. W. Ry. Co. V. Oxford, 246, 253. 

Greber v. Kleckner, 671. 

Green v. Roberts, 438. 



Green v. SparroK, 560. Rents. 
Greenslade v. HalKday, 82. 
Griffin V. Griffin, 191. 
Griffith V. Goodland, 337,498. 
Griffiths 11. Righy, 508. 2 M. R. 

628. 
Grove V. Miles, 310. 
Grubh V. Bayard, 609, 620. 9 M. 

R. 199. 

Hall Y. Carpen, 530. 

Haloman v. Boiling Spring Co., 100. 

Hamilton v. Nutt, 310. 

Hanning v. Ferrers, 175. 

Hardman v. Johnson, 193. 

Hare V. Groves, 406. 

Hargrave v. Smee, 498. 

Harlan v. Lehigh Coal Co., 501, 

600, 649. 8 M. R. 496. 
Harnett v. Yielding, 329. 
Harris v. Mantle, 376, 377. 
Harris v. Pullman, 151. 
Hart V. Albany, 149. 
Hart V. Claxke, 189, 192, 194. 
Hartford Co. v. Miller, 478. 3 M. 

R. 353. 
Harwood v. R. R. Co., 291. 
Hawesville v. Hawes, 526. 7 M. R. 

193. 
Hawker v. HaJlewell, 194. 
Hawtayne v. Bourne, 610. 1 M. R. 

285. 
Hayes v. Waldron, 109. 
Hayner v. Smith, 684, 685. 
Hazleton Co. v. Buck Mt. Co., 423. 

2 M. R. 389. 
Heane v. Rogers, 74. 
Heaply v. Hill, 191. 
Heard v. Hall, 75. 
Henderson v. Hay, 11, 12. 
Henniss v. Page, 594. 
Herdic v. Young, 577, 579. 
Highland Co. r. Mumford, 131. 2 

M. R. 3. 
HiU V. Barclay, 317. 
Hill r. Neuman, 151. 4 M. R. 513. 
Hilton V. Granville, 246. 
Hilton V. Woods, 628, 639. Meas. 

Dam. 



Cases Cited. 



IX 



Hoadley v. San Francisco Co., 141. 
Hodges V. N. E. Screw Co., 245. 
Hoffman v. Stone, 128. 4 M. R. 

520. 
Holbrook v. Nichol, 44. 
HoU v. Hadley, 300. 
Holland v. Ryan, 152. 
Holmes v. Seely, 80. 
Holtzapffel v. Baker, 40b. 
Hood V. N. E. Railway Co., 568. 
Houston V. LafEer, 72. 
Houtz V. Gisborn, 315. 2 M. R. 340. 
Hovenden v. Lord Annesley, 291. 
Howard v. Ingersol, 120. 
Huddell, In re, 570. 
Huff V. McCauley, 286. 9 M. R. 

268. 
Hughes V. United States, 118. 
HumphreysviUe Co. v. Vermont Co., 

349. 
Humphries v. Brogden, 493. 
Hunt V. Peake, 637. 
Hyde V. Skinner, 326. 

Iggulden y. May, 329. 

Irwin V. Davidson, 113, 131. 7 M. 

R. 237. 
Irwin T. Strait, 87. 
Isaac V. Clark, 577. 

Jackson v. Brown, 246. 
Jackson v. Harsen, 610. 
Jackson v. Kisselbrack, 610. 
James v. Cochrane, 560. 
Jamieson v. Attorney General, 33. 
Jegon v. Vivian, 52, 536, 571. 8 M. 

R. 628. 
Jenkins v. Portman, 458. 
Jenny v. Perkins, 291. 
Johnstown Iron, Co. v. Cambria Iron 

Co., 609. 9M. R. 226. 
Jones V. Jones, 211. 
Jones V. Shears, 688. 8 M. R. 333. 
Jones V. Smart, 48. 
Joyce V. DeMoleyns, 211. 

Fane v. Hood, 498. 
Kane v. People, 245. 



Kelly V. Natoma W. Co., 128. 1 

M. R., 592. 
Kelly V. Taylor, 75. 5 M. R. 598. 
KerHn v. Bull, ?8. 
Kidd V. Laird, 98. 4 M. R. 571. 
Kier v. Peterson, 670, 672. 8 M. R. 

499. 
Kimberley t. Jennings, 348. 
King's Lynn v. Pemberton, 166. 
Kings County Ins. Co. v. Swigert, 

63. 
Kitchen v. Pridgen, 474. 
Knight V. Bowyer, 211. 
Knight V. Lord Plimouth, 245. 
Knox V. Smith, 483. 
Koch's App. 334. 4 M. R. 151. 
Koeller v. Iron Co., 245. 
Koenigmacher v. Kimmer, 245. 
Kreutz v. McKnight, 217. 6 M. R. 

314. 
Kynaston v. East India Co., 15, 16, 

18. 

Lake V. Craddock, 175. 
Lancaster v. Dolan, 249. 
Lawrence's App., 131. 7 M. R. 542. 
Learning v. Wise, 167, 246. 7 M. R. 

41. 
Learned v. Tangeman, 137. 
Leavitt v. Blatchford, 246. 
Leber v. Kauffelt, 596. 
Legard v. Hodges, 610. 
Leggitt V. N. J. Bk. Co., 246. 
Lehigh Coal dr N. Co. v. Harlan, 

498. 8 M. R. 423. 
Lewis V. Fothergill, 52, 638, 640, 

653, 654. Workings. 
Lewis V. Marsh, 19, 30, 40. 8 M. R. 

14. 
Lewis Street, In re, 498. 
Leyman v. Abeel, 610. 
Liford's Case, 668. 
Livingston V. Salisbury Ore Bed, 291. 
Lloyd V. London Co., 558. 
Lloyd V. Tomkies, 494. 
Llynvi Co. v. Brogden, 639. 
LobdeU v. Simpson, 98. 
Lockwood V. Lunsford, 681 . 7 M. R. 

532. 



Cases Cited. 



Lonsdale v. Curwen, 15, 28, 29. 7 

M. B. 693. 
Loomis V. Brush, 286, 291. 
Lord Mounfjoy's Case, 612-627. 9 

M. R. 175. 
Love V. Mabury, 202. 
Low V. Peers, 549. 
Lowndes v. Settle, 30. 
Lowndes v. Lane, 418. 
Lucas V. Comerford, 458. 
Ludwig 7. HigHey, 577. 
Lux v. Haggin, 91, 137. 
Lynn's App., 501. Wastk 
Lyon V. Gormley, 577. 5 M. R. 383. 
Lyon V. Miller, 536. Meas. Dam. 
Lytton V. Great N. By., 558. 

Macbryde v. Weeks, 204. Specific 

Pebformancb. 
Maden v. Veevei-s, 51. 
Mahony M. Co. v. Bennett, 152. 7 

M. B. 133. ■ 
Marshall v. Green, 308. 
Martin v. Porter, 639, 646, 647, 648. 

Measuke of Damages. 
Massot V. Moses, 309. 8 M. E. 607. 
Mather v. Trinity Church, 501, 507, 

577. Trover. 
Meadow V. M. Co. v. Dodds, 152. 
MeUers v. Duke of Devonshire, 317. 
Merritt v. Judd, 315. 6 M. B. 62. 
MicHes V. Bochester Bank, 246. 
Micklethwait v. Winter, 303. 
Middlesex Turnpike v. Swan, 246. 
Miles V. Stevens, 498. 
Miller v. Howry, 596. 
Miller v. "Wells, 481. 
Miller's Appeals, 498. 
Mining Co. v. Anglo Cal. Bank, 222. 
Mires v. Solebay, 577. 
Moore v. Fletcher, 610. 
Moore v. Foley, 329. 
Moore v. Greg, 468, 459. 
Moore v. Miller, 333, 387. 
Moores v. Choat, 458. 
Morgan v. Powell, 639. Measure 

OF Damages. 
Morgan v. Slaughter, 12. 
Morse v. Copeland, 70. 



Moss V. McCall, 309. 
Murdoek v. FuUerton, 692. 
Murray v. Vaiiderbilt, 246. 
Muskett V. Hill, 610, 618. 
McCombs V. McKennan, 438 
McCondlesh v. Keen, 309. 
McDonald v. Bear River Co., 128. 

1 M. B. 626. 
McElhenny's App., 275. 
McGowan v. State, 159. 
MoKee V. Pfout, 666, 672. 
McKellar v. Wallace, 447, 449. 
McKibben v. Lester, 44. 
McKillip V. McKillip, 809. 
McLean v. Barton, 291. 
McMasters v. Bead, 246. 
McStay v. Friedman, 189. 
McVickar v. FUer, 291. 

Nash V. Palmer, 492, 493. 

Neas' App., 310. 

Nefl's App., 245. 

Negley v. Lindsay, 246. 

New Albany v. Burke, 291. 

Newberry v. Detroit & L. S. I. M. 

Co., 291. 
New Jersey Zinc Co. v. New Jersey 

Frank, Co., 610. 
Newton v. Nock, 333. 7 M, B. 611. 
New York Co. y. Stephens, 673. 
North Penna. Coal Co. v.Snotvden, 

152. Ten. Com. 
Norton v. Webster, 672. 
Norway v. Bowe, 175, 176, 189, 211, 

293, 297, 609. 

O'Kelly V. Bodkin, 280. 

Ongley V. Chambers, 672. 

Ophir S. M. Co. V. Carpenter, 98. 

4 M. R. 640. 
Osborn v. Hart, 81. 
Owens V. Wight, 488. 
Owings v. Emery, 378, 450. 8 M. K. 

387. 

Page V. Broom, 329. 
Page V. Bsty, 326. 
Palmer v. Palmer, 286. 
Paramour v. Tardley, 610. 



Cases Cited. 



XI 



Parker v. Attorney General, 33. 
Parker v. Foy, 310. 
tarker v. Plummer, 610. 
Parker v. Smith, 498. 
Parker v. Webster, 80. 
Parkhurst v. Smith, 498. 
Parks, Ex p. 308. 
Parks V. Hall, 308. 
Parrottv. Palmer, 299. 
Parrott v. Sweetland, .309. 
Pasham v. Decatur County, 79, 
Patent Type Founding Co. v. Lloyd, 
. 24. 

Patterson v. Edwards, 309. 
Peabody v. Flint, 246. 
Pearl v. Nashville, 309. 
Pearson v. Williams, 540. 
Pennington v. Galland, 66. 
Pennsylvania v. Cribbs, 58. 
Pennsylvania V. Quicksilver Co., 153. 
Penny v. Pickvfick, 194. 
People v. Nearing, 80. 
People V. Shearer, 118. 
Percy v. Milander, 245. 
Perkins v. Smith, 578. 
Pheysey v. Vicary, 66. 
PhiUips V. Homfray, 628. 
Phillips V. Jones, 419, 421, 422. 8 

M. R. 344. 
Phillips V. Phillips, 211. 
Phillips V. Reeder, 180. Partner. 
Piatt V. Vattier, 483. 
Pinch V. Shaw, 211, 
Pitman v. Poor, 71. 
Pitte. & C. R. R. Co. v. Stewart, 

245. 
Plant V. Stott, 51. 6 M. R. 175. 
Pleasant v. Benson, 211. 
Pollard V. Clayton, 202, 299. Surf. 

Stipt. 
Pomfret v. Ricroft, 11. 
Porter v. Seeley, 453. 
Porter v. Spencer, 309. 
Powell v. Bagg, 115. 
PoweU v. Lloyd, 329. 
Powles v. Hargreaves, 458. 
Powley v. Walker, 638. 
Pratt V. California Co., 223, 300, 

658. 



Prendergast v. Turton, 189, 191, 
194, 211, 293-299, 688. 8 M. R. 
167. 

Preston v. McCall, 395. 

Pretty v. Solly, 33. 8 M. R. 301. 

Price V. Assheton, 329. 

Prosser v. Edmonds, 211. 

Pyer v. Carter, 66. 

Qxmrringtonv. Arthur, hh9. Wobk- 

nSTGS. 

Quayle v. Gmld, 309. 
Queen v. Winter, 610. 

Raine v. Alderson, £87, 673. 

Rakestraw v. Brewer, 189. 

Randall v. Russell, 193. 

Rawe V. Chichester, 189. 

Real Del Monte Co. v. Pond Co., 
166. 7M. R. 452. 

Reed v. Penrose, 594. 

Reese v. Bank, 245. 

Rex V. Bedworth, 375, 376, 418. 

Rex V. Osborne, 699. 

Rex V. Parrott, 375. 

Reynolds v. Pitt, 317. 

Rhodes v. Whitehead, 108. 

Richards v. Learning, 308. 

Richards v. Merrimac Co., 246. 

Richmond Co. v. Eureka Co., 607. 
Lode. 

Ricker v. Kelly, 70. 

RieJeetts v. Bennett, 610. Partner. 

Riddle v. White, 303. 

Ridgway v. Sneyd, 317, 560. 8 M. 
R. 414. 

Rigby V. Gt. W. Ry. Co., 641. 

Riley v. Boston Co., 570. 

Riopelle v. Gillman, 286. 

Ritson V. Dodge, 291. 

Roberts V. Eherhardt, 193. Part- 
ner. 

Robertson v. French, 498. 

Robinson v. Lord Byron, 167. 

Robinson v. Rosher, 458, 459. 

Rohinson v. Smith, 245. 3 M. R. 
443. 

Rogers v. Gilinger, 577. 

Rohr V. Kindt, 672. 



XII 



Cases Cited. 



Rolfe V. Rolfe, 468. 

Romie v. Casanova, 140. 

Roop T. Brubacker, 404. 

Roosevelt v. Dale, 649. 6 M. R. 

377. 
Basse v. Wainman, 657, 669, 672. 

Minerals. 
Royal Bank of Liverpool v. Grand 

Junction R. R., 291. 
Buplet/ V. Welch, 136. 4M. R. 243. 
RusseU V. Miller, 286, 291. 
Russell v. Ranson, 810. 

Sacramento v. Showers, 51, 165. 
St. Albans v. Ellis, 498. 
Sampson v. Burnside, 72. 
Sanders v. Benson, 458, 459, 463. 
Sanders v. Pope, 317. 
Sanderson v. C. & W. Ry., 558. 
Sanderson v. Haverstick, 577. 
Satterlee v. Mathe-wson, 665. 
Saunder's Case, 668, 671, 672. 
Savage v. Ball, 590. 2 M. R. 579. 
Schilling V. Rominger, 64. 
Schissler v. Chesshire, 51, 165. 5 

M. R. 309. 
Schooner Enterprise, 46. 
Schute V. Taylor, 649, 650. 
Scioto Co. V. Pond, 553. 
SouEy V. Delaney, 211. 
Seaman v. Vawdrey, 610. Rbser- 

VATION. 

Seddon v. Senate, 498. 

Selden v. Delaware & H. C. Co., 70. 

Selden v. Williams, 498. 

Senhouse v. Christian, 11, 175, 176, 

189. 
Sharon v. Minnook, 75. 
Sharp V. Thompson, 672. 
Sharp V. Wright, 639. 8 M. R. 

202. 
Shaw V. Bebee, 74. 
Shatv V. Wallace, 316. Trespass. 
Sheppard v. Doolan, 329. 
Shillingford v. Good, 531. 
Shouse V. Commonwealth, 58. 
Shrewsbury v. Gould, 498. 
Shult V. Barker, 601. 
Simpson V. WiUiams, 87. 



Skinner v. Bailey, 483. 

Smith V. Brown, 677. 

Smith V. Clay, 193. 

Smith V. Clyfford, 672. 

Smith V. Doe, 74. 6 M. R. 218. 

Smith V. Kenrich, 628, 689. 6 M. 
R. 142. 

Smith V. Logan, 113, 137. 

Smith V. Marrable, 418. 

Smith V. Morris, 345, 846, 371, 418, 
419, 421, 422, 423. 8 M. R. 317. 

Smith V. O'Hara, 128. 1 M. R. 
671. 

Smith V. Page, 447, 448, 449. 

Smith V. Surman, 308. 

Smith V. Vincent, 453. 

Smith V. Wise, 684. 

Smyth V, Wangle, 329. 

Snowden v. Wilds, 75. 

Snyder v. Warford, 66, 80. 

Sohey v. Thomas, 607. 4 M. R. 359. 

Solomons v. Laing, 244. 

Southcomb v. Bishop of Exeter, 204. 

South Wales Ry. Co. v. Wythes, 467. 

Sparks v. Liverpool W. Works Co., 
317. 

Speriug's App., 245, 247, 250. 

Spoor V. Green, 496. 

Stafford V. Ames, 577. 

Standen v. University of Oxford, 

304. 
Stanley v. Agnew, 638. 
Stemdale v. Hankinson, 280. 
Stevens v. Elwell, 578. 
Stewart v. Garnett, 610. 
StUlman v. White Rook Co., 115. 
Stockbridge Co. v. Cone Works, 14, 

51. 6M. R.317. 
Stockbridge Co. v. Hudson Co., 300. 
Story V. Norwich R'y, 481. 
Stoughton v. Leigh, 610. 5 M. R. 47. 
Stroh V. Kimmel, 596. 
Strousse v. Eagle Ins. Co., 246. 
Stump V. Pindlay, 671. 
Sullivan V. Portland R. R. Co., 291. 
Susquehanna B. Co. v. Ins. Co., 246. 
Sutton V. Temple, 418. 

Tabor v. Big Pitts. Co., 526. 



Cases Cited. 



XIII 



Talbot V.Ford, 811,457. 8M.R.347. 


Vandyke t. Christ, 577. 


Tatam v. Williams, 299. 


VanEtten v. Jilson, 157. 


Taunton Co. v. Mer. Ins. Co., 63. 


VanRensselaer v. Radcliff, 610. 


Taslor v. Chicliester & M. By. Co., 


Vansiehle v. Haines, 93, 99, 113, 


244. 


123, 186, 137. Water. 


Taylor v. Holmes, 291. 


Vicary t. Moore, 443. 


Taylor v. Porter, 81. 


Vigers V. Pike, 299. 


Taylor v. Shmn, 458. 




Taylor v. Taylor, 529. 


Wadham v. Marlowe, 407. 


Thomas v. Sorrell, 497. 


Wadman v. Calcraft, 317. 


Thompson v. Noble, 152. Oil. 


Wadsworthv. TUloteon, 83. 


Thompsonville Scale Co. v. Osgood, 


Wager v. Wager, 668, 671, 672. 


485. 


Wagnerv. Baird, 291. 


Thornburgh v. Savage M. Co., 152, 


Wake V. Hall, 349. 6 M. R. 119. 


7 M. R. 667. 


Walker v. Fletcher, 15, 28. 8 M. 


Throckmerton v. Tracy, 610. 


R. 1. 


Thurber v. Martin, 110. 


Walker v. Tucker, 344, 387, 688. 


Tiley v. Moyers, 474, 553, 628, 4 M. 


8 M. R. 672. 


R. 320. 


Wallwyn v. Lee, 211. 


Tipping V. Eokersley, 558. 


Walsh T. Trevanion, 681. 


Tod V. Stambaugh, 673. 


Walters v. Northern Coal Co. 211, 


Toll V. Wright, 286. 


458, 459, 463. 


Townley v. Gibson, 303, 305. 


Wardv. Cecil, 303. 


To-wnsend v. Warren, 193. 


Ward V. Cooke, 174. 


Tripp V. Overocker, 137. 


Warner v. Daniels, 255, 300. 6 M. 


TrranbuU v. Campbell, 530. 


R. 436. 


Tulk V. Moxhay, 460. 


Watson V. O'Hern, 478. 8 M. R. 


TuUock T. Hartley, 179. 


333. 


Turnpike Co. v. Wallace, 245. 


Weaver v. Eureka Lake Co., 98,128. 


Twelves v. Williams, 577. 


1 M. R. 642. 


Twin-Lick Co. v. Marbury, 291, 300. 


Webb V. Plummer, 498. 


3 M. R, 688. 


Webster v. Gray, 291. 


Tyler v. Wilkinson, 119, 501. 


Webster V. So. B. R'y Co., 211. 




Wedderburn v. Wedderburn, 189. 


Union Co. v, Dangberg, 91, 137. 8 


Weill V. Lucerne Co., 165. 3 M. R. 


M. R. 113. 


372. 


Union Co. v. Ferris, 64, 137. 8M. 


Weld V. Hornby, 669. 


R. 90. 


Wentz V. Dehaven, 75. 


United States v. Bebee, 300. 


West River Bridge Co. v. Dix, 67. 


United States v. Gratiot, 610. 


Whaley v. Brancker, 17. 8 M. R. 


United States v. Southern Col. Co., 


29. 


300. 


Whalley V. Bamage, U, hhB. 8M. 


United States v. Wiltberger, 48. 


R. 52. 


United States t. Winn, 49. 


WhaUey v. Wha.lley, 211, 


Upton V. Greenlees, 684. 


Wheatley v. Chrisman, 109, 136, 


ijpton V. Townend, 684. 


137. Ntjisancb. 




Wheatley v. Westminster Co., 581, 


Vanatta v. Brewer, 474. 6 M. R. 


628. 8 M. R. 558. 


358. 


White V. Patten, 75. 



XIV 



Cases Cited, 



Whiting V. Barstow, 577. 

Whitfield V. Bewit, 663, 668, 669,671. 

Whitewater Canal Co. v. Vallette, 
246. 

Whitmarsh v. Walker, 808. 

Wiekersham v. Orr, 73. 

Wilbraham v. Snow, 577. 

Wilcox V. Hausch, 113. 

Wild V. Holt, 689. Poss. 

Wilhelm's App. 300. 

Williams v. Attenhorough, 294. 2 

M. R. 410. 
Williams v. Protheroe, 211. 
Willingham v. Joyce, 329. 
Willis V. Caperton, 649. 
Willison V. Watttns, 671. 
Wilson V. Chalfant, 73. 
Wilson T. Furness Ry., 559. 
Wilson V. Leonard, 458. 
Wilson V. Lyon, 310. 
Wilson T. McEreth, 617. 



Winter v. Lord Anson, 309. 

Witherspoon v. Duncan, 118. 

Wood V. Copper Miners' Co., 638. 

Wood Hydraulic Co. v. King, 590. 
3 M. R. 618. 

Wood V. Leadbittei-, 73, 497. 

Wood V. Morewood, 689, 647. Meas. 

Dam. 
Wood V. Waud, 105. 

Woodbury v. Parshley, 71. 
Woodruff V. N. Bloomfleld Co., 900. 
Worcester Turnpike Co. v. WiUard, 

246. 
Worley v. Trampton, 329. 
Wright V. Guier, 577. 
Wyoming Co. v. Price, 531. 
Wynn v. CaUeuder, 174. 

Young V. White, 536, 541. 

Zane v. Kennedy, 246. 



TABLE OF HEADINGS. 



PAGE 

Inspection (Continued) 1 

Insteoke 52 

Instjeanoe 53 

Ieeigation 64 

jueisdiction 138 

JUEOE 153 

Laches 166 

Land 301 

Lease 316 

XT 



MINING REPORTS. 

VOL. VIII. 



Walkee et al. v. Fletcher et al. 

(3 Bligh (0. S.), 172. High Court of Chancery, 1804.) 

Repeated inspection— Removal of obstructions. Form of order a.llow- 
ingr repeated inspection, with viewers, and the power to remove obstiuc- 
tions, with the facts upon which it was based. 

In this case it appeared from the allejjations of the bill, 
supported by affidavits, that the plaintiffs being possessed of 
divers mines of coal at, etc., which thej' had for a lonj^ 
time (then) past wrought in copartnership; and that John 
Harris then was seized in fee, in trust for all the plaintiffs, 
of a close of land, with the mines of coal under the same, 
which at the east end abutted on a certain close belonging to 
the defendant John Fletcher, called the Seggs, and on the 
south side on another close called Flowered Moss; and that 
the defendants had begun to work the same; that there was 
under the close belonging to the plaintiffs, called Flowered 
Moss, and the other closes, called Flowered Moss and the 
Seggs, a mine or vein of coal of very considerable value; and 
that the defendant John Fletcher, together with the defendants 
Joseph Steel and John Wilson, then were, and for some time 
then past had been, carrying on and working divers collieries 
and coal mines in copartnership; and the defendants, as such 
copartners, or their servants and workmen, about three years 
before, had sunk a coal pit and erected a fire engine in the 
close of the defendant John Fletcher, called the Seggs, at the 
distance of about 50 yards from the plaintiffs' close called the 
Flowered Moss, and had ever since worked the said colliery, 

(1) 



2 Inspection. 

and liad carried on their works from the eni^ine ])it to the rise 
of the colliery toward the plaintiffs' close; that the defend- 
ants had driven and carried tlieir works toward the sonth- 
east corner of the plaintiffs' close, and had caused a drift or 
course of great width to be duaj from tlie southeast corner, 
under the plaintiffs' close, for the length of 70 yards and had 
also driven four or more boards or drifts out of their colliery 
into the said- drift or course, and had taken from under the 
plaintiffs' close very great quantities of coal belonging to the 
plaintiffs, which was done unknown to the plaintiffs, and with- 
out their privity or consent; that the plaintiffs had (then) 
lately begun to sink a coal pit in their close called Flowered 
Moss, and had tliereby or otherwise discovered that the de- 
fendants, or their several workmen or agents, had dug or 
taken such coals as aforesaid. 'J hat a few weeks after the sink- 
ing of the pit was begun by the plaintiffs, the defendant Steel 
was present and declared tliat the plaintiffs sliould never have 
a colliery or pit there, or to that purport or effect. That every 
means to prevent the same liad since been used by the 
defendants, and when the defendants found that such their 
workings under the plaintiffs' close had been discovered, they 
caused part of such workings which laid near the pit sunk by 
the plaintiffs to be filled up, and also plugged the bore-hole, 
and made barriers and walls in their workings under the closes 
called the Seggs and Flowered Moss, or one of tiiem, and had 
filled the same with wood, earth, clay and other materials, 
and thereby prevented the water flowing from the coal under 
the plaintiffs' close, in such manner as it had before done, and 
the pit which the plaintiffs had begun to sink and dig was 
thereby overflowed with water to tlie depth of four or five 
yards, so that the plaintiffs were prevented from working in 
and sinking the same; and the water also, by being so stopped 
in part, forced and extended itself to another' colliery which 
the plaintiffs were working, and which was near a quarter of a 
mile from the defendants' Seggs close, and was likely to extend 
much further and considerably to injure such last mentioned 
colliery. That from the proceedings of the defendants, which 
they still continued to pursue, and threatened to carry on to a 
much greater extent, unless such plugs, walls, dams and bar- 
riers were taken away, the plaintiffs were in great dano-erof 



Walker v. Fletcher. 3 

losing the whole benefit and enjojinent of their mine or vein of 
coals under their close, and their workings in other places 
might and would be greatly damaged; and the defendants by 
continuing to carry on their workings under the plaintiifs' 
close had taken and got from under the same great quantities 
of coals of great value; that in order to discover, and if pos- 
sible to prevent the proceedings of the defendants, and the in- ' 
jury done thereby to the plaintiffs' colliery, the plaintiffs had 
caused to be sunk in their close, the pit before mentioned, 
which was of the width of live feet, and of tlie length of seven 
feet; that the nearest part of the pit was six yards from the 
defendant's close called the Seggs; and tliat when it had been 
sunk to about the depth of 32 or 34 yards, the plaintiifs 
caused a perpendicular hole to be bored down to the coal, 
which was at a depth of 35 fathoms, or thereabouts, from the 
surface, and they found the coals at the bottom of such bore- 
hole entire; but having had reasons to suspect, from the pro- 
ceedings of the defendants, atid the observations and threats 
used by them shortly after the plaintiff's' pit was first begun, 
that the coal had been wrought and taken away within a very 
short distance of such hole, Jereraiali Harris and Joseph Mun- 
caster, ciu behalf of the plaintiffs, requested leave of the defend- 
ant John Fletcher, and also of the agents or workmen then at- 
tending the defendants' colliery, that Jeremiah Harris,,as coal 
agent of the plaintiffs and other persons then present, and along 
with him, might be permitted to go down into tlie defendants' 
coal mine and view the works, but the defendant John Fletcher 
refused to comply with the application, unless Jeremiah 
Harris could show a legal authority to enable him to do so. 

That the plaintiffs, not being able to obtain view of the de- 
fendants' colliery by means of such applications^ the plaint- 
iffs caused an oblique hole to be bored in their pit, so as to 
strike the coal at a little distance from the perpendicular bore- 
hole; that tlie oblique bore-hole was made in the hollow works 
made by the defendants under the plaintiffs' close, called 
Flowered Moss, and was between five and six feet, or therea- 
bout, on the east side of such perpendicular hole, and when 
the boring rods in such oblique state had reached the depth of 
the coal, which happened/on or about the 8th of September, 
then last, the boring rods entered into the hollow workin? 



4 Inspection. 

made by the defendants under the plaintiffs' close, and four or 
five yards, or thereabout, to the west of the boundary line 
between the plaintiffs' Flowered Moss close and the defendants' 
Seggs close; from which workings the defendants, their ser- 
vants or workmen, or some of them, had taken or carried 
away the coal; atid on further examination it had appeared 
that the defendants, their servants and workmen, had taken 
and carried away the coal under the plaintiffs' close, to within 
18 inches or two feet, or thereabouts, of the first perpendicu- 
lar bore-hole; but the defendants having refused to permit the 
plaintiffs or their agents to go into and examine their work- 
ings, the plaintiffs were not able more particularly to set forth 
the extent of the workings of the defendants, nor the quanti- 
ties of coal the defendants had taken from under the same. That 
the defendants had then blocked up their workings, or some 
of tliem, under the plaintiffs' Flowered Moss close, by placing 
framed walls. Garth, rubbish, or other works or inventions, to 
prevent the plaintiffs and their agents having any access to 
the same, or making any discovery of tlie injury done by the 
defendants to the plaintiffs; that the mine or vein of coal 
under the defendants' Seggs close, and part of Flowered Moss 
close, belonging to the plaintiffs, which adjoined thereto, 
dipped to the south, and therefore inclined from the place 
where the plaintiffs had sunk the pit toward Seggs close; and 
that such vein of coal was covered with a bed of coal-metal 
about eight yards thick, which was covered with a bed of stone 
about four yards thick, which beds of coal, metal and stone 
also dipped in the same direction las the coal, and that tlie wa- 
ter flowed down sunk beds toward Seggs' close. And that 
soon after the plaintiffs had bored the first mentioned oblique 
bore-hole in the workings, made by the defcTidants under the 
plaintiffs' Flowered Moss close, their servants or workmen had 
put, or caused to be put, a plug or plugs of wood and iron into 
such bore-hole, and also made or erected walls, fences or bar- 
riers in the drifts or workings, which they had filled with 
earth, clay, stones and other materials, with intent to make 
the same water-tight, and thereby prevent the water runnino- 
down from the coal ; and the water soon afterward be^an to 
run, and did afterward rise in the pit to the height of four or 
five yards, which was then dug down to just within the bed of 



Walker, v. Fletchee. 5 

stone only ; that the plaintiffs had since endeavored to let the 
water pass the pit, and to sink the same to the coal, for which 
purpose the plaintiffs had caused anotheroWique bore-hole to. 
be bored near to the first-ineationed perpendicular hole; 
but when the boring-rods reached to the place, where coal 
should have been, the defendants, to prevent the plaiutiffs. 
from drawing the rods, and in order to deprive the plaintiffs of 
the use tliereof, ia sinking the pit deeper, fastened the end of 
the lowest rods used in boring the last-mentioned oblique hole 
with an iron fork or key, or other instrument oi' means, in the 
hollow works made by the defendants under the pit so sink- 
ing by the plaintiffs in their close, and had aetua,lly prevented 
tlie plaintiffs and their workmen from, drawing the boring- 
rods upward, although a very considerable force had been 
applied for tliat purpose, and the boring-rods still remained, 
and were kept fastened by the defendants in the hole, whereby 
the rods were wholly lost, and rendeo^ed useless to the plaint- 
iffs, and tlie plaintiffs could therefore, no longer work in or 
sink the pit as they had intended by the usual and ordinary 
means pursued by them; and the defendants ai^d thpir work- 
men had very lately put and placed several wooden, inachines, 
inventions or contrivances, called framed dams, in the hollow 
works leading out of their coal mines to the colliery and 
mine, under the plaintiffs' close, or communicating therewith, 
by means wherefore the water was dammed or blocked up, so 
far as the said inventions were capable of doing. And the de- 
fendants absolutely refused to pull down the walls, framed 
dams and barriers, and to permit the water to run as it did be- 
fore; that in order to deter the plaintiffs from proceeding fur- 
ther in sinking the pit, J. Fletcher, the younger, tlie son of 
the defendant Fletcher, had given notice to the deponent, who 
was then emploj'ed by the plaintiffs in sinking the pit, that 
the defendants' framed dams were then closed, and that who- 
ever should be at the bottom of the plaintiffs' pit would be in 
damrer of being blown up, and that he came to give notice of 
the danger; that if care was not taken they must abide by the 
consequence after such notice; that by stopping \,he water 
from running off, the plaintiffs had been hindered a very 
long tim-e, and been put to a very great additional ex- 
pense in endeavoring to sink their pit to the bottom, and that 



6 Inspection. 

tlie water intended to have been stopped by tlie framed dams 
rendered sncli pit in a great measure useless, bj means of tlie 
water standing at the bottom thereof, in the hollow works 
made by the defendants under the plaintiffs' close; that the 
plaintiffs, if the pit had been sunk to the bottom, could not 
win the residue of their colliery adjoining on account of the 
coal being laden with water, so stopped by the said framed 
dams; and the defendants not only tiireatened, but actually 
continued and refused to move the same, and threatened that 
they would wholly prevent the plaintifts from working their 
coUierj', and were endeavoring to make the framed dams so 
tight by wedging as to drive the whole of the water back into 
the plaintiffs' colliery; and theyalso threatened and intended to 
prevent the plaintiffs from working the coals under their close 
called Flowered Moss, or wliereby the plaintiffs might be ena- 
bled to convert the coals under their Flowered Moss close 
aforesaid, to their own use. And in conformity with the dec- 
laration of the defendant Steel, the defendants had endeavored 
and were using and daily pursuing ever}' means in their pow- 
er to deprive the plaintiffs from deriving any benefit from 
their colliery, or from any means of discovering the extent of 
the injury done to the plaintiffs by the proceedings of the de- 
fendants and their workmen. 

The bill was filed in ISOi, praying that the defendants, 
their servants and workmen, might be restrained by the in- 
junction of the court from digging or getting any coals from 
under the plaintiffs' close, or in any manner digging under the 
same; and might be ordered to pull down the walls, dams or 
barriers which they had erected in their workings, whereby 
the water was prevented from flowing from the coals and col- 
liery under the Flowered Moss close as it did before; and that 
the workings of the defendant might be restored to the same 
state and condition as the same were in before the walls, dams 
or barriers were made; and that the defendants, their servants 
and workmen, might be restrained by injunction from making 
anj' such erections or stopping up their works, or otherwise 
preventing the water from flowing from the beds and veins 
of coal, and other beds and veins nnder the said close; and 
that proper persons to be appointed by the plaintiffs might be 
allowed, on reasonable notice being given for that purpose to 



Walkee v. Fletchek. 7 

the defendants, to inspect the workings of the defendants un- 
der the close called Seggs close, or under or near to the close 
called Flowered Moss close. 

On the 14th of December, 1804, a motion was made to the ef- 
fect of the prayer of the bill ; upon hearing which it was ordered, 
"That an injunction shijuld be awarded against the defend- 
ants, to restrain them, their servants, Wrknien and agents, 
from digging or getting any coals from under the plaintiffs' 
close in the pleadings mentioned, called Flowered Moss close, 
or in any manner digging under tlie same, until the defendants 
should fully answer the plaintiffs' bill, and this court should 
make another order to the contrary; and the defendants were 
to be at liberty to view or inspect the plaintiffs' Agill pit. 
Walker pit and the pit in tlie plaintiffs' said close, called 
the Flowered Moss, in the division of the defendants' lands, 
on giving a fortnight's notice in writing to the plaintiffs 
or one of them, with the name and description of the person 
to view and inspect on the defendants' part. And it was or- 
dered, that the plaintiffs should be also at liberty to view and 
inspect the defendants' pit mentioned in the pleadings, on 
giving the like notice in writing to the defendants, or one of 
them, with the name and description of the person to view and 
inspect on the part of the plaintiff. And it was ordered, 
that the defendant should remove the framed dams or barriers 
in their works as the viewers should direct, who were to 
cause the same to be removed unless they should be of opinion 
that the colliery would be thereby destroyed. And it was 
ordered that the viewers or inspectors should be at liberty to 
replace such frames, dams or barriers, if they should think 
proper, without prejudice to any application the plaintiffs 
might thereafter make to remove them. And it was ordered 
that no alterations should be made by the plaintiffs or defend- 
ants in their respective works till after the first view or in- 
spection, but so as not to prevent the regular working of their 
respective collieries or mines. And the plaintiffs were to be 
at liberty to attend each view or inspection of the defendant, 
with a vie we;* or inspector on their part; and the defendants 
were to have the same liberty of attending with a viewer or in- 
spector each view or inspection of the plaintiffs.' And it was 
ordered, that all views or inspections subsequent to the first, 



8 Inspectiojt. 

by either the plaintiffs or defendants, be, on giving a like no- 
tice in writing, with the name and description of the person 
to view or inspect on their parts respectively." 



Blakesley v. Whieldok. 

(1 Hare, 176. High Court of Chancery, 1841.) 

Rigrlit to in.spect, a nsnal coyenant in a lease or sale by installments. 

In a contract for the sale of the minerals under a given surface at a cer- 
tain price, payable in installments as the mining progressed, the vendor 
impliedly reserves the power of entering and inspecting the mines to 
ascertain the quantity of minerals from time to time gotten therefrom, 
and the vendor is entitled to specific performance of the contract with 
a covenant reserving such power in the conveyance. 

The plaintiff and the defendant entered into a contract in 
the following terms: 

" Memorandum of an agreement made tliis 6th day of April, 
1838, between Charles Blakesley, of, etc., of the one part, and 
George Whieldon, of, etc., of tl>e other part, as follows, namely, 
the said Charles JBlakesley agrees to sell, and tlie said George 
Whieldon agrees to purchase, all tiie coal mines and minerals 
lying under two fields, sitnated in the parish of Exhall, in 
the county of Warwick, (description and boundaries), and 
which contain twelve acres, at or for the price of £350 per 
acre, with full power for the said George Whieldon, his serv- 
ants and workmen, to enter upon the surface, and to search 
for, dig, bore, sink and use every other means necessary for 
getting, raising, and selling the said mines and minerals, pay- 
ing all reasonable compensation to the occupier of the said 
two fields for any damage that may be done to tlie surface 
thereof by such digging, boring, sinking, etc. And it is here- 
by farther agreed, by and between the said parties hereto, 
that the said George Whieldon shall pay down, on the execu- 
tion of the conveyance, the sum of £350, being the price of 
one acre of the said mines and minerals; and the like sum of 



Blakesley v. Whieldon, '9 

£350, at the least, at the end of every succeeding year, till the 
whole of the said twelve acres of mines and minerals shall be 
paid for, whether the quantity of one acre shall be got and, 
raised in each year or not; and that, if more than one acre 
thereof shall be got and raised in any one year, then an addi- 
tional snm sliall be paid for such excess, in the same pro- 
portion of £350 per acre; and if the said two fields do not con- 
tain so much sui'face measure as twelve acres, then the defi- 
ciency is to be made up from the next adjoining field or 
fields; and, lastly, it is agreed that the said Charles Blakes- 
ley shall, at Iiis own expense, make out a good title to the said 
mines and minerals, and deliver an abstract thereof to the said 
George Whieldon as soon as may be; and that the said George 
Wliieldon shall pay for the conveyance of the said mines and 
minerals. 

( Signed) Charles Blakesley, 
George Whieldon." 

Differences subsequently arose between the parties in set- 
tling the draft of the deed by which the contract was to be 
carried into effect, and thesfe were ultimately reduced to one 
question, namely, whether the plaintiff should have power to 
go down into any of the mines of the defendant, which might 
be necessary, for inspecting the working of the mines com- 
prised in the contract, or whether the power, if granted, should 
not be confined to the mere reservation of a right to descend 
any pits or shafts sunk on the land over the demised mines. 
The defendant declined to execute a deed giving the plaintiff 
any power to descend, for the purpose of insjiection, any pits 
or shafts not upon the land over the mines, wiiich he had con- 
tracted to purchase from the plaintiff. 

The bill was filed in March, 1839, and stated that the de- 
fendant was owner of certain mines contiguous to the mines 
contracted to be purchased by him from the plaintiff", and he 
intended not to sink any pit or shaft on the land over the 
mines contracted to be purchased from the plaintiff, but to 
work the same by means of the pits or shafts by which he 
worked the other mines; that, in working his said mines, the 
defendant had worked over the boundary of the plaintiff's 
mines and had got coal from them, and thus entered into pos- 
session, but had paid no part of the purchase money. 



10 Inspection. 

Tlie bill prayed that the agreement might be specifically 
psrtbnned, and that it might be declared that the plaintiff and 
his agents ought to have a reasonable right of entry into the 
mines daring such times as any part of tlie purchase money 
should remain unpaid, and that it might be referred to the 
master to settle the draft of the deed of conveyance and cov- 
enants to be executed by the plaintiff and the defendant for 
carrvina: the aorreementinto effect. 

The defendant, by his answer, admitted the agreement, and 
that he had since worked the mines thereby contracted to be 
purchased. The defendant also said that he was very conver- 
sant with the working of coals and other minerals, and he be- 
lieved that, in leases of minerals, or in sales of minerals, to be 
paid for by a royalty, according to the quantity of coals or 
minerals raised and gotten from or out ot the lands and lier- 
editam3nts so demised or sold, it was usual to insert powers 
authorizing tlie landlord or vendor, as the case might be, to 
enter and inspect tlie workings for sucli coals and minerals, in 
order to see that no waste was committed, and that tlie said 
coals and other minerals were worked in a proper and work- 
manlike manner; but that in the purchase of minerals by 
surface measure, no such power was, in ordinary cases, given 
to the vendor. 

Several witnesses, mining agents and others, examined on 
behalf of the plaintiff, deposed that it was agreeable to the 
usage and custom of the mining districts in that part of the 
county of Warwick, as between the seller and purchaser of 
mines, in cases where tlie time and mode of tlie pa3'ment of 
the consideration money depended on the manner of working 
the minerals, and the extent to wliich the same were worked 
in each year, that a power of entering into the mines, for the 
purpose of viewing the same, should be reserved to the seller. 
On behalf of the defendant, several witnesses deposed that, in 
leases and sales of mines by royalty, the lessor or vendor usu- 
ally reserved a power for a mine agent to go down to inspect 
the work, and see that the mines were properly worked; but 
in a sale of mines by surface measure, tliey never knew such 
a power reserved to the vendor. 

Mr. Sharpe, and Mr. James Paekee, for the plaintiff. 



Blakesley vi Whieldon. 11 

Mr. BoTELEE and Mr. Cock;j:eell, for the defendant. 

The title of the plaintiff to require the introduction into the ' 
deed of the covenant in question, was argned, first, upon the 
ground of whether it was a reasonable and necessary covenant 
for the protection of the interest which tlie vendor had under 
the deed; secondly, upon the evidence of custom; and thirdly, 
upon the conduct of the parties. 

To the third ground, as it formed no element in the judg- 
ment, it has been thought necessary to refer in the statement 
of the case. 

Yice-Chancellok: 

I abstained from giving a final judgment in tliis case at the 
close of the argument, from the desire of referring, before I 
did so, to the cases that illustrate the principle by which my 
present decision must be governed in order that it might 
distinctly appear to. what extent the judgment I should pro- 
nounce depended upon general principles, and to what extent it 
deperided on the evidence given in this cause. 

The general principle of law, that,, where a person makes a 
grant of any given thing, he impliedly grants that also which 
is necessary to make the grant of the principal subject effect- 
ual, does not admit of dispute; Pomfret v. Rlcroft, 1 
Sannd. 321, and notes. And this principle is carried to the 
extent that the implied grant entitles the lessee to whatever is 
necessary to the full enjoyment of the subject of the grant: 
Senhouse v. Christian, 1 T. H. 560. In determining what 
are usual and proper covenants in a case like that before me, 
regard must be had to the principle I have referred to; for 
the reasoning which would apply to a grant must, in principle, 
apply to a case like the present, so far as relates to the right 
of the parties to have preserved to tliem, not only the interest^ 
but the means of protecting the interest which they are to 
. take. -Further than that I do not consider I ought to go. 

In Henderson v. Hay, 3 Bro. C. 0. 632, the question was 
whether, under an agreement to grant a lease upon common 
and usual covenants, the lessor was entitled to a covenant 
from the lessee not to assign without license. Lord Thurlow 
decided that the lessor was not so entitled, upon the ground 



12^ Inspection". 

that common and usual covenants, conld onlj' be nnderstood to 
mean covenants "incidental to the lease." By the term 
"incidental to the lease," I understand Lord Thurlow to mean 
such covenants as were necessary' to protect a leasehold in- 
terest, without affeetinj? its legal incidents, and no other cove- 
nants. Considerable doubt appears to have been thrown upon 
this decision by the case of Morgan v. Slaughter, 1 Esp. 
8, and the case oi FolMngham v. Oroft, 3 Anst. 700. But in 
the subsequent case of Uhuroh v. Brown, 15 Ves. 258, Lord 
Eldon, after great consideration, upheld Lord Thurlow's de- 
cision in Henderson v. Hay, and decided that it made no 
difference whether the agreement declared that the lease con- 
tracted for was to contain the usual and proper covenants or 
not; tliat, in every agreement, whether as to freehold or 
leasehold estate, it was implied that there were to be usual and 
proper covenants; that both lessor and lessee would be en- 
titled to such covenants as were strictly incidental to the 
subject of the agreement, and to no others. Speaking of a 
covenant to sell a fee-simple estate, free from incumbrances, 
he says; "It is clear tliat covenant carries in gremio, and in 
the bosom of it, the right to proper covenants; " and he ex- 
plains the reason to be, that at all times, such covenants have 
been carried into execution in a particular manner; and he 
afterward extends the reasoning to other cases upon the same 
principle. In case of an agreement for a lease, with a stipula- 
tion that the lessee should keep the premises in repair, a right 
of entry was uniformly reserved to the landlord, as a right 
incidental to the interest reserved to him by the agreement. 
Covenants become usual and proper covenants only because, 
by common consent, they are found essential to perfect the 
contract between the parties. 

To apply this reasoning to the present case — it is proved in 
evidence that where coal mines are either let or sold at a roy- 
alty, with stipulations as to the manner of working the mines 
a right of entry to view the mines is reserved to the lessors, 
for the twofold purpose of seeing— first, in what manner the 
mines are worked; and, secondly, the quantity of minerals 
obtained. A covenant or proviso for tliis purpose is admitted 
to be incidental to the contract for such a lease or sale. The 
contract, without any express stipulation would, in Lord EI- 



Blakesley v. Whieldoit. 13 

don's language, carry in gremio, and in the bosom of it, the 
right of entry, which was necessary to protect the interest of 
the lessor or vendor. How does the present case differ from 
that? It differs from it in this respect only, that the lessor 
having no interest in the manner of working the mines, but 
having an interest in the quantity of minerals worked, a ques- 
tion may arise, whether the right of entry to which he w^ould 
be entitled, if his interest extended to both, must not be re- 
duced to such right of entry as will suffice to protect the single 
interest which he has; but his right to the incidental cove- 
nants as to that, interest must rem^ain. In the absence of any 
evidence but that to which I have referred, and which the an- 
swer of Mr. Wliieldon confesses, T should think that the con- 
clusion I have stated was irresistible. 

The ease does not, however, rest upon any conclusion merely 
so derived. The issue distinctly tendered in the cause by the 
plaintiff was, tliat tlie power of inspection was a usual reser- 
vatiou in cases like the present. Witnesses have been exam- 
ined on this point by both parties, and the evidence of the 
witnesses for the plaintiff- — scarcely more forciblt; than that of 
the defendant's witnesses — inevitaibly leads to the same con- 
clusion. In fact, all the evidence proves it. There must, 
therefore, be a decree for a specific performance of the agree- 
ment, giving tlie plaintiff suCh apuwer of entry and inspection 
as will enable him to protect his interest in the property, but 
not extending beyond what may be necessary for that purpose. 

Minute of DEORKE.--The agreement of the 6th of April, 1838, to 
be specifically perfovmed. 'J'he defendant admitting chat he has accepted 
ihe title, and the plaintiff w.iiving all claim to interest upon the installments 
of purchase money romaming unpaid, refer it to the master to settle the 
conveyance for carrying the agreement into effect, in ca?e the parties difl^er; 
and in settling such conveyance, the muster is to insert therein a clause em- 
powering the plaintiff and his agents, at all reasonable times, and upon 
reasonable notice, to enter the mines in the pleadings mentioned, and to in- 
spect and measure the same, so far as from time to time may be necessary, 
for the sole purpose of ascertaining whether the quantity of minerals, which 
should or may be gotten or worked in each year, has exceeded, and how 
much, if anything, an acre, until the whole quantity of coal under the said 
twelve acres shall be gotten or worked, or the whole of the twelve install- 
ments mentioned in the pleadings shall be paid; and in settling the said 
conveyance, the master is to have regard to the clauses usually contained in 



14 Inspectioit. 

leases and sales of coal at a royalty. Liberty to the master to state special 
circumstances. Costs to be reserved. The -parties to be at liberty to 
apply. 



Lewis v. Maksh. 

(8 Hare, 97. High Court of Chancery, 1849.) 

' Inspection through shaft on foreign gronnd. A coal lease limited the 
right of lessee to mine within a certain distance of buildings. The 
lease did not reserve a n'ght of inspection and the mine was worked 
through a shaft on other land of the lessee without any openings on its 
own surface: Held, on bill to restrain the working of the reserved 
ground, that lessors should have leave to inspect and to enter through 
the defendant's shaft on defendant's ground, for that purpose. 

Objectionable iudividnals excluded as viewers. 

A bill hy the lessors of a colliery against tlie lessees for an 
account of the workings of certain portion of the coal b}' the 
defendants, and to restrain the working in certain parts of the 
mine reserved by the lease. The defendants were entitled by 
the lease to work the coal, subject to a certain rent per ton, 
under an area of about 160 acres with an exception of the 
coal lying under and within thirty feet of certain buildings. 
It was admitted by the answer that the defendants had worked 
some of the excepted coal. There was no provision for inspec- 
tion in tlie lease, and the defendants had worked the coal 
through a shaft in an adjoining mine belonging to themselves, 
so that the demised mine could only bo entered through the 
defendants' mine. 

The SoLicrroE Gexkral and Mr. "W". M. James, for the 
plaintiffs, moved that the defendants might be ordered to 
permit the plaintiffs, and certain persons mentioned in the 
notice of motion, all or any of them, with workmen and 
otl.er necessary assistants, at all reasonable times, and from 
time to time, toliave access to the coal works of the plaintiffs 
in and through the adjoining coal works of the defendants, to 

' Stockhridge Co. v. Cone Works, 6 M. R. 317; WhaUey v. Bamage, 
8 M. R. 52. 



Lewis v. Maksii. 15 

inspect and examine the said coal works, the property of tlie 
plaintifl's, and to ascertain the real extent, state and condition 
tiiereof, and the real weight of the coal from time to time 
worked by tlie defendants therefrom. 

They submitted tliat the plaintiffs ought not to be left to 
read the admission from the answer, coupled as it was with 
other statements; but were entitled to the means of proving 
the fact that the defendants had worked beyond their boundary. 

They cited Kynaston v. East India Company, 3 
Swanst. 248; S. C. on appeal, 3 Bligh, 153; Earl of Lons- 
dale V. Curwen, 3 Bligh 168, n.; and Walker v. Fletcher, Id. 
172, n. 

Mr. "Wood and Mr. Wiiitbread, for the defendants, opposed 
the motion. Tlie plaintiffs might, if they had desired any 
such power of inspection, have reserved it in their lease; but 
they had made no such contract: Blalcesley v. Whieldon, 1 
Hare, 176. Nor had they, as in Kynaston^ s case, shown any 
necessity for the inspection. The present motion asked more 
than .had been conceded in any of the cases referred to; for 
the plaintiffs sought not only to inspect the demised coal 
works, but also to pass, for that purpose, into and through 
the property of the defendants. ISTo implied contract gave the 
plaintiffs such a right. Admitting that a power of inspecting 
their own mine might be impliedly reserved, it must be ex- 
ercised in a lawful way, at their own expense. The plaintiffs 
might open a' shaft and descend into the mine, upon their own 
property; that must be tlie extent of their legal right under 
the contract. ' 

YlCE CuANCELLOE. 

I think the case is one in which there is a necessity that 
the party should be allowed what he asks, in order to prove 
his case. That is the meaning of necessity. A party can not 
get his rights without proving what his riglits are; and it is 
inherent in the case that the plaintiffs should have an oppor- 
tunity of ascertaining that the defendants do not work more 
coal than they are entitled to do. If there had been a shaft 
going through the plaintiffs' land there would not be the 



16 lNSPECTIO]Sr. 

slightest doubt as to the plaintiffs' right to go down and in- 
spect the works. 

The object of allowing supports to remain is to prevent the 
ground from sinking, by which not only the surface, but 
sometimes roads and buildings are damaged; and to prevent 
that, provision is commonly made that certain supports shall 
be left. If adequate supports are not left, irreparable mis- 
ciiifef will probably follow, and the parties endangered in such 
a case must be allowed to come the moment the supports are 
about to bo taken away. If the parties do not make any 
stipulation as to what the size of the supports shall be, a ques- 
tion of difficulty may often arise; but wlien they stipulate^ 
as I understand is the case here, that supports, co-extensive 
with the mass of buildings, or of a certain admeasurement, 
shall be left, the difficulty is obviated. 

It appears to me that this is a case as well of necessity as 
of irreparable mischief. I can not think that in this case the 
court is required to direct the preliminary reference which 
was considered proper in the case of Kynaston v. The East 
India Company, 3 Swan. 255. It was there a question 
whether it was necessary to examine the warehouses in- 
ternally in order to get at the full amount. I do not conceive 
that the court would go into that question when the implied 
contract between the parties would give the right of inspec- 
tion. It appears that the court has once allowed the inspec- 
tion to take place before the hearing. 

Mr. Wood interposed a difficulty, which I confess presses 
me more in a moral view of the case than in its legal bearinCTs 
— that you must go through the workings in the mine of the 
defendants. I can not, however, think the defendants, by 
choosing to work their colliery in a way which gives the 
plaintiffs no access except through the property of the de- 
fendants, to their own property, which they have a right to 

examine, can afterward be allowed to urwe their own act 

an act done for their own convenience and benefit — as an ob- 
jection to the inspection which the plaintiffs would otiierwise 
have obtained. 

The defendants, objecting to the admission into their mine 
of certain of the persons mentioned in the notice of motion 



Bennitt v. Whitehotjse. 17 

the plaintiffs consented to withdraw the names of the persons 
objected to. 

MiNTJTB OF Decree. — This court doth order that at all reasonable times, 
until the publication 'shall pass in this cause, the plaintiff's be at liberty, 
upon giving reasonable notice, to view the plaintiffs' mine in, etc., and the 
workings of the defendants therein; and it is ordered that such persons as 
the plaintiffs shall appoint be atliberty also to view the said mine and work- 
ings, on giving a Joi-tnight's notice m writing to the defendants of the 
names and descriptions of the persons so to be appointed to view, and in- 
spect the same on the part of the plaintiffs (the plaintiffs by their counsel 
undertaking not to appoint I. T., etc., for such purpose), and it is ordered 
that the defendants do permit the said plaintiffs and the persons so to be 
appointed (other than the said I. T., etc.,) to have access to, a,nd to view 
and inspect the said mine and workings; but this order is not to entitle 
he plaintiffs to view or inspect any part of the defendants' mine except for. 
the purpose of ascertaining the boundary of the plaintiffs' mine. 



Bennitt v. Whitehousb. 

(28 Beavan, 119. The Rolls Court, 1860.) 

Inspection of colliery working' across bonnds. The owner of a mine 
sought relief against the owner of an adjoining mine for an alleged 
trespass in working into the plaintiff 's mine: iTcM, that the plaintiff 
upon making out a prima facie case was entitled to an interlocutory 
order for an inspection of defendant's mine: that the denial by the de- 
fendant of the trespass was not a sufficient ground for refu ing the 
order, and that it did not depend upon the balance of testimony. 

'The court requires tlie best evidence of facts, and if that evidence is 
only to be obtained by inspection, an inspection will be allowed. 

The plaintiff and defendant were lessees of adjoining coal 
mines. The plaintiff, having some reason to suspect that tlie 
defendant was working from his own mine into the plaintiff'? 
mine and taking coal therefrom, applied to the defendant to 
permit hiiii to go df)wn the pits into the defendant's colliery, 
to inspect the working. The defendant denied altogether that 
ho was working into the plaintiff's colliery, and refused the 
permission. 

I Whaley v. Brancker, 8 M. R. 29. 

VOL. VIII— 2 



18 Ikspectiox. 

The plaintiff instituted this suit against the defendant, 
praying an account of the coal raised by the defendant out of 
the plaintiff's colliery; for payment of the value; for an in- 
junction to restrain farther trespass, and for an inspection of 
the workings of the defendant's colliery. 

A motion was now made for an inspection, and the state of 
the evidence was as follows: 

The plaintiff swore to his belief and conviction that tlie de- 
fendant was working into his colliery, and said that he was 
unable to ascertain the fact, unless permitted to inspect the 
mine. This was supported by Skidmore, formerly a work- 
man at the defendant's colliery, but who had been discharged, 
as he said, because he was supposed to liave given information 
to the plaintiff as to the defendant's workings; he was now 
working for the plaintiff. He stated that the prevalent im- 
pression amongst the colliers employed in the defendant's pit 
was, that they were working the coal in tiie plain tiff''s col- 
liery, and that he believed the defendant's workings were, to 
a considerable extent, under the plaintiff's land. 

The defendant, by liis answer, altogether denied that he had 
worked into the plaintiff's mine, and his witnesses stated tliat 
it was impossible for a man, at a distance of ten yards from 
the bottom'of a shaft to sav in what direction he was workino- 
or going. 

Mr. WiOKENS, in support of the motion. 

The point in dispute can only be settled by an inspection. 
If the defendant should turn out to be riirht, no injurv will 
have beep done to him, but if, on the contrary, tlie plaintiff is 
right, there will be a denial of justice by refusing an inspec- 
tion. Re relied on The East India Company v. Kijnaston, 
3 Bligh (O. S.), 153; llie Attorney -General v. Chamhers, 12 
Beav. 159; Eynaston v. The East India Company, 3 Svvanst. 
2i8. 

Mr. Bagshawe and Mr. Moeeis, contra. 

The plaintiff is bound to make out some case of trespass 



Bennitt v. Whitehouse. 19 

to entitle him to an examination of the defendant's mine. 
There is nothing in this case but belief on the part of the 
plaintiff that there has been a trespass, and this is positively 
denied by the defendant. 

, The plaintiff and defendant are rival traders and miners, and 
the object of the plaintiff is merely to ascertain the nature of 

I the defendant's workings, the depth and thickness of the dif- 
ferent strata, and the mode of the defendant's working, in or- 
der that he may avail himself, in the adjoining mine, of the 
outlay and experience of tlie defendant. This is not a legiti- 
mate object, and the plaintiff has no right, on mere coiiject- 

Kire, to force the defendant to discover these matters; again 
there is no distinct evidence that the plaintiff can not, from his 
own colliery, ascertain whether there has been any trespass. 

In The East India, Compaiiy v. Kynaston, tlie right to the 
tithes was adinitted and tlie only question was the amount. In 
The Attorney -Qeneral v. Ghamhers it does not appear that 
therd' was any denial of the trespass, but the question was as 
to the extent. In Leiois v. Marsh, 8 Hare, 97, " it was admit- 
ted by the answer that the defendant had woi'ked some of the 
excepted coal." 

But here there is a positive denial. 

The ]\Jastee of the Eolls. 

It is established by the cases, that if a person is making, 
use of his property to the injury of the property of his 
neighbor, the latter is entitled to an inspection in order to 
ascertain the extent of the injury, and this court only requires 
him to show a prhna facie case; and the mere contradiction 
of the defendant amounts to nothing, unless he shows 
positively that no injnry has been done to him. Tliore must, 
in the absence of contract, be s. prima facie case, showing a 
reasonable ground for tlie belief that an injury is committed. 
If it were a question depending only on the balance of testi- 
mony, I should, in this case, be in favor of the defendant. 
But the court requires the best evidence of the fact, and the 
best evidence here is by an examination of the workings in 
the defendant's mine. 



20 Inspection. 

Suppose a man had a riglat to the surface, and that another 
person was entitled to the minerals — if the latter insisted that 
the former liad sunk a shaft, and was abstracting, his minerals, 
wonld not this court allow an inspection, in order that the 
fact in dispute might be ascertained? I have acted npoh that 
principle in Adshead v. Needham, in which I allowed the 
plaintiff to go through a gallery in the defendant's mine in 
order to inspect it. 

The way in which Lord Redesdale puts it is this he says, 
" In Lord Lonsdale's case, the order was made before the 
decree, and upon a question where the rights of the parties 
were uncertain. It might have turned out, after the order 
of inspection in that case, that the plaintiff had no right; but 
in this case his right is ascertained. The only difference 
(which is immaterial) is, that in that case it was amine, in 
this a house; but both are equally private property. 

In that case, the result of the inspection was a discovery, 
that coal to the amount of £3,000 had been taken away from 
Lord Lonsdale." Wherever it appears that a person has 
power to make use of his land to the injury of another, and 
there \9. prima facie evidence of his doing so, though it is 
contradicted, still, as the only way of ascertaining the fact is 
by an inspection, the court always allows it, if it can be done 
without injury to the defendant, i am of opinion that tlie 
plaintiff ia entitled to an inspection, but it mnst be at his 
own expense, and on giving the defendant reasonable notice. 

The plaintiff must have an order to inspect, at all reason- 
able times, upon giving one day's notice, so far as may be 
necessaiy to ascertain whether the defendant has worked into 
the plaintiff's land, and how far and to what extent, with 
liberty to measure, dial and make all such plans or surveys as 
may be necessary for that purpose, and to use the defendant's 
machinery for descending and ascending, doing no injury to 
the defendant's works, and paying the defendant any expeiises 
which he may incur. 



Bennett v. Griffitus. 21 

Bennett v. Griffiths et al. 

(30 L. J., Q. B. 98. Court of Queen's Bench, 1861.) 

Ancillary poiver to reinoTC obstructions. Plaintiff, the owner of a mine 
adjacent to a mine wovlced by the defendants, believing that defendants 
had worked beyond the boundary, applied to them for leave to inspect 
their workings. After some delay permission was granted, when at the 
boundary between the plaintiff 's and defendants' minerals, a newly 
erected wall was found which stopped further inspection. This wall the 
defendant refused to allow to b3 interfered with. On application to a 
judge at chambers an order was made for the government inspector to 
examine the wall and report on the practicability of an inspection behind 
it, and he reported that it could be done, whereupon the judge made 
an order that plaintiff, by his witnesses, workmen and agents, should 
be at liberty to inspect tlie defendants' mine at anil behind the wall on 
certain terms: Held, that under Sec. 58 of the Com. Law Procedure, 
Act of 1855, giving to courts of law the power to order inspection, there 
was as ancillary thereto the power to order the removal of obstiuctions. 

Security required before granting' tlie order for inspection, by bond or 
deposit. 

This was a motion for a rule callin<i; upon the plaintiff to 
sliovv cause why an order of BLAOKBffEN, J., for the inspection 
of a mine of the defendants should not be set aside. 

It appeared from the affidavits that the plaintiff was the 
owner of certain coal mines, situate at Titford, near Oldbury, 
in the county of Worcester, containing an area of forty acres 
or thereabouts. The defendants were the lessees and occu- 
piers of other mines adjoining to the said mines of the 
jjlaintiff, and which the defendants were engaged in working 
at the time the said order was made. The plaintiff, having 
cause to believe that the defendants had encroached upon his 
mine, applied to thera, on the 2d of October, for permission 
to make an inspection of tlieir mines. On the 26tli of Oc- 
tober, a mine agent, employed for the purpose by the plaintiff, 
was allowed to go down into the mine, when he found that 
the defendants were working and getting a measure called 
the " thick coal." He made his survey from the pit shalt 
along a gate road, to the boundary of the plaintiff's mine, 



22 IXSPECTIOX. 

and at the boundarj be found a recently erected wall or 
building, which, according to his affidavit, divided the mines 
of the plaintiff from the mines of the defendants, and ex- 
tended thirty yards or thereabouts. Application was made to 
the defendants to allow the wall to be taken down, in order 
that the plaintiff's agent might see whether or not any en- 
croachment had been made beyond it; but the defendants 
refused to allow that to be done. There were no means by 
which it conld be ascertained whether such an encroachment 
had taken place, except by taking down a ])ortion of the wall 
and driving a gate road through it, or by making a road from 
the plaintiff's own mines, at an expense of about £1,000. 
The time occupied in the latter process would be about six 
months. The plaintiff had reason to believe that about 1,000 
square vards of his coal had been taken away by the defend- 
ants. On the part of the defendant*, it was sworn that it 
would be injurious to their mines if a gate road was driven 
tlirough the wall; that the wall which had been erected was 
only the usual and proper wall, erected for the purpose of 
strengthening the gate road in that portion of the mine; and 
that the workinors had been confined to the settinir of coal 
within their own boundaries. A summons had previously 
been obtained for an inspection of the defendant's mines; 
and, under the state of things above set out, Blackbue.v, J., 
ordered that that summons sliould be adjourned for a week, 
" to procure a report from the inspector of mines as to the 
practicability — especially with reference to the safety of the 
mine — of making an inspection behind the wall mentioned in 
the affidavits," the plaintiff undertaking to abide by any order 
the court might make as to paying expense or loss incurred 
during his inspection. 

In obedience to this order, the inspector of mines for the 
district was allowed to go down into the defendants' mines on 
the 13th of November; but he was unable to make a siuisthe- 
tory examination, in consequence of the "damp" in the 
mine. The defendants refused to allow any person employed 
by the plaintiff to go iuto the mine witli the inspector, al- 
though the latter assured them that his inspection would not 
be satisfactory unless that was done. 



Bennett v. Griffiths. 23 

An order was, on the 16th of November, made by Black- 
BUEN, J., further adjourning the summons, and ordering that 
the defendants should give to tlie inspector all such facilities 
as he should require, including permission for such persons 
as he should think fit to accompany him for the purpose of 
the inspection. 

On the 20th of l^ovember the said inspector made his re- 
port, to the effect that an inspection could be made beliind 
tlie wall eitlier by making a headway in the salid coal, near 
the wall, or by removing a portion of the wall itself, which 
consisted chiefly of short, round timber, longitudinally packed ; 
that a portion of the return air-current from the workings 
might be diverted, and safely used by the plaintiff for the 
purpose of ventilating such workings as might be deemed ex- 
pedient for such inspection. He farther reported that no 
practical difficulty existed calculated to endanger the lives of 
the wod'kraen employed; and that the inspection sought by 
the plaintiff was not likely to prove detrimental to the pres- 
ent or future workings of the mine, beyond a temporary sus- 
pension of the works of the defendants. 

An order was then made by Blackbuen, J., " that the plaint- 
iff be at liberty, by his witnesses, workmen and agents, to 
inspect the defendants' mine, at and behind the wall, in the 
affidavits and the inspector's report mentioned; that for this 
purpose the defendants give all reasonable facilities for ac- 
cess to and in the mine, and for ventilation during the proc- 
ess; and that the plaintiff be at liberty, so far as is necessary 
for the purpose of the inspection, to make a driftway, as 
described in the inspector's report. That before commencing 
the inspection, the plaintiff give security to the satisfaction of 
the master, to the extent of £500, or deposit that sum with 
the master, to abide any order the court may make as to in- 
demnifying the defendants for any loss or dama'^e which may 
be sustained in consequence of this inspection." 

The rule was moved for, JSTov. 26, 1860, by G-rat, on behalf 
of the defendants. It is not intended to dispute the propriety 
of the order which has been made by the learned judge, for 
probably the afiidavits disclose sufficient ground for making 
such an order, if there is any power of doing so. But the 



24 Inspection'. 

defendants contend that there is no such power. Section 58 
of the Common Law Procedure Act, 1854, enacts as follows: 
" Either party shall be at liberty to apply to the court or a 
judo:e for a rule or order for the inspection by the jury or 
by himself, or by his witnesses, of any real or personal prop- 
erty, tlie inspection of which may be material to the proper 
determination of the qnestiou in dispute; and it shall be law- 
ful for tJie court or a judge if they or he think fit to make 
such rule or order, upon such terms as to costs and otherwise 
as sncli court or judge may direct," etc. 

(BLACKsgRN, J.— I thought that as 1 had anthorlt}' to order 
that an inspection should be had, I was also entitled to order 
that the plaintiif might do all that was ancillary to such in- 
spection.) 

It is not necessary to discuss the question whether a court 
of equity would grant it or not, for there is no reference in 
the section to the practice of snch courts, as there is in the 14 
and 15 Vict. e. 99, s. 6. The only word used iu section 58 is 
'•Inspection." 

(CocKBURx, C. J. — But that word may have acquired a mean- 
ing in the courts, of equity. Hill, J. — The -wall was built 
under circumstances which lead strongly to the conclusion 
that it was done intentionally to prevent an inspection. Can 
it be contended that the court is powerless to say that this in- 
spection should take place iu spite of the wall being placed 
there?) 

Yes, that is the contention of the defendants, for there are 
no words in the section giving a judge power to order that the 
works of the defendants should be destroyed. A very similar 
point arose in The Patent Tijpe-Founding Company^ Lim- 
ited, V, Lloiid,29 Law J. Eip., N. S., Exch. 20T, where the 
court of exchequer refused to order the defendant, who was 
the publisher of a newspaper, to give up some of his type for 
the purpose of being analyzed by the plaintiff. The grounds 
of that refusal apply here; and no one can tell how far the 
court would be obliged to go if they held that the learned 
judge had power to make this order. 

(Blackbuen, J. — The case which you cite arose under the 



Bennett v. Gkiffiths. 25 

L5 & 16 Vict. c. 83, s. 43, the words of which are not tlie 
same as in section 58.) 

It' the legislature had intended to give such power, some 
further words would have been used. 

The court having granted a rule nisi — ■ 

Macnamaea showed cause in the first instance. — It can 
not be doubted that the judge had power to order an inspec- 
tion of the mines in order to find out whether or not there 
had been an encroachment upon the plaintiff's mines. That 
being so, it follows that he had power, under the circum- 
stances, to. order that the wall should be taken down, for oth- 
erwise it was impossible to get at tliepart alleged to be en- 
croached upon without an unreasonable waste of time and 
money. Again, no harm is done to the defendants, for all 
proper precaution is taken to secure them against loss. What 
was intended by the legislature was a full and complete in- 
spection, and such an inspection can not be had witliout pull- 
ing the wall down in part. Such a step is in accordance with 
the maxim that where anything is given by the law, that is 
also given which is necessary to the enjoyment of it. In fact, 
unless the order is made there will be a denial of justice. In 
The Patent Type-Founding Coinpany^ Limited, v. Lloyd, tlie 
court, no doubt, refused to order thatspme of the type should 
be broken up, but that was because an inspection could be had 
by looking at it; and Bramweli, B., said, " If it is an article 
the nature of wliich can not be ascertained by the eye, or oth- 
er external examination, some other mode of ascertaining it 
must be resorted to." The court would in that case have made 
the order if it could have been shown to be necessary. Sup- 
pose a judge made an order for the. inspection of a house, 
surely he could also order that the door should be opened. 

(Elackbujrn, J, — In The Attorney-General v. Chamhers, 
12 Beav. 159, the master of the rolls made an order that the 
commissioners of woods and forests should have liberty to 
enter and inspect the coal mines of the defendant, and to take 
all necessary steps for enabling them to make and perfect a 
complete survey.) ' * 

This proceeding is necessary to the inspection of the mines. 

Gkat replied. 

Cur. adv. vult. 



26 IxSPECTIOK. 

CocKBUEx, C. J., now delivered the judgment of the 
court. 

In this ease the plaintiff, who is o-svner of minerals 
adjacent to a mine worked by the defendants, having reason 
for believing that the defendants had worked across the 
bonndary and removed his coal, applied to them, on the 2d of 
October, for leave to inspect their workings, and ascertain if 
such was the fact. Tlie agent of the defendants put off the 
inspection from time to time till the 2(3th of October, when 
he permitted the plaintiff's agent to descend into the mines 
and inspect them. The plaintiff's agent fonnd the workings, 
as far as he could examine them, to be within the defendants' 
boundary; but at the boundary between the plaintiff's miner- 
als and the defendants' he found a newly-erected wall, extend- 
ing for about thirty yards. If there was any encroachment 
at all, it must have been behind this wall. The plaintiff 
• applied to the defendants for leave to take down part of this 
wall, so as to ascertain if there was any encroachment behind 
it, and was refused. He then applied at chambers for an 
order, under the oStli section of the Common Law Procedure 
Act, 1S54-, to inspect the defendants' mine behind this wall, 
on affidavits showing a prima facie gronnd for believing that 
there had been an encroachment behind it Affidavits were 
nsed in opposition, in which it was strongly sworn that any 
meddling with this wall would produce very injurious effects 
on the defendants' mine, and be attended with great danger 
to those engaged in working it, but containing nothing to 
raise any doubt that the wall had been recently erected, and 
that an inspection beyond it would decide at once whether 
there had been an encroachment or not. The judge at cham- 
bers (Blackbuex, J.) made an order that the government 
inspector of mines should be permitted to examine this 
wall, and report on the practicability and safety of an inspec- 
tion behind it. This order was at first bafHed; but, on a 
second and more peremptory order to the same effect, the 
government inspector of mines did examine it, and reported 
that an inspection could be made behind the wall, by certain 
means, pointed ont in the report, without any practical 



Bennett v. Griffiths. 27 

difBcultj' or any danger either to the lives or health of the 
workmen employed in the said pits and workings, or with 
any likelihood of detriment to the present or future workings 
of the mine, beyond a temporary suspension of the works of 
the defendants for a few hours, or at most for a day. On this 
Blackburn, J., made an order "that the plaintiff, by his wit- 
nesses, workmen and agents, should be at liberty to inspect 
the defendants' mine at and behind the wall in the afHdavits 
and inspector's report mantioned; that for this purpose the 
defendants should give all reasonable facilities for access to 
and in the mine, and for ventilation during the process; and 
that the plaintiff sliould be at liberty, so far as was necessary 
for the purpose of the inspection, to make a driftway as de- 
scribed in the inspector's report; that before commencing the 
inspection tlie plaintiff should give security to the satisfaction 
of the master to the extent of £500, or deposit tliat sum v>'ith 
the master, to abide any order the court might 'make as to 
indemnifying the defendants for any loss or damage which 
may be sustained in consequence of this inspection, and the 
plaintiff undertaking to fullill any order in that respect made 
by the court." 

Oil the last day of last term, Mr. Gray applied for a rule to 
set aside this order, against which cause was shown in the 
first instance. No objection was made to the propriety of the 
order, or the justice of the terms contained in it, if the judge 
had jurisdiction to make it; but it was contended that neither 
the court nor a judge had juriijdiction to interfere with the 
wall itself or the defendants' minerals, for the purpose of mak- 
ing an inspection behind the wall. As tiiis was the first in- 
stance, as far as we know, in which any question as to the ex- 
tent of this new jurisdiction in a court of common law had 
been raised, the court took time to consider. 

We are of opinion that the judge had jurisdiction to make 
the ordei' in question. The power to order an inspection of 
real or personal property lias long existed in the courts of 
equit}', and wo find that a-s ancillary to that power the courts 
of equity have ordered the removal, where necessary, of ob- 
structions to the inspection. In the notes to The East India 
Company v. Krjnaston, 3 Bligh, O. S., 153, 168, two cases are 



28 Inspectio:;?. 

referred to in wliich, under circumstances very similar to tlie 
present, such orders were made. In The Earl of Lonsdale v. 
Curwen, the defendant had worked his own mines fo as, by 
the rubbish, etc., to obstruct the passages to the spot where 
tlie inspection was souglit. An order was male that the view- 
ers should inspect the mine, and that the defendant should re- 
move the obstructions. lu Walker v. Fletcher the defendants 
had, in working their own mines, either iona fide to keep 
out the water, or colorably to prevent the inspection, erected 
framed dams and barriers, the effect of which was to drown 
tlie part of the mine where it was alleged that tlie encroach- 
ment had taken place. The order made was, that the defend- 
ant should remove the framed dams or barriers as the viewers 
should direct, and that the viewers were to cause the same to 
be removed, unless they should be of opinion that the collier- 
ies would be thereby destroyed. This latter case, which was 
decided in the time of Lord Eldon, is a strong assertion of 
the power to remove obstructions to inspection, and seems to 
us to go far to support, in that respect, the order now com- 
plained of In the recent case of Ennor v. Barwell, 6 Jur., 
N. S., 1233, the lords justices varied an order of Stuart, V. 
C, in which he had directed that the plaintiff should beat 
liberty to cut trenches in the defendant's ground in order to 
ascertain the geological formation of the ground there, as be- 
ing too extensive; but no doubt was thereby thrown on the 
jurisdiction exercised in The Earl of Lonsdale v. (Juru^en 
or Walkers. Fletcher. The 58th section of theComn:on Law 
Procedure Act does not regulate the jurisdiction given to the 
courts of law by reference to that already exercised by the 
courts of equity; but we think, that as ancillary to the power 
of inspection given to the courts of common law, there is the 
same power given to remove obstructions with a view to in- 
spection which was exercised by the courts of equity as ancil- 
lary to their power of ordering inspection. The order com- 
plained of does not, as it seems to us, go further than that 
made in Walker v. Fletcher. 

This being our opinion, the rule must be discharged. 

Ride discharged. 



Whaley v. Bkanckee. 29 

Whaley v. Bkanckek. 

(10 Law Times, N. S., 155. V. C. Kindersley's Equity Court, 1864.) 

An adverse inspection will not be allowed until time given to defend- 
ants 1o answer the affidavits upon wlaich it is based. 

TVliere the court can not be satislie<l as to the trnth and materiality of a 
case, an inspection is a course constantly taken by the court, to do jus- 
tice. 

Bailey, Q. C. (Eddis with him), moved in this case for an 
injunction to restrain the defendants, their agents and work- 
men, from digging or carrying away any coal or otlier min- 
erals from within or under the property of tlie plaintiffs at 
Femberton in Lancashire, and from working into, damaging, 
or interfering with any of the plaintiffs' barriers. The 
plaintiifs and the defendants worked neighboring coal mines 
in the same vein of coal; and it was alleged on the part of 
the plaintitis that the defendants were trenching upon the 
plaintiffs' barriers. 

Speed, for the defendants, asked for time to answer the 
affidavits; the defendants were willing to give an undertaking 
until the next seal in the terms of the notice of motion. 

Bailey, Q. C, then asked that there might be an inspection 
of the mines. He referred to Bennitt v. Whltehouse, ^8 
Beav. 119; elTur., K S., 528; Lonsdale v. Curwen, 3 Bli. 158. 

Speed objected to an inspection, as it might be detrimental 
to the interests of the defendants. He also maintained that 
the court had no jurisdiction to make such an order in the 
present stage of the suit. 

The vice-chancellor said that, assuming, what he liad no 
doubt was the case, that the defendants were intending only 
to do what was right, it appeared prima facie to be as much 
for their benefit as for that of the plaintiff's tliat there should 
be an inspection. Bat it was not then a question whether it 
would be for their benefit or not; the question was, whether 
the court, at that stage of tlie suit, could order an inspection 
adversely. It appeared to him that it could not. The motion 
must therefore stand over on the undertaking which the de- 
fendants offered, to give time to answer the affidavits. 



30 iNSPECTIOJf. 

March 17. Bailet, Q. C, and Eddis now renewed their 
motion for an injunction, and also moved for an inspection. 
They cited, in addition to the cases above mentioned, Lt^icis 
V. Marsh, 8 Hare, 97; Attorney-General v. Chamlets, 12 
Beav. 159; Lowndes v. BMle, 10 L. T. Eep. X. S. 55; En- 
nor V. Barwell, 1 DeG. F. A: J. 130, and contended that the 
present was the stage of the suit at which tlie court could 
grant an inspection. 

A plan of tiie underground works was produced, and an 
affidavit of Mr. Tvrer, a mine surveyor, was read, by which it 
appeared that the bill had been tiled in consequence of Tvrer 
visiting the mines, as he had discovered that the defendants 
were working into the plaintiffs' barrier, the effect of which 
would be that the plaintiffs' mines would be flooded with 
water. 

Glasse, Q. C, and Speed, for the defendants, said that the 
motion was ex parte, as the exhibits had been obtained at 
Manchester ovily two days previously. The defendants had 
affidavits ready which would displace the plaintiffs' case on 
the question of title, but there had been no time to file them. 
The parties were rival colliers, the defendants having superior 
machinery, and the object of the plaintiffs in asking tor an 
inspection, was to view the mode of working, which the de- 
fendants were unwilling to disclose. 

Bailet, Q. C, in reply. 

The Yioe-Chaxcelloe. — In this case the affidavits of the 
plaintiffs show prima fade a right in the plaintiff's to their 
mines, and that the defendants are cutting into the barrier 
sun-onnding the plaintiffs' mine. jSTotice of motion was served' 
a fortnight ago, and the defendants, on the last seal day, asked 
for furtiier time to file affidavits, which was granted; bnt the 
affidavits have not yet been filed. There must be either an 
injunction or an interim order for an injunction. There is 
also the question, whether the plaintiffs ought to be at liberty 
to inspect the defendants' mines. The court must be made 
acquainted with the truth and materiality of the case, and it 
can only be satisfied of this, in a case like the present, by an 



Whaley v. Bkaxckee. 31 

inspection, eitlier by the plaintiffs or by competent persons 
employed by tliem; that is a course constantly taken to en- 
able the court to do justice. The statement about the 
plaintiffs being rival colliers, and ab'ont their motives, is only 
a suggestion, although it is not impossible that it may be the 
fact, but unless there be something very special in these mines 
it can hardly be so, as there is generally no variety in machin- 
ery used in collieries. If it is only a question of title, and the 
defendants admit the working, will they submit to an injunc- 
tion till the iiearingor further order? 

Glasse said they would admit the working, and would sub- 
mit tb au injunction till the hearing or further order. 

Bailey said the injunction would be no protection without 
the order to inspect. 

The Vice-Ohancellok. — If I had a plan before me showing 
clearly the present state of the workings and the defendants' 
counsel would admit that such plan was correct, I would not, 
as the defendants are willing to submit to the injunction till 
the hearing or further order, give leave to inspect, because I 
should then possess the requisite knowledge of what has been 
done; but that not being so, if the plaintiffs will undertake to 
answer any such damage as the court shall think fit to award 
by reason of granting the injunction, let there be an interim 
order in the terms of the notice of motion till the second day 
of sittings after the Easter vacation, and an order to inspect 
in the usual terms, the rest of the motion standing over till the 
first day of sittings after the Easter recess, with liberty to the 
defendants in the meantime on giving two days' notice, to bring 
on the motion and apply to discharge the order to view. 
Solicitors: Milne, Shaepe and Paekek. 



32 IXSPEGTIOJT. 

The Commonwealth v. CoNY^-GHAM et al, 

(66 Pennsylvania State, 99. Supreme Court, 1870.) 

Time for appointing' examiners— Construction of statute. The act of 

1S;0, providing for the safety of mines, tlirecte.l that upon the passage of 
the act examiners were to be appointed by the judges of the Common 
Pleas "at the fii-st term of the court in each year." At the time of 
the passage of tlie act the first term for that court in Luzerne county 
had passed. Held, that the examiners were to be appointed at the 
first term of the current year happsn'ng after the passage of the act. 

Terms and intent of tlie Safety Act stated and the statute construed so as 
to become definitely operative from the time of its passage. 

Bnle of constrnction. When a statute'gives a power, what is necessary to 
make it effectual is given by implication. 

May 2t, 1870. Before Tuompson, C. J., Agnkw and Shaes- 
wopD, JJ. 

This was an alternative mandamns, issued May 3, 1S70, 
upon tlie information of F. Carroll Brewster, Esq., Attorney- 
General, against John IST. Conyngham, President Judge, 
Edmund L. Dana, Additional Law Jndge, and Thomas Collins 
and Isaac S. Osterliont, Associate Judges of the Court of 
Common Pleas of Luzerne county. 

The information set out that hy the llth section of an act 
passed March 3, 1870 (Pamph. L. 3^, it was provided tliat 
upon its "passage," the governor should, "upon the recom- 
mendation of a board of examiners selected for that purpose, 
composed of three reputable coal miners in practice, and two 
reputable mining engineers, to be appointed b\- the judges of 
the^ Court of Common Pleas of Luzerne county, all of whom 
shall be sworn to a faithful disciiarge of their duties, appoint 
three properly qualified persons to fill the offices of inspectors 
of coal-mines and collieries, for the counties of Luzerne and 
Carbon, whose commissions shall be for the term of five years 
or during good behavior." * * * " The examiners provided 
for in this act shall be appointed by the judges of the Court 
of Common Pleas for the county, at the first term of the 
court in each year, to hold their places during the year, and 
vacancies shall be filled by the court as they occur." 



The Commonwealth v. Conyngham. 33 

By the 15th section of the said act it was provided tliat 
" the term of office of the inspector of coal mines, appointed 
under an act for the better reinitiation and ventilation of mines, 
and ibr the protection of the lives of the miners in the county 
of Schuylkill, approved April 12th, one thousand eight liun- 
dred and sixty-nine, shall expire on the first day of June, Anno 
Domini one thousand eight hundred and seventy, and in his 
room three inspectors of mines for the counties of Scljuylkill, 
Dauphin, Northumberland and Columbia, shall be appointed 
by examiners, to he appointed by the Court of Common Pleas 
of Schuylkill county, in the manner and form provided by 
the 14th section of tiiis act." 

That the respondents " have declined for the jJresent to 
make the appointment of the board of examiners for said 
county, as required by the aforesaid sections of the act." 

The respondents answered that tliey declined making the 
appointment, because the time had not arrived wlien the 
appointments could legally be made. Tlie first term of tiie 
Luzerne Common Pleas for 1870 commenced on the fir.~t 
Monday of January, then last past; the second term, on tlie 
third Monday of February; the third term, on the first 
Monday of April; that the application for tlie appointment 
of examiners was made at the third term of the year 1870, 
and the respondents refused to appoint for defect of present 
power, as they believed, because the first term of the court 
for 1870 had passed, and they could hot appoint till the first 
term of the next year. 

The attorney-general demurred to the answer. 

The Attoeney-Genebal, for the Commonwealth. — Statutes 
take effect from their date, unless it be otherwise provided: 
Braddee v. Brownfield^ 2 W. & S. 279; Jamieson v. Attor- 
ney-Oeneral, 1 Alcock & Napier, 375; Parker v. Attorney- 
General, 6 Erown, P. C. 486. Wherever two parts of a 
statute are contradictory, the court endeavors to give a dis- 
tinct interpretation to each of them by looking at the 
context: Pretty v. Solly, 26 Beav. 610; Kerliri, v. Bull, 1 
Dall. 178; Dwarris on Stat. 514, 517. 

VOL. Tin— 3 



34 Inspection. 

The opinion of the court was delivered, May 26, lSTO,by 
Thompson, C. J. 

The question presented in this case is sinorle, and not 
difficult The act of the General Assembly of the 3d of 
March, 1870, entitled "An act providing for the health 
and safety of persons employed in coal mines," provides 
for the appointment, by the governor, of three coal mine 
inspectors, for the counties of Luzerne and Carbon, upon 
the recommendation of a board of examiners to be appoint- 
ed by the Court of Common Pleas of Luzerne county. The 
14th section of the act provides for these appointments 
to be made by the governor " upon the passage of this act," 
but only upon the recommendation of the board of examiners. 
The examiners must be appointed by the court before they 
can recommend persons for appointment as inspectors. Tlie 
difficulty in the minds of the respondents, the judges of the 
Common Pleas of Luzerne county, lies in the following pro- 
vision contained in the section. It says, "the examiners 
provided for in this act shall be appointed by the judges at 
the first term of the court in each year," and as the act did 
not pass until after the first term of the court in Luzerne 
county had passed, they were of opinion that they had no 
power to appoint until the first term of the court in 1S71, 
and they therefore declined to appoint. 

This construction would defeat what seems to have been 
tlie manifest intention of the legislature in passing the act; 
namely, that it should go into operation immediately upon its 
passage. This very clearly appears in various provisions of 
the act. In the 14th section the governor is required " upon 
the passage of the act," subject of course to the time which 
may be required for the preliminary action of the board of ex- 
aminers, to appoint tlie inspectors provided for in the act This 
does not consist with the idea of waiting until another vear 
to enable the court to appoint examiners at the first term. 
In the 4th section there is a provision requiring action by the 
inspectors in superintending the construction or sinking of 
slopes or outlets in mines requiring them, which are to be 
constructed witliin four months after the passage of the act, 
on penalty of inability to the owners to employ minors and 



The Commonwealth v. Conyngham. 35 

■workmen unless in certain contingencies mentioned. This 
shows that it was designed that inspectors should be ap- 
pointed for this and other purposes at once. So in the re- 
quirement that the inspectors sliall be on hand to inspect the 
causes of loss of life wlien it occurs by explosions in mines, 
this is to be tlieir duty from and after the passage of tlie act, 
as it goes into operation from and after its passage; and so in 
regard to the 15th section of the Schuylkill Act. It is to ex- 
pire on the 1st of June, 1870, when inspectors are to be ap- 
pointed by the courts, under the provisions of the lith 
section of this act, for Schuylkill, Dauphin, Northumberland 
and Columbia counties. If no appointment of examiners can 
be made in Luzerne county, because the first term of the 
c lurt for the present year has passed by, it is likely the same 
thing exists in regard to those connties. Is it likely tliat 
such a cause of delay could have been a possible contingency 
in the legislative mind? We think not. As already said, 
the intention is manifest, not only in the provisions men- 
tioned, but in many others in the act — nay, throughout the 
entire act — that it was to go into full operation as soon as 
tlie organization of its machinery would permit. Wo must 
therefore construe the seemingly incongruous provisions no- 
ticed so as to harmonize with the general intent manifested 
in the whole enactment. We can do so without violence to 
any portion of it, we think, by holding the provision in ques- 
tion applicable to future years and not to the present. For 
the fraction of this year ensuing tlie passage of this act, the 
organization arid appointment of the examiners mentioned, 
were not referred to any period, excepting to the first term of 
the court after the passage of the act; thereafter, it is to be at 
the first term of the court in the year. This view enables the 
governor to appoint inspectors as required by the act, and put 
theintendcd reform of the mining police in operation. In this 
way, and in this alone, can the provisions of the act be 
harmonized, and the manifest intention of the legislature 
carried out. We may thus make the statute effectual for the 
purposes intended. Dwarris on Stat. 614-17, says, "Wher- 
ever a power is given by statute, everything necessary to the 
making it effectual is given by implication." We must, we 



36 Inspection. 

think, enter judgment for the Commonwealth on the de- 
mnrrer, and award a peremptory maadamiis against respond- 
ents. 

Ordered accordinghj. 



The Thomas Iron Company v. The Allentown 
Mining Company et al. 

^28 New Jei-sey Equity, 77. Court of Chancery, 1877.) 

Order for inspectinn granted irithoiit notice. The defendants being les- 
sees of a mine, entered upon the adjoining land belonging to the plaint- 
itf and sunk a shaft thereon and mined ore throug-h it, and having 
ceased operations, and being about to leave the mine, refused, on appli- 
cation, to p3rmit the p'aintiff to enter the mine for inspection. The 
plaintiff thereupon, without notice to the defendants, filed a bill for an in- 
junction requiring the defendants to permit the inspection, which was 
granted: Held, that the granting of the order for inspection being 
a matter of course on a prima facie case, notwithstanding a sworn de- 
nial of the defendants, it might at the discretion of the court be made 
without notice to the defendants, but it is the better practice to require 
notice, enjoining, in the meantime, so far as may be necessary to preserve 
the status quo. 

' Loss of surface support and floodings endangered by removing pillars. 
The defendants having worked out the main body of ore from the mine, 
proceeded to get ore by reducing the pillars which had been left for 
support, and thus endangered the caving of the surface and the flooding 
of the mine by letting the waters of a swamp 'into the workings, 
whence it would flow to plaintifi"s mine: Held, that an injunction to 
restrain defendants from weakening the supports was properly granted. 

Bill for relief and supplemental bill, answer and affidavits. 
Motion to dissolve injunctions and dismiss bill. 

J. Yanatta, for the motion. 

I. "W". ScuDDEE, A. G. RicHET and J. G. Shipman, contra. 

The Chanoelloe (Runton.) 

The original bill was tiled to restrain the defendants, the 

' Cfompton V. Lea, 6 M. R. 179. 



Thomas Iron Co. v. Allentown Mining Co. 37 

Bakers, lessors, and the Allentown Mining Company, lessees, 
from preventing the complainants from entering into the mine 
owned by the former, and leased to and worked by the latter, to 
inspect the workings so as to ascertain to what extent they 
had been done upon the mineral pi'operty of the complainants. 
The bill, which is duly veriiied, states that the Baker mine 
property and that of the Thomas company adjoin each other, 
and tliat before the filing of the bill the Allentown company 
had, without the authority or knowledge of the complainants, 
sunk a shaft in their mining operations upon the property of 
the complainants (as the latter had recently discovered), and 
had through it mined and taken to their own use from the 
complainants' property about 40,000 tons of ore; that they had, 
when the bill was filed, ceased their mining operations on both 
properties, and were about to leave them altogether, and that 
they and tlie Bakers had refused the complainants permission to 
go down the shaft and make an inspection, to ascertain what 
working had been done in the complainants' property. The bill 
prays an account, but its main object was to obtain the in- 
spection. On the filing of the' bill an injunction was issued 
restraining the defendants from preventing the complainants, 
their servants or agents, from entering the mine and remain- 
ing therein for the purpose of making explorations and surveys, 
to ascertain, as far as might be practicable, the amount of iron 
ore which had been taken from the mine (provided that they 
should not take possession of the mine, nor any part thereof, 
nor remain therein any longer than might be reasonably neces- 
sary for the above mentioned purposes, and that they should 
do no injury to the property or possession of the defendants, 
nor interfere with their business) and also from removing the 
pillars or supports in the mine, and from doing any other 
wrong or injury which wonld hinder or destroy the access to 
the mine, or hinder or prevent the free exploration and sur- 
vey thereof for the purposes above mentioned. The inspection 
was permitted under the ipjunction. 

The supplemental bill was filed to prevent the defendants 
from weakening the pillars and supports of their own mine, 
or their workings in the complainants' property, to such an 
extent as to endanger the caving in of the surface, and so fill- 
ing in the places worked as to let in the water from a swamp 



33 Inspection. 

over their mine, which would flood the complainants' mine 
property whieli had been worked by the defendant company. 
This bill was duly verified, and on it an injunction was issued, 
restraining the defendants from removing or weakening any 
of the pillars or supports of either of the mi~nes, tlieir own or 
the complainants, so as to endanger the falling of the eartli 
or mine roofs supported thereby. The defendants have an- 
swered the original bill, and now move to dissolve tlie injunc- 
tions and to dismiss the bills. Tiie injunction to restrain the 
defendants from preventing an inspection has served the pur- 
pose intended, and tiie motion to dissolve it is based on the 
ground that it was improvidently granted. That the case 
made by the bill warranted an injunction is too clear for dis- 
pute. If, as the bill alleged, tlie defendant company had en- 
tered upon the complainants' projjerty and there sunk a sliait 
and mined ore through it, and having ceased their operations, 
and being about to leave the mine; refused, on application, to 
permit tlie complainants to enter the mine for inspection, and 
the complainants were apprehensive, and had reason to appre- 
hend, that the defendants would destroy the evidence of their 
operations and so render it impossible for the complainants 
to obtain compensation or satisfaction in tlie premises, they 
were entitled to an injunction, at least to restrain the defend- 
ants from destroying the evidence, a thing which they might 
do under an honest but mistaken claim as to the Iboundaries 
of their property. It appears clearly tliat the defendants re- 
fused the complainants' perm'ission to make the inspection. 
On the 10th of June, 1S76, the engineer of the latter applied 
to the mining superintendent of tlie Allcntown Company, at 
the mine, for permission to enter the mine to make the inspec- 
tion. The superintendent replied that leave eonld not be 
granted witliout the consent of Mr. Baker, one of the lessors, 
and referred him to the latter accordingly. Mr. Baker says that 
on that day two agents or employes of the complainants asked 
him if he was willing that they sliould go down into the mine 
and look at it. He says he replied that they must go to the 
Allentown company, that he had nothing to do with it; that 
they then said they, had seen the superintendent of the Allen- 
town company and lie would not give them permission unless 
Mr. Baker gave it; and that he replied to that statement, " You 



Thomas Iron Co. v. Allentown Mining Co. 39 

must go to the Allen town company; they are lessees, and 
have all to do with it." He says that he further said that he 
would give no permission, but that if the AUentown company 
did so, he would make no objection to it. 

These statements, from tlie answer, fully corroborate the al- 
legation of the bill, that the defendants refused the complain- 
ants permission to make inspection. Nor is it alleged by the 
defendants that they were not fully aware of the reason for 
desiring to make the inspection. It would seem that it ought 
to be quite a matter of course for, the parties to allow an in- 
spection, on application^ under such circumstances. After a 
refusal under the circumstances as stated in the answer itself, 
it would be the duty of the court to secui'e to the com , Iain- 
ants the inspection, if satisfied of the hoiia fides of their appli- 
cation. But the defendants' counsel insists that the order 
(for such the injunction was practically) for inspection ought 
not to have been made without giving to the defendants air 
opportunity to be heard in relation to it; that is, it should 
not have been made except on notice. In a case like the 
present, where the application is for the inspection of a 
worked-out and almost abandoned mine, to ascertain the 
extent of tlie workings merely, and it appears that leave has 
been refused, the granting of the order for inspeetipn is, on 
the making out of Aprima facie case entitling the complain, 
ant to it, almost a matter of course. In Bennitt v. White- 
house, ^9> Beav. 119, the court (M. R) said: "Whenever it 
appears that a person has power to make use of his land to 
the injury of another, and there is prima facie evidence of 
his doing so, though it is contradicted, still as the only way 
of ascertaining the fact is by an inspection, the court always 
allows it, if it can be done without injury to the defendant." 
That was a case where the plaintiff and defendant were lessees 
of adjoining coal mines, and the former, having some reason 
to suspect that the latter was working from his own mine into 
the plaintiff's and taking coal therefrom, applied to him for 
leave to go down the pits into the defendant's colliery to 
inspect the working. The defendant denied altogether that 
he was working into the plaintiff's gallery and refused the 
permission. And he denied the trespass by his answer. The 
leave to inspect was granted, however. 



40 iNSPECTIOlSr. 

In Lewis v. Marsh, 8 Hare, 97, a lessor of a coal mine filed 
a bill ai^ainst his lessee for an acconnt, and to restrain him 
from working certain parts of the mine, the court (V. C. 
Wigram) based the oi-der on the ground of necessity. He 
SHvs: '• I think the case is one in whicli there is a necessity 
that the party should be allowed what he asks, iu order to 
prove his case. That is the meaning of necessity. A party 
can not get his rights without proving what his riulitsare, 
and it is inherent in tlie case that the plaintiff should have 
an opportunity of ascertaining that the defendants do not 
work more coal than they are entitled to. If there had been 
a shaft going thi-ongh the plaintiffs land, tliere would not be 
the slightest doubt as to the plaintiff's right to go down and 
inspect the works." See also, Ennor v. Barwell, 1 DeG., F. 
& J. 529. 

If the granting of the order for inspection is a matter of 
course on a prima faoi-e case, notwithstanding the sworn 
denial of the defendant, it would seem that it might, at the dis- 
cretion of the court, be made without notice to the defend- 
ant. It is undoubtedly, however, the better practice to re- 
quire notice, enjoining, in the meantime, so far as may be 
necessary to preserve the statxis quo. 

The injunction to restrain the defendants from weakening 
the supports of their mine to such an extent as to endanger 
the caving iu of the surface, and especially the flooding of 
the mines with the water of theswamp, was a proper exercise 
of the power of the court. The bill and the affidavits of ver- 
ification show reasonable ground of apprehension lest, through 
the weakening of the supports, the surface should cave in and 
let the water of the swamp into the defendants' mine, whence 
it would flow into the mine of the complainants. Were it to 
do so, it is alleged that it vvould cause damage to the com- 
plainants to the amount of $50,000. 

The defendants' mine was, when the bill was filed, worked 
out, and the lessees, the AUentown company, were getting 
ore by means of the reduction of the pillars which had been 
left for support, and they proposed to continue doing so to the 
end of their term, whicli was some months distant. The 
complainants allege that the defendant company, under their 
lease, have mined to a great extent upon the complainants' 



Ex Parte Deidesheimek. 41 

land. The Bakers, as lessors, have had the benefit of the 
trespass, if such there has been, in the royalty paid them by 
their lessees. If tlie defendants have indeed thus trespassed 
upon and opened the ootnplainants' land, it is uo stretch of 
authority toproliibit them from such a use of their own prop- 
erty as will inflict damage on tiiatof the complainants. And 
even if the complainants' mine at the JBaker line iiad been 
opened by themselves, it would have been the duty of the 
court to have protected tiiein from this tlireateued injury 
under the circumstances. The maxim, sic utere tuo ut alie- 
num non Iwdas, would have furnished sufficient ground for 
such relief. Tiie defendants have, on the case made by the 
complainants, opened and worked the mine on the land of the 
latter in connection with the mine on their own property. If - 
the latter is flooded, the former must be; and the court will 
not, in such a case, hesitate to restrain the trespasser from an 
act which will inflict such an injury on the property on wliich 
he has trespassed. Tiie aflidavits on the part of the defend- 
ants do not overthrow the cise made by the complainants for 
the injunction. 

The motion to'dissolve must be denied, with costs. Nor 
can the motion to dismiss the bills prevail. It is based on the 
ground that the complainants have an adequate remedy at 
law. The original and supplemental bills are both injunction 
bills. The latter seeks no other relief. The former prays an 
account, indeed, but it is in fact filed for the purpose of ob- 
taining an inspection and discovery. As to all other relief, 
the complainants submit themselves to the direction of the 
court. 



Ex Pakte Deidesheimee. 

(14 Nevada, 311. Supreme Court, 1879.) 

Superintendent of mine refiisini^ admission to stoclcliolder. By certain 
acts of the legislature of Nevada, Stat. 1877, 80, Stat. 1879, 67, to 
protect the rights of stockholders in the mines of that State, it is made 



42 liN'SPECTION. 

the duty of the supovintendent of a mine to keep posted in some 
conspicuous place at or ny.ir thK mine, theday of the week on wh'ch au- 
thorizad stockholders may be admitted; and a failure to comply with 
any of the conditions mentioned in the act is di?clared to be a misde- 
meanor. Held, tliat the statute ilo-s not command the sup H-Mitendent 
to admit stockholders, nor is he in term-" forbidden tu refuse mhuission,^ 
and such refusal can not by implication be construed into a violation oi 
the statute. 
Strict construction of penal statutes. Penal laws generally prescribe 
what shall or shall not be done, and then d'Tlare the consequences of a 
violation of either requirement. They should be plainly written, so that 
every person may know with certainty what acts or omissions constitute 
the crime. 

Habeas Corpus. The facts appear in the opinion. 

B. C. WiiiTMAN and 0. J. Hilt.yke, for petitioner. 

Stonk & liiLES, Skei.ky & WooDBURN, and M. A. Moki'iit, 
Attorney-General, for the State. 

By the Court, Leonard, J. 

The petitioner, Philipp Deideslieimer, is brouglit before me 
in cliambers on habeas corpus, witli a return showing lie was 
arrested and is detained under a warrant of arrest issiied by 
Thomas Moses, justice of the jieace of Township No. 1, Storey 
county, by James .Tewell, constable of said township. There 
is no dispute as to the facts, which are as follows: 

On the twonty-eighth day of July, 1879, the petitioner was 
the duly qualified and acting superintendent of the Hale and 
Norcross Mining Company, a foreign corporation incorporated 
for the purpose of working upon and mining in the Comstock 
lode, in Storey county, and on that day A. B. Thom]ison, who, 
as owner and a!i;ent, was possessed of oUe fifth of one per cent. 
of the original capital stock of said corporation, applied to 
said justice, nnder and in accordance with the provisions of 
section 1 of the statute hereafter noticed, found on page 57, 
statutes of 1879, for an order to examine the shafts, adits and 
hoisting works of the mine of said corporation. Thereupon 
the justice delivered to Thompson an order directed to peti- 
tioner as superintendent, commanding liiin " to admit Thomp- 



Es Parte Deidesheimee. 43 

son into said mine and permit him to examine fully all parts 
of the shafts, adits, borings, drifts, stopes, winzes, hoisting 
apparatus and every and all properties and appurtenances be- 
longing to said raining company." Tliereafter, on said day- 
Thompson presented the order to petitioner at the mine of the 
company, and demanded to be admitted. Petitioner then 
and there refused to comply with tiie order, or any part there- 
of. At the time of the application and refusal just mentioned, 
there was posted in a conspicuous place at the mine, a notice, 
of which the following is a copy: 

"Virginia, Nevada — ^Notice! In compliance with the 
provisions of the act of the legislature of the State of Nevada, 
touching the examination of mines, etc., Monday is named as 
the day of the week in which autliorized stockholders may be 
admitted under the provisions of said act. 

" Philipp Deidesi-ieimke, Snp't." 

It is admitted that petitioner complied with the law in re- 
lation to posting notice. 

A complaint upon oath was thereupon laid before the jus- 
tice, charging petitioner with the crime of refusing him, the 
said Thompson, admittance to the underground works and 
mine of the Jiale and Norcross Mining Company, upon the 
Comstock lode, in Storey county, Nevada, contrary to the 
provisions of an act of the legislature of the State of Nevada, 
entitled " An act to amend an act, entitled 'An act to protect 
the rights of owners of stock shares and other interests in the 
mineral and metal yielding mities of this State.' Approved 
February 21, 1877." A warrant of arrest was issued and 
placed in the hands of the constable, who arrested petitioner, 
and he is now detained under said writ. Tiie warrant is con- 
ceded to be in due form; but it is alleged in the petition, and 
claimed by counsel for petitioner, that such warrant was and 
is without authority of law. 

It is said by counsel for the State, that if petitioner is dis- 
charged, the order therefor must be based upon some one 
or more of the grounds set out in section 20 of the Habeas 
Corpus Act (Stat. 1862, p. 100); that he must bring his case 
within either or both of subdivisions fourth and sixth of such 
section, which provide that the petitioner may be discharged. 
* * * « fourth — When the process, though proper in 



44 Inspection. 

form, has been issued in a ease not allowed by law." * * * 
" Sixth— "Where the process is not authorized by any judg- 
ment, order or decree of any court, nor by any provision of 
law." 

As I view the case, it may be decided by asldng and answer- 
ing the question submitted by counsel for the State as the 
main one in controversy, to wit: " Was this warrant issued in 
a case allowed by law, or is the process authorized by any pro- 
vision of law? " 

The original statute, entitled " An act to protect the rights 
of owners of stock shares and other interests in the mineral 
and metal-yielding mines of tliis State," was passed and ap 
proved in 1877. (Stat. 1877, p. 80.) 

In 1879, section 1 of the statute just referred to was 
amended, but section 5 was not amended or rfe-enacted. 

It is urged by counsel for petitioner, that section 5 of the 
statute of 1877 only attaches to a violation of the provisions 
or conditions of section I'of that act, and that it does not at- 
tach or apply to a violation of the provisions or conditions of 
section 1, as amended in 1879. In my opinion section 1 as 
amended, and section 5 in the original act, must be construed 
together, as though the former had been incorporated in the 
prior act at the time of its adoption: Holbrook y. Nichol, 
36 111. 161; MoKibben v. Lestor, 9 Ohio St. 627; Sedgwick 
on the Construction Stat. Law, 68. 

For the purposes of this case, section 1 of the statute of 
1879, and section 5 of the statute of 1877, maybe epitomized 
as follows: 

" Section 1. Any person being the bona fid", owner of one 
fifth of one per cent, of the original capital stock of any com- 
pany incorporated for the purpose of working upon and min- 
ing in any lode * * * of precious or useful metals in this 
State, and any number of persons being the bomifide owners, 
in the aggregate, of such amount of stock, at the time appli- 
cation for a permit to examine any such mine shall be made, 
such owner or owners, upon a written order from the county 
clerk or justice of the peace, * * * shall be entitled to the 
privilege of fully examining all of the shafts, adits, borings ' 
drifts, stopes, hoisting apparatus, and every and all properties 
and appurtenances belonging to such mining comj)auy; pro- 



Ex Parte Deidesheimer. 45 

vided, that not more than one owner of said percen tage or aggre- 
gate percentages of snch mining stock sliall, cither in person 
or by agent, be entitled to such order * * * oftener tlian 
twice in one month; these days shall not he more than four- 
teen nor less than fifteen days apart. It shall he the duty 
of the superintendent or other person or parties in charge of 
liny incorporated mi/ning claim * * * #o keep posted in 
some conspicuous place at or near the mine, the day of the 
week in which authorised stockholders may he admitted un- 
der the provisions of this act.'' 

"Sac. 5. Any mining superintendent, or mining foreman, 
or mining secretary, of any incorporated mining compaay in 
this State, acting under and for such mining ctJmpany, who 
shall fail or refuse to comply with any of the conditions 
'mentioned in section 1 of this act, shall, for each and every 
' suchfailure or refusal, be deemed guilty of a misdemeanor,''' 
etc. 

It is clairaedon the part of petitioner that the only condi 
tion'or duty imposed upon him is tliat he shall post the no- 
tice, and tiiat, Inasmuch as he did that, he is gnilty of no crime 
under the statute, either by neglect or refusal; that in addi- 
tion, the first section is only a declaration of the rights of cer- 
tain stockiiolders, and that if those rights are infringed the 
remedy is against the company and not the superintendent. 
In a word, it is claimed that the superintendent has not vio- 
lated any of the conditions or provisions of section 1. On the 
other hand it is urged by counsel for the State, that the ''con- 
ditions" referred to in tlie fifth section are the performance 
of two obligations or duties by the superintendent, viz. : First, 
to post the notice, which is required in express terms; and, sec- 
ond, to admit the stockiiolders, whicli is required by necessary 
implication. 

The last part of section 1, in relation to posting the notice, 
may be disregarded; because, if that is the "condition" in-, 
tended in section 5, it is admitted that petitioner has fully 
complied therewith. I have nothing to do with the policy of 
the law under examination. My duty is limited to a consid- 
eration of the question whether or not the petitioner is unlaw- 
fully restrained of his liberty, nnder and by virtue of the 
warrant of arrest above mentioned; and the sohition of this 



46 Inspection. 

question for or against him depends entirely upon tlie conclu. 
sion arrived at in answer to the further inquiry: Was liis 
refusal to adnut Thompson a violation of any of tlie conditions 
or provisions of section 1? In other vpords, is it a provision 
or coudition of section 1 that the superintendent in charge 
shallUdtnit the qualified stockholders? 

As before stated, it is admitted by counsel for the State 
that if the admission of qualified stockholders by the superin- 
tendent is one of the "conditions " referred to in section 5, it 
becomes so by necessary implication rather than by express 
words. And if such admiss'on is a plain duty wliich the 
superintendent can not fail or refuse to perform without being 
guilty of a misdemeauor, it becomes so only by reason of the 
declaration that " such owner or owners * * * shall be 
entitled to the privilege of fully examining all the shafts * 
* * and every and all properties and appurtenances belong- 
ing to any such mining company." 

The statute m-ikes the posting of notice the superintend- 
ent's plain duty; but he is not comm.inded to admit stock- 
holders, nor is he in terms forbidden to refuse admission. 
Penal laws generally prescribe what shall or shall not be done, 
and then declare the consequences of a violation of either 
requirement. 

They should be plainly written, so that every person may 
know with certainty what acts or omissions constitute the 
Crime: Bish. on Stat. Crimes, Sec. 193; Beccaria on Crimes, 
22, 45; The Schooner Enterprise, 1 Paine, 33. 

Beccaria says :" I do not know of any exception to this 
general axiom, that every member of the society should know 
when he is a criminal and when innocent." (45.) 

"There is nothing more dangerous than thecommon axiom, 
the spirit of the laws is to be considered. To adopt it is to 
give way to the torrent of opinions. This may seem a paradox 
to vulgar minds, which are more strongly affected by the 
smallest disorder before their eyes than by the most perni- 
ciouB, though remote, consequences produced by one false 
principle adopted by a nation. Our knowledge is in propor- 
tion to the number of our ideas. The more complex these 
are, the greater is the variety of positions in which they may 
be considered. Every man hath his own particular point of 



Ex Parte Deidesheimee. 47 

view, and at different times sees tiie same objects in very dif- 
ferent liglits. Tiie spirit of the laws will then be the result 
of the good or bad logic of the judge; and this will depend on 
his good or bad digestion, on the violence of his passions, on 
the rank and condition of the accused, or on his connection 
with the judge, and on all those circumstances which change 
the appearance of objects in the fluctuating mind of man. 
Hence we see the fate of a delinquent changed many times in 
passing through the different courts of judicature, and his 
life and liberty victims to the false ideas or ill hnmor of the 
judge, who mistakes the vague result of his own confused 
reasoning for the just interpretation of the laws. We see the 
same crimes punished in a ditferent manner at different times 
in the same tribunals; the consequence of not having con- 
sulted the constant and invariable voice of the laws, but the 
erring instability of arbitrary interpretation." (i32.) 

In the case of The Schooner Enterprise, Mr. Justice Liv- 
ingston used the following language: "The act, and partic- 
ularly that part of it under which a forfeiture is claimed, 
is highly penal, and must, therefore, be construed as such 
laws always have been and ever should be. But while 
it is said that penal statutes are to receive a strict con- 
struction, nothing more is meant than that they shall not, 
by what may be thought their spirit of equity, be extended to 
offenses other than those which are specially and clearly de- 
scribed and provided for. A" court is not, therefore, as the 
appellant supposes, preclnded from inqniring into the inten- 
tion of the legislature. However clearly a law be expressed, 
this must ever, more or less, be a matter of inquiry. A court 
is not, however, permitted to arrive at this intention by mere 
conjecture, but it is to collect it from the object which the 
legislature had in view and the expressions used, which, should 
be competent and proper to apprise the community at large 
of the rule which it is intended to prescribe for their govern- 
ment." * * * " If it be the duty of a jury to acquit 
where such doubts exist concerning a fact, it is equally in- 
cumbent on a judge not to apply the law to a case where he 
labors under the same uncertainty as to the meaning of the 
legislature." * * * "The attention of the court has been 
called to a history of the progress of the several laws relating 



48 IliTSPECTION. 

to the embargo, and to the mischiefs which were unprovided 
for, at the time of tlie passage of the one nnder consideration, 
in order to show what was intended by the legislature. Al- 
most every possible evasion, it is said, had been previously 
guarded against by adequate sanctions, except that of loading 
clandestinely or by niglit, and then watching an opportunity 
of going to sea without a clearance, or giving bonds, which 
was the evil to which it was intended to apply a remedy. Be 
it so. This may have been in the contemplation of Congress, 
but we are not bound to conclude that they have done what 
was intended, unless fit words be used for the purpose." 

And in the United States v. Wiltherger, 5 "Wheat. 76, (opin- 
ion by Chief Justice Marshall,) the court says: " It has been 
said that although penal laws are to be construed strictly, the 
intention of the legislature must govern in their construction. 
That if a case be within the intention, it must be considered 
within the letter of the statute. So if it be within the reason of 
the statute. The rule that penal laws are to be construed strictly 
is perhaps not much less old than construction itself. It is 
founded on the tenderness of tlie law for the rights of indi- 
viduals, and on the plain principle that the power of punish- 
ment is vested in the legislative, not in the judicial depart- 
ment. It is the legislature, not the court, which is to define 
a crime and ordain its punishment. * * The intention of 
the legislature is to be collected from the words they employ. 
Where there is no ambiguity in the words, there is no room 
for construction. The case must be a strong one indeed 
which would justify a court in departing from theplain mean- 
ing of the words, especially in a penal act, in search of an in- 
tention which the words themselves do not suggest. To de- 
termine that a case is within the intention of a statute, its 
language must authorize us to say so." See also, Sedo-wick 
on Construction of Stat, and Const. Law, 279, et seq.; Smith's 
Commentaries, Sec. 746; Bish. ou Stat. Crimes, Sec, 192, et 
seq. I 

In Jones v. Smart, 1 T. E. 52, Buller, Justice, says: " Wei 
are bound to take an act of Parliament as they have made it; 
a casus omissus can in no case be supplied by a court of law, 
for that would be to make laws." 

Mr. DvvarrJs says: "The result is, that to brino- a case 



Ex Paete Deidesheimee. 49 

■within tlie statute it should be not only within the miscliief 
contemplated by the legislature, but also within the plain, 
intelligible import of the words of the act of Parliament." 
Dwarris on Statutes,. 711. 

That such should be, and is, the fundamental rule in rela- 
tion to penal statutes admits of no doubt. Nor are tbe cases 
cited by counsel for the State in any manner opposed to the 
rules stated above. See United States w Winn, 3 Sumner, 
'209; TJie Emily and The Caroline, 9 Wheat. 381. 

There can be no better example of the great danger of re- 
sorting to implications in order to find that a crime has bee!) 
committed than the argument of counsel for the State in tliis 
case. They say: "There are many acts in connection with 
the visit of the stockliolders to the mine, wliich the statute 
only impliedly makes it the duty of the superintendent to per- 
form; as, for example, to furnish the stockholder with the 
machinery and appliances usually had and used in and about 
the mine for a^cendingand descending the shaft, and, if neces- 
sary, to furnish him with a proper guide to assist Aim in ex- 
amining the shafts, adits, borings, drifts, stapes, hoisting ap- 
pa/rativs, and every and all properties and appurtenances he- 
longing to such mining company; and if he should fail or 
refuse to perform such acts, he would he violating the statute, 
although the doing of such acts is not enjoined upon him hy 
the express terms of the act." 

I do not intend to intimate whether it would be the super- 
intendent's duty to furnish any or all the means of examina- 
tion suggested by counsel, if it be true that in a criminal case 
implied duties maybe multiplied, as counsel claim. This 
argument is referred to only to show the danger of finding 
a statutory crime where the words do not plainly authorize it. 
If counsel are correct, what superintendent could ever know 
when he is within or without the statute? One stockholder 
might demand one thing and another something else. If tlie 
superintendent must furnish a guide, although nothing is said 
about it in the law, why should he not, with equal propriety, 
be required to furnish rubber coats and boots^ if the mine is 
wet, and such articles are used in the mine? 

If he can not go to the law and there find what is required 

VOL. VIII— 4 



■60 Inspection-. 

of liim, or what he is prohibited from doing, his only safe 
course would be to coinplj' witli every request made; for 
should he fail or refuse to comply, if counsel are correct, it 
might be decided that he refused to perform an implied duty, 
which is one of the conditions of section 1. Suppose we had 
this statute in substance: 

Section 1. Every county assessor, before maldng an assess- 
ment shall be entitled to thie privilege of examining the books 
of all tirms, corporations and individuals selling merchandise 
within his county. 

Sec. 2. Any person having charge of such business, 
whether principal, agent or superintendent, who shall fail or 
refuse to comply with the conditions of section 1, shall be 
deemed guilty of a misdemeanor and be punished, etc. 

Under that statute, the assessor goes to a Chinese corpora- 
tion selling merchandise, and demands of the person in 
charge the privilege of examining the books. They are pro 
duced, but are kept in the Chinese language. , The assessor, 
being unable to understand the Chinese method of book- 
k3epin.r, demands an interpreter, upon the ground that it is 
an implied duty on the part of the coi'poration to furnish 
one. 

Even admitting that implied duties or prohibitions, within 
reasonable limits, may be considered in relation to penal stat- 
utes, in my opinion it is not such duty to furnish a guide in 
tiie one place or an interpreter in the other. But other jndges 
might think otherwise, and thus we see some of the evils lia- 
ble to arise from an equitable rather than a strict construction 
of penal statutes — some of the evils so vividly portrayed by Bec- 
caria; thus we see that superintendents wonld be in continual 
doubt as to their duties, and, consequently, would not know 
with certainty when they could with impunity refuse a stock, 
holder's request. The legislature may have intended to re- 
quire of the superintendent all that is claimed by counsel for 
the State; but if such was the intention, they failed to use any 
fit words expressing the same. In their absence I am unable to 
arrive at the conclusion that the petitioner committed any of- 
fense in refusing to admit the complainant to the Plalc & Nor- 
cross mine and works. It follows that he is detained without 
authority of law and must be discharged. I am permitted to 



Ex Parte Deidesheimek. 51 

add, that in the above construction of the statutes referred to, 
my associates fully concur. 

The petitioner is discharged. 



1. For instance of inspection and view, with excavation, at a cosl and to a 
degree amounting to oppression, see Stockbridge Co. v. Cone Works, 6 M. 
R. 317. 

2. New trial granted on account of jury, on inspection, being treated by 
the successful party: Sacramento Co. v. Showers, 6 Nev. 291. See 
SchissUr v. Chesshive, 5 M. R. 809. 

3. Each associate has the right to inspect the partnership books: Bute v. 
Stuart, 12 L. J., Ch. 140; Maden v. Veevers, 7 Beav. 489. 

4. The court may order inspection of mines: Ennor v. Barwell, 1 DeU. 
F. & J. 529; Post PLBADCNa: And asurvey and plat: Atfy Gen. v. Cham- 
bers, 12 Beav. 129. 

5. Inspection, with injunction, and cost of searching out the holes which 
caused flooding: Plant v. Stott, 6 M. R. 175. 

6. Surface owners allowed to inspect mines, for protection of building: 
DugdaU v. Robertson, 3 Kay & J. 695. Post Subface Suppobt. 



52 Instroke. 

Whalley v. Kamage. 

(10 Weekly Reporter, 315. Superior Court of Equity, 1862.) 

Mode of working' mine. In the absence of express) contract, the lessee of 
a mine is entitled to work the minerals by " instroke." 

In this case, which involved various complicated questions 
as to the working of certain mines, held under an agreement 
for a lease to be granted hy the plaintiff, the following point 
was decided, the importance of which arose from the mode of 
working carried on by the lessees, who had thus been enabled 
to escape payment of tolls for carriage of minerals over a 
railway of the plaintiff. 

Daniel, Q, C, and G. Osboene Moegan, for the plaintiff. 

KoLT, Q. C, and Cotton, for the defendant. 

Wood, V. C, held, that in the absence of express contract, 
the lessee of amine has a right to work the minerals bv 
" instroke," that is, by or through pits sunk upon adjoining 
lands held by the lessee under a different lessor.' 

' See " Bainbvidge on Mines," p. 90 (2d Ed.), where the terms " instroke" 
and "outstroke" are explained: also Rogers, 4C3. 



1. Lessees may rightfully work by instroke: Lewis v. Fothergill, L. R. 5, 
Ch. App. 108; Post WoKKiNGs; Jegon v. Vivian, L. E. 6, Ch. App. 742; 
Post Lease. 

2. Instroke is a workmanlike me^ns of mining : Jegon v. Vivian, supra. 



Lycoming Insurance Co. v. Schwenk. 53 



The Lycoming Fire Insurance Company v. 
Schwenk et al. 

(95 Pennsylvania State, 89; 40 Am. Rep. 629. Supreme Court, 1880.) 

Policy avoided by riot. A policy of insurance provided that the company 
should not be liable "for any loss or damage by fire caused by means 
of an invasion, insurrection, riot, civil commotion or military usurped 
power." Held, that where a breaker at a coal mine was set on fire at 
night by a party of men who fired a number of shots, drove the watch- 
man away and then burned the breaker, there was a riot within the 
meaning of the policy. 

Arson defined into a riot. The burning of a coal breaker by a band of 
men who discharge fire-arms and drive away the watchman is a riot, al- 
though the element of a turbulent disturbance of the public peace may 
be wanting. 

June 7, 1880. Before Shaeswood, C. J., Mbbour, Goedon, 

PaXON, TeuNKEY, StEEEKTT aildGEEEN, J J. 

Error to the Court of Common Pleas of IsTorthu mberland 
County, of May term, 1880. No. 135. 

Covenant by William Schwenk and Jacob Geise, trading as 
William Schwenk & Co., 'for the use of Henry Saylor, against 
the Lycoming Fire Insurance Company, upon a policy of 
insurance upon a coal breaker and macliinery near Mount 
Carmel, in Northumberland county. 

The defendant pleaded: 

1. Tiiat the property alleged in the declaration to have 
been burned and destroyed by fire " was burnt and destroyed 
by rioters in the perpetration of a riot, and not in any other 
manner;" 2. That tlie burning and destruction of the said 
property "was caused by means of a riot and not in any other 
manner;" 3. That the burning and destruction of the said 
property " was caused by means of a civil commotion, and not 
in any other manner." The defendant pleaded further " non 
est factum, covenants performed absque hoc and nil debet.'' 

It was provided by the policy that the defendant should 
not be liable by virtue of this policy "for any loss or damage 



54 Insueance. 

by fire caused by means of an invasion, insurrection, riot, 
civil commotion, or military or usurped power," and also that 
"persons sustaining loss by fire or lightning, under a policy, 
shall give notice thereof forthwith to the secretary, and with- 
in thirty days of said loss deliver to the secretary a particu- 
lar account and proof thereof, signed and sworn to by them, 
setting forth among other things: " sixth, the date of the loss 
and the amount thereof; seventh, how the fire originated, so 
far as said persons know or believe." A fire occurred on tlve 
third of June, 1375, and a statement of the loss, sworn to by 
"William Schwenk, on the 22d of June, 1875, purporting to 
give a particular account of the loss and the origin of the fii'e 
was sent to the secretary of the company, in which among other 
things was tlie following: "A fire occurred on the third of 
June, 1575, at about the hour of ten o'clock, p. m., anl 
originat-ed as follows, viz.: Of my own personal knowledge I 
do not know, but the two watchtnen who were in charge of tlio 
premises say that about seventy-five men came to the breaker, 
and while some stationed themselves as pickets, others carried 
wood for kindling; to the boiler-house and after saturating the 
wood and parts of the building with coal oil, set fire to it, and 
then remained and guarded the premises until they wore sat- 
isfied that destruction to the breaker was certain." No notice 
of any other cause of the fire was ever given to the company, 
and on the trial the defendant contended that this w.u notice 
that the property was burned an-d destroyed by means of a 
riot, and also proved by the watchmen and others that the 
property was set on fire and destroyed in the manner stated 
in the notice. 

The sixth and seventh points of the defendant with the an- 
swers of the court thereto were as follows: 

6. That if the jury believed that the breaker was de- 
stroyed by fire in the manner testified by Timothy Adams, 
their verdict onght to be in favor of the defendant. 

Ans. " I can not charge yon as requested as a matter of 
law, but say to you that I have already in the general 
charge defined the offense of riot, and have just told you, in 
answer to the foregoing points of the defendant, what cir- 
cumstaucGS would be deemed a riot so as to constitute a 
defense to the plaintiff's claim, and I now submit the tes- 



Lycoming Insurance Co. v. Schwenk. 55 

■ tiirionj of this witness witli all the other evidence in the 
case to you, from which you are to find the facts." 10th assign- 
ment of error. 

7. Tl)at if the jury believed that the breaker was destroyed 
by fire and in the manner testified by Albert Ford, their ver- 
dict ought to be in favor of 'the defendants. 

Ans. "I can not charge you as requested in this point as 
a matter of law, but say to you that I have already in the 
general charge defined the oifense of riot, and liave just told 
yon, in answer to the foregoing points of the defendant, what 
circumstances would be deemed a riot so as to constitute a 
defense to the plaintiff's claim, and I now submit the testi- 
mony of this witness with all the other evidence in the case to 
you, from which you are to find the facts." lltli assignment 
of error. 

The material portions of the testimony of Adams and Ford 
will be found in the opinion of this court. In the general 
charge the court, Eockkfellek, P. J., inter alia, said: 

["For tlie present 1 will say to you that a riot at common 
law is the tumultuous disturbance of the puijlic.peace by three 
persons or more, assembling together of their own authority, 
with tlie intent mutually to assist one another against any who 
shall oppose them in the execution of some private object, and 
afterward executing the same in a violent and turbulent man- 
ner, to the terror of the people, whether the act intended is 
lawful or unlawful.] First assignment of error. [In order to 
prove a riot it is necessary at common law to prove on the 
trial a previous unlawful assembling. It must be shown that 
the assembling was accompanied with some such circum- 
stances, either of actual force or violence, or at least by such 
apparent tendency thereto as would inspire the people with 
terror, such as being armed, using threatening speeches, tur- 
bulent gestures or the like. If the assetnbling of persons be 
not accompanied with such circumstances as these, it can not 
be deemed a riot, however unlawful the acts which they actu- 
ally committed.] Second assignment. 

[•'Then at common law it was also necessary that there 
should be a tumultuous disturbance of the public peace. Bj 
that is meant, we think, a violent, turbulent, disorderly and 
noisy disturbance of the public peace.] Third assignment. 



56 iNSUKAlSrCE. 

Tlien this disturbance must be by three or more persf'ns, and 
they must have assembled together of tlieir own authority, 
with the intent mutually to assist one another against all per- 
sons who mightoppose them in the execution of some private 
object, as for instance, in the burning down of some building 
or anything of that kind. Then it must be shown that they 
afterward actually did execute this object in a violent and 
turbulent manner, to the terror of the people. 

" While the law is for the court to determine, and you are 
bound by the instructions of the court on questions of law, 
yet you are to determine the facts from the evidence in the 
case, and j'ou must have reference in making up your verdict 
to all the facts and circumstances in the evidence. 

" Then if you believe the evidence, di the night of the 3d 
of June, 1875, the plaintiffs' property was destroyed by fire. 
You will recollect the testimony of the witnesses on the sub- 
ject as to what took place at the time that the pro]>3rty was 
destroyed, for which the plaintiffs seek to recover the insur- 
ance in this case. Timothy Adams stated 'that he was there, 
employed by the plaintiffs, William Schwenk & Co., as watch- 
man; that on the third of June, at about eleven o'clock at 
night, heheai'd a noise in the bush, a rustling in the leaves. 
He didn't know for certain what was there, but he fired his gun, 
and immediately after iiis firing, it was returned by another, 
proceeding from the direction of this noise in the woods, and 
presently by another shot, and then in a short time he says 
there was a volley fired. At one time he said there might 
have been fifty or seventy shots, and again he said that there 
might have been only four or five, six, seven or eight. What is 
meant by a volley was the firing of a number of shots. Then, 
he says, presently a number of men, probably seven or eight, 
came out to the breaker and he heard them talking. He was 
up on the plain of the breaker above them and he heard one 
of them asking for son.-* wood and another asking for some 
coal oil; soon after that the breaker was on fire. He doesn't 
speak of any noise having been made by these men except the 
firing of the pistols, as he thought, previous to the time of 
setting fii'e to the breaker. He moved on down the plain and 
finally got inside of the drift and remained there a short time, 
when he. saw the men going away. He doesn't speak of their 
having made any noise at the time they were o-oino- away. 



Lycoming Insurance Co. v. Schwenk. 57 

" Tlien you lieai-d the testimony of Alfred and Joseph Ford 
and Harriet Farley, all persons who were in the neighborhood 
the evening of this fire, and you will determine from these 
witnesses whs^t actually did occur on that occasion — Young 
Mr. Ford that he saw the men coming down the railroad; that 
he heard them talking loudly. 

" [You will take into consideration all the evidence. "VV^as 
this a riot? Was this a tumultuous disturbance of the public 
peace by three or more persons assembled there together of 
their own authority, with intent mutually to assist one anoth- 
er against any who^ should oppose them in the execution of - 
their purposes, or in the burning of the breaker or other prop- 
erty? Did they burn the breaker and other property in a vio- 
lent and turbulent manner, to the terror of the people?] 4th 
assignment. You heard the testimony, so far as terror is con- 
cerned, of Harriet Farley. She was on her way home from 
Mount Carmel; she testified as to what she heard and saw. 
You heard the testimony of Alfred Ford in regard to whether 
he was put in terror, and the testimony of Timotliy Adams on 
the same subject. [You will determine from all the evidence 
whether the acts of shooting and the noise that was created by 
the firing of the building were violent and turbulent acts, and 
whether they were to the terror of the people. We think 
that it is not necessary that there should have been shouting 
or blowing of horns; that the noise caused by the sliooting 
off of guns and pistols would be a tumultuous disturbance of 
the public peace.]" 

The 12th assignment of error was as follows: 

"Because the general charge of the court as to what con- 
stitutes a riot, differs from, and is in conflict with, the law as is 
stated by the court, by affirming the third and fifth points of 
the defendant below, which the court below affirmed to be 
correct to such a degree as to be contradictory and irreconcil- 
able, and this contradiction tended to confuse and mislead 
the jury, and prevented them from obtaining from the charge 
any idea of what is necessary in law to constitute a riot, to- 
wit, the court in their general cjiarge say, ' Then at common 
law it was also necessary that there should be a tumultuous dis- 
turbance of the public peace. By that is meant, as we think, 
a violent, turbulent, disorderly and noisy disturbance of the 
public peace, etc' " 



58 Insurance. 

The following' are the third and fifth points, with tlio an- 
swers' of the conrt: 

3. " Tiuit if any persons to tlie number of three or more 
shall meet togetiier with oinbs, staves or other hurtful weap- 
ons, to the terror of the peaceable people or inhabitants of 
this commonwealth, and shall commit or design to commit 
violence or injury upon the persons or goods of any of the 
said iniiabitants, such persons are guilty of riot." 

lins." " I answer this point as requested." 

5. That noise is not a necessary element of a riot, nor is 
it necessary that any person should be put in actual fear, but 
if a number of men, to the number of three or more, banded 
together for the purpose of destroying the breaker of the 
plaintifl's, and having armed tliemselvps with pistols or other 
arms or weapons, went to the said breaker with the deter- 
mination and purpose' to destroy it, against any resistance 
that the WSitohman there might offer, and did actually destroy 
it by fire, the plaintiffs can not, under the terms of the policy 
of insurance, recover in this 8nit,'and the verdict ought to be in 
favor of defendant. 

Ans. "Affirmed." 

Verdict for plaintiffs for $3,473.33, and after judgment 
thereon, defendant took this writ and iilloged that the court 
erred, inter alia, as set forth in the iibove assignments of orroi'. 

George Hill and Joshua W. Comly, for plaintiff in error. 

The definition of riot adopted by the court from Hawkins' 
Pleas of the Crown, Book 1, Oliap. ('i5, page 29;5, docs not cor- 
rectly define the common law offense, and is not and never 
was the law of Pennsylvania: 3 Coke's Tnst. 176; 4 Black- 
stone Com. 146; 2 Ben. Dig., 'i'tf?'/;?,!?;?, "riot;" /*('iui.<ii/Iv(in!a 
V. Oribbs, Add. R 277; C(>mmniviii('.aU.h.s. Diipinj, Brightly'a 
R. 46; Lewis's IT. S. Crim. Law, 72; SIiduxc v. Ooniinon- 
wealth, I) Bavr, 83; Act of 1705, 1 Bioren's Laws; Act of 
March 31, 1860, Pamph. L. 389. 

If the breaker, structure and machinery of the defendants 
were unlawfully burnt by three or more men, banded to- 
gether for that purpose, they were burnt and destroyed by 
means of a riot within the terms of the exception in the pol- 
icy of insurance, and the conrt bjluw erred in not so telling 



Lycoming Insueance Co. v. Sciiwenk. 59 

the jury, instead of instructing them that they must iind ,that 
the assembling of the offenders was accompanied with snoh 
circnmstances as inspired the people v/itli terror, and that 
there was a violent, turbulent, disorderly', and noisy disturb- 
ance of the peace. 

The testimony of Timothy Adams or Alfred Ford, stand- 
ing alone, if believed by the jury, proved the case of a flagrant 
riot, and if the council for the plaintiff' in error understand 
the reason of the conrt below for refusing to affirm the sixth 
and seventh points of the defendant below, it was becans.e the 
court considered it to be their duty to leave all tlie .evidence 
to the jury to find "whether the acts of sliooting, and the 
noise that was created by the firing of the building were vio- 
lent and turbulent acts, and whether they were to the terror 
of the people," and whether there was a tumultuous disturb- 
ance of the peace. 

In the general cliarge, the court stated certain essentials, in 
their opinion, without which a riot can not exist or be proved, 
but in affirming the third and fifth points of the defendant be- 
low, they admit the p,ossible existence of riot in which some 
of the elements declared to be essential, are wanting. This 
was calculated to confuse. and mislead the jury. 

S- P. WoLVBRTON and J. B. Packee, for defendants in error. 

The definition of riot by the court below is abundantly sus- 
tained by authority: 2 Russell on Crimes, 2i7; Eoscoe on 
Grim. Ev., 725; 3 Wharton's Criminal Law, 153, Sect 2474, 
6th Ed.; King, P. J., in the case ^V^ re riots of 1844, 2 Clark 
278; Angell on Fire and Life Insurance, Sect. 136; Langdale 
v. Mason, Park on Insurance, 965, 8th Eng. Ed. There w?s 
not a riot, nor was the destruction caused by means of a riot 
within the words of the policy. The men who burned the 
breaker were incendiaries, not rioters. They proceeded quietly 
to the breaker, and left it without noise or violence. 

The testimony of Adams and Ford clearly shows that tlie 
breaker was not burned by men engaged in a riot, and the 
court could not have affirmed the defendants' sixth point with- 
out committing manifest error. As there is no statute defin- 
ing riot in Pennsylvania, and the common law is still in force, 
it was the duty of the court to dafiue and explain riot at com- 



60 Insukanoe. 

inon law. In doing this the court adopted the definitions 
approved by all writers on criminal law. After explaining 
riot at common law, they excepted the definition drawn by the 
defendants' counsel affirming their third, fourth and fifth 
points, 

Mr. Justice Gkeen delivered the opinion of the court, June 
14, 1880. 

Tlie defendants' sixth point requested the court to say: 
" that if the jury believe that the breaker was destroyed by fire 
in the manner testified by Timothy Adams, their verdict 
ought to be in favor of the defendant." Tlie seventh point 
made a similar request as to the testimony of Alfred Ford. 
Adams had testified that at about eleven o'clock at night, 
while he was watching at the breaker, " there was a lot of men 
came up to the breaker through the woods. I first heard 
them and I fired a shot; they fired too; they returned the fire 
and came up right away and set fire to the breaker. I seen 
some of them; now I couldn't tell you how many I seen that 
was there. T didn't see any batbre the breaker was on fire; 
I seen then maybe eight or ten; I can't tell how far t'ley were 
away from the breaker when they commenced shooting; may- 
be fifty yards or so; they didn't make much noise." 

Qt "What amount of shooting was done? " A. " It was a 
regular volley. I think may be there was fifty sliots fired alto- 
gether; I heard them coming in the direction of the breaker, 
1 did not go down until they had the breaker on fire; 
they came right up after the shooting and set fire to the 
breaker; after tliey set fire to the breaker I came down and 
went into the drift. * * * I didn't hear them say much, 
only when they came they said, 'Get out of tliis' ; that is 
about all I think I heard." 

Q. " How did they set fire to it?" A. "They got some 
fine kindling wood and poured some coal oil on; they hollered 
for it; one hollered for wood, and the other said ' Give me that 
coal oil;' that I heard; then they set it on fire; it burned pretty 
rapidly. * * * I can't say I was afraid; I didn't like to stay 
in the breaker anyhow ; I didn't want to be burned up. * « * 
I was not in danger of being shot, because I was inside of the 
breaker; they couldn't shoot through; I was more in danger 



Lycoming iNsuEAercE Co. v. Schwenk. 61 

of the fire than from being shot; I crawled down the plane 
over their heads.'' 

Ford testified that he also was a watchman at the breaker 
on the night of the fire, and was in the office immediately be- 
fore the fire, and heard four siiots fired, one at a time, and 
then there was a silence. " A.fter I heard the four shots, then 
there was a lot fired, just about I guess ten or fifteen yards 
from me; lots of shots; sounded to me like a volley of them. 

* * * After the shots were fired they plunged into the 
office, one of the men, as soon as that volley of shots was fired, 
and asked who was there, but there was nobody there; I wasn't 
in the office at the time; I saw him coming into the office from 
the back window; I didn't see anybody else there at the time; 
I heard him ask who was there; I didn't make any answer to 
the question; I wouldn't have been here if I had, I guess; 1 
went back of the office down in the bush and concealed my- 
self. * * * I wouldn't like to fight against so many men." 

We are decidedly of the opinion that in the foregoing testi- 
mony everj' element of riot is found, whether at common law 
or under our act of 1705. There was the unlawful assemblaaje 
of three or more persons, combined together toperpetrate an 
outrai>eous and violent crime; the commission of the ci'ime 
was immediately preceded by numerous discharges of fire- 
arms. Two peaceable citizens engaged in watching and pro- 
tecting the premises, placed there for that purpose, were com- 
pelled to fiee therefrom in terror of their lives. The crime 
was ai'son, one of the most odious known to the criminal law. 
It was committed at a late hour of the night, when the great 
majority of persons are in their beds and asleep, and least pre- 
pared to defend themselves or their property. It is an offense 
liaving a more natural and necessary tendency to put whole 
communities in fear and terror than almost any other. In this 
instance it was accompanied by the voices of men calling for 
wood and oil with which to apply the fire, by the loud and 
appalling noise of exploding weapons of destruction, and the 
criminals tiiemselves were a band of men whose numbers 
could not be determined on account of the darkness of the 
night. For a court in charging a jury to speak of such an 
occurrence as any thing less than a riot of the most marked 
and distinct character, would be si;nply to mislead them. We 



62 Insueajstce. 

think the learned judge of the court below, in his comments 
to the jurj, dealt quite too leniently witli the plain and un- 
disputed facts of tlie case. He said to them, that to prove a 
riot there must be a previous unlawful assembling, accom- 
panied with circumstances of force or violence, and " that if 
the assembling of persons be not accompanied with such cir- 
cumstances as these it can not be deemed a riot, however un- 
lawful the acts which they actually coinmitted." From this 
the jury would naturally infer that unless thoproof went back 
to the time wlien the men first met together, and established 
that such original meeting was attended with circumstances 
of actual force and violence, a case of riot could not be made 
out, no matter what acts of outrage and violence were subse- 
quently perpetrated. Such is not thelawas we understand it, 
and we consider it error to say, or to intimate, that it is, to a 
jury charged with the trial of such a case; we think, too, 
that the court rather overstated the necessity of proving " a 
violent, turbulent, disorderly and noisy disturbance of the 
public peace," in order to make out a case of riot. There was 
no controversy as to what were the facts; not a witness was 
called to give any other account of the occurrence than that 
testified to by Adams and Alfred Ford. Their creiibility 
was not assailed or impeached in any manner. It was a case 
in which it would have been entirely proper for the court to 
characterize directly the criminal aspect of the facts testi- 
fied to by the witnesses named. Instead of doing this, the 
learned judge told the jury they must decide wliether they 
believed the witnesses, when there was not a shadow of doubt 
thrown upon their credibility; and if they believed them, they 
are to "determine the facts and circumstances." Whether 
the facts and circumstances constituted a riot he did Tiot tell 
them, although expressly requested to do so in two points. 
In our opinion he should have affirmed the defendants' sixth 
and seventh points without qualification; for not doing so he 
was in error, as also in the general charge, for the reasons 
heretofore stated. We sustain the second, tenth, eleventh and 
twelfth assignments of error, and on these the case is reversed. 

Judgment reversed. 



Notes. 63 

1. Loss on coppsr disallowed on account of the mode of carriage: Taun- 
ton Co. V. Merchants Ins. Co., 22 Pick. lOS. 

2. Petroleum not allowed to be kept, under the term "merchandise" 
when specially prohibited by the policy: Birmingham Ins. Co. v. Ki oegher, 
83 Pa. St. 64. 

3. Prohibition against use of "refined coal or earth oils" construed as not 
prohibiting use of kerosene lor lighting: Bennett v. North B. & M. Ins. Co., 
10 Rep. 409. ~ 

4. Whether " bundles of rods'' are "bar iron" within the meaning of an 
insurance policy prohibiting the insurance of "bar iron" is a question of 
fact: Evans v. Commercial M: I. Co., 6 R. I. 47. 

5. "Gasoline " is included in a policy prohibiting "petroleum" and 
"kerosene:'' Kings County Ins. Co. v. Swigert, 11 TU. App. 590. 

6. " Increase of risk " by using store for warming "naphtha:'' Dan- 
iels V. Equitable Co., 48 Conn. 105. 



64 Ibrigation 

YuNKEK V. Nichols. 

(1 Colorado, 551. Supreme Court, 1872.) 

Eight to convey water over another's land. In Colorado, lands are held in 
subordination to the dominant right of others, who must necessarily 
pass over them to obtain a supply of waler to irrigate their own lands; 
but whether this right rests in grant, or upon the statute, or in the neces- 
sities of a dry climate, diverse opinions are expressed by the several 
judges. 

' Statute of Frauds— Executed license— EstoppoJ. 7- and N. agreed, but 
not in writing, to construct a ditch for the conveyance of water with which 
to ir.rigate their lands and to share equally in using ttie water. N., 
whose land was above that of Y., diverted all the water of the ditch ami 
thereby injured y's. crops. In an action on the case for diverting the 
water, held, that the agreement was not within the Stat ite of Frauds, 
and that it was in the nature of an executed license, which N. was 
estopped to revoke. 

^ Irrigation considered as a climatic necessity, makes the right of ditch- 
transit, which is essential to its enjoyment, analogous to the case of a 
way of necessity. 

Error to the District Court, Arapahoe County. 

Yunker brought an action of trespass on tlie case against 
Nicliols, for diverting water from an irrigating ditch lead- 
ing from Bear Creek to the plaintiff's farm. It appeared 
that tlie ditch was constructed in the spring of the year 1871, 
by the plaintiff, the defendant, and one John Bell, under an 
agreement that tliey would share equally in the water con- 
veyed thereby, such water to be used in irrigating the lands 
of the several parties respectively. After the ditch had been 
constructed to and across the defendant's land, so as to com- 
municate and supply water to plaintiff's land, the defendant 
diverted the water from the ditch and caused the same to flow 
upon his own land, so that none passed down to the plaintiff' 
whose lands were below those of the defendant, by means 
whereof the plaintiff's growing crop was greatly injured and 
diminished in value. It did not appear that there was any 
memorandum in writing of the agreement in respect to the 
ditch between the plaintiff, the defendant and Bell. Tlie court 

' Gooch V. Sullivan, 5 M. R. 15. 

^Schilling, v. Rominger, 4 Colo. 104, 109; TJnion Co. v. Ferris, 8 M. E 



YuNKER V. Nichols. 65 

Unstrncted the jury that, if the plaintiff's right to have water 
flow over the lands of the defendant was conferred by verbal 
agreement of the plaintiff, the defendant, and a third person, 
which agreement was never reduced to writing, that the 
plaintiff could not recover. The jury found for the de- 
fendant. 

H. R. liuNT, for plaintiff in error. 

Beowne & PcTTNAM, for defendant in error. 

Separate opinions were filed by the members of the court. 

Hallett, C. J. 

In England, and in this country, it is considered that the 
right of one person to conduct water over the land of another 
is an interest in real estate, which must be conveyed by de d 
in compliance with the terms of the Statute of Frauds. In 
countries where the humidity of the climate is sufficient to 
supply moisture to plants, there can be no reason for distin- 
guishing this from other easements in tlie soil, and therefore 
the law of England and of most of our States on this point 
will be found in the general rules relating to real pf'operty. 

The principles of the law are undoubtedly of universal ap- 
plication, but some latitude of construction must be allowed 
to meet the various conditions of life in different countries. 
The principles of the decalogue may be applied to the conduct 
of men in every countrj' and clime, but rules respecting the 
tenure of property must yield to the physical laws of nature, 
whenever such laws exert a controlling influence. 

In a dry and thirsty land it is necessary to divert the waters 
of streams from their natural channels, in order to obtain the 
fruits of the soil, and this necessity is so universal and impe- 
rious that it claims recognition of the law. The value and 
usefulness of agricultural lands, in this Territory, depend up- 
on the supply of water for irrigation, and this can only be 
obtained by constructing artificial channels through which it 
may flow over adjacent lands. These artificial channels are 
often of great length and rarely within the lands of a single 
proprietor. A riparian owner muSt usually get his supply of 
VOL. vm— 5 



66 Ikkigation. 

water from some point on tlie stream above his own land, and 
he is compelled to enter upon the lands of others in order to 
obtain it. Irrisratins ditches can not be made available at or 
near the head or point of divergence from the stream, and, 
while a riparian owner may be able to construct' a ditch npon 
his own territory, which shall overflow a portion of his land, 
he can never make it serviceable to the entire tract. Of conrse, 
lands situated at a distance from a stream can not be irri^^ated 
without passing over intermediate lands, and thus all titled 
lands, wherever situated, are subject to the same necessity. 
In otlier lands, where the rain falls upon the jnst and the un- 
just, this necessity is unknowfi, and is not recognized by the 
law. But here the law has made provision for this necessity, 
by withholding from the land owner the absolute dominion of 
his estate, which would enable him to deny the right of 
others to enter upon it for the purpose of obtaining needed 
supplies of water. It was enacted by the first legislative as- 
sembly, that persons owning claims on the bank, margin or 
neighborhood of any stream, should have'the right of way 
over adjacent lands for pui-poses of irrigation: Laws 1861, 
p. 67; and this law is stiil of force: Rev. Stat. 363. So, 
also, the common law recognizes an easement in certain cases, 
and will imply a grant of such easement where it is especial- 
ly necessary to the enjoyment of the dominant estate: Phoar 
on Rights of Water, 71. 

If one having a close, surrounded with his own land, grants 
tlie close to another in fee, for life or years,- the grantee shall 
have a way to the close over the grantor's land as incident to 
the grant, for, without it, he can not derive any benefit from 
the grant. So it is, also, where he grants the land and re- 
serves the close to himself: 1 Wm. Saund. 333, note 6; Penn- 
i'h'iton V. GMand, 9 Ex. 9; Snyder v. Warford, 11 Mo. 
513. 

And if one erect a house and build a conduit thereto in an- 
other part of his land, and convey water by pipes to the 
house, and afterward sell the house with the appurtenances? 
excepting the land, or sell the land to anotlier, reserving to 
himself the house, the conduit and pipes pass with the house 
bjcause it is necessary and quasi appendant thereto: Phear 
on Eights of Water, 72; Pheysey v. Vicary, 16 M. & W. 
484; Pyerv. Carter, 1 H. & N. 916. In these eases it is trne 



YuNKEK V. Nichols. 67 

the dominant and servient estates were derived from a common 
source, bat in this they are analogous to the case at bar. All 
the lands in this Territory which are now held by individuals 
were derived from the general government, and it is fair to 
presume that the government intended to convey to the citi- 
zens the necessary means to make them fruitful. 

" Into all contracts, whether made between States and indi- 
viduals or between individuals only, there enter conditions 
which arise not out of the literal terms of the contract itself. 
They are superinduced by the pre-existing and higher author- 
ity of the laws of nature, of nations, or of the community 
to which the parties belong. They are always presumed, and 
must be presumed to be knoivn and recognized by all, are 
l»inding upon all, and need never, therefore, be carried into 
express stipulation, for this could add nothing to their force." 
West Bi§er Bridge Co. v. Dix, 6 How. 532. 

When the lands of this Territory were derived from.the gen- 
eral government, they were subject to the law of nature, 
which holds them barren until awakened to fertility by nour- 
ishing streams of water, ajid the purchasers could have no 
benefit from the grant without the right to irrigate them. It 
may be said, that all lands are held in subordination to the 
dominant right of others, who must necessarily pass over 
them to obtain a supply of 'water to irrigate tlieir own lands; 
and this servitude arises, not by grant, bnt'by operation of 
law. 

In this case there was evidence tending to prove that de- 
fendant consented to the construction of the ditch, which 
with the aid of the law, was sufficient to maintain the action. 
If defendant had refused his consent, the statute prescribed 
the method of proceeding to perfect plaintiff's right. ' But, 
in any event, it was not necessary that defendant should con- 
vey to plaintiff the right of way for the ditch, and therefore 
the charge to the jury was erroneous. 

I think that the judgment should be reversed, and that a 
new trial should be awarded. 

Belfoed, J. 

Yunker sued Nichols in tile court below, in an action on 
the case to recover damages for cutting a certain ditch which 
* 



68 Iekigation. 

had theretofore been constructed on Nichols' land, and for di- 
verting the water therefrom. Tlie declaration contains three 
counts. It is averred that bunker, at the commencement of 
this action, and for a longtime anterior thereto, was the own- 
er of a certain tract of land lying from one to two miles 
distant from a certain stream known as Bear Creek. It 
is further averred that plaintift" had no facilities on said 
land for irrigating purposes. It is further alleged that 
the defendant and one John Bell, John McBrown and Peter 
Olsen, respectively, claimed certain tracts of land lying 
between the laud of the plaintiff and the stream above men- 
tioned. That on the first day of March, 1871, the plaint- 
iff and the said defendant and Bell, not having water fa- 
cilities on their lands for the purpose of irrigation, built and 
constructed a dam in said stream of water, adjacent to the 
land of McBrown, and procured from McBrown and Olsen 
the right of way across their land, and dug and constructed a 
certain ditch, and conducted water therein from the darn to 
the respective lands of Bell and Nichols and the said plaintiff, 
for the purpose of using the same in irrigating and making 
said lands availablefor agricultural purposes. That bv mu- 
tual agreement, the water running through the ditch was to 
be used, share and share alike, bj' the parties, each of the par- 
ties having the right to divert from said ditch onto their re- 
spective tracts one third of the water. It is further alleo-ed 
that, notwithstanding this agreement, and after the ditch was 
constructed and the water let in, the defendant, wrongfully and 
unjustly intending to injure the plaintiff and deprive him of 
the use of the water, not only diverted a larger quantity of it 
than he was entitled to, but prevented any portion of it from 
reaching plaintiff's land, and prevented the plaintiff from us- 
ing the ditch; wherefore great damage had accrued, etc. The 
defendant filed the general denial. The cause was submitted 
to the jury for trial, who returned a verdict for the defendant. 
There was no evidence introduced on the part of the defendant, 
and that of the plaintiff fully sustained the allegations of the 
declaration. The court gave the jury the following instruc- 
tions, which are assigned for error. 

" If the jury believe from the evidence that the right to have 
water flow over the lands of the defendant and to the lands of 



YuNKER V. Nichols. 69 

the plaintiff, for the interruption of which this action is brought, 
was conferred by a verbal agreement of the parties, or the ver- 
bal agreement of the plaintiff and defendant and a third per- 
son, which agreement was never reduced to writing, and tha* 
the plaintiff had no other right'to such flow of water than such 
verbal agreement, then, altliough they should believe from 
the evidence that the plaintiff actually constructed said ditch, 
and expended labor and money on the faith of such agree- 
ment, and that the defendants actually diverted the water, 
as charged in the declaration, they must find defendant not 
guilty." 

" Tiie jury can not find for theplaintiff unless they believe 
.from the evidence that the right which plaintiff claims, to have 
water flow over the land of defendant, and for the obstruction 
of which right this action is brought, was given by deed of 
the defendant to plaintiff". If plaintiff's only title to the flow 
and use of the water was a verbal agreement or consent of the 
defendant,, the plaintiff has no case." 

The principle involved in this case has certainly received a 
large degree of attention both in this country and in Eng- 
land; and it is to be deeply regretted that those courts which 
appear to have given it the greatest consideration, have failed 
to preserve any rule of uniformity in tlieir decisions. A broad 
distinction seems to be taken, between a license which is exec- 
utory, and one that has been executed; and in many instances, 
the principle of estoppel has been made available in avoiding 
the recognized force of the Statute of Frauds. In some of the 
States a license to dig a ditch and flow water therein over the 
land of another is held not to be such an interest in the realty 
as requires the right to be evidenced by deed; in others, a con- 
trary rule is expressly announced, and licenses of this char- 
acter are held to be always revocable at the will of the licensor. 
I apprehend that much of the confusion which obtains on this 
subject arises from a failure to keep steadily in view the dis- 
tinction which unquestionably exists between a mere license 
and a grant. In speaking of this subject, Vaughan, C. J., 
says; " A dispensation or license properly passeth no interest, 
nor alters or transfers property in anything, but only makes 
an action lawful which, without it, had been unlawful; as a 
license to go beyond the seas, to hunt in a man's park, to come 



70 Irrigation. 

into his house, are only actions which, without license, had 
been unlawful. But a license to hunt in a man's park, and 
carry away the deer killed to his own use, to cut down a tree 
in a man's ground and to carry it away the next day after to 
his own iise, are licenses as to acts of Imnting and cuttin>? 
down the tree; but as to carrying away of the deer killed and 
tlie tree cut down, tliey are grants." 

In courts where this distinction has been taken, it has been 
l:eld that the right to overflow the land of another is an ease- 
ment, an incorporeal hereditament, and it is an interest in 
real estate. Title to such easement must be conveyed by 
grant and established by proof of an actual .grant, or by proof 
of a prescription, from which a grant will be inferred. And 
if the mode of proof adopted be the showing of an actual 
grant the grant must, at least, under the Statute of Frauds, be 
in writing, by deed; and the same doctrine has been specially 
applied to a ditch constructed through tlie land of another: 
Morse v. Oopeland, 2 Gray, 305; Selden v. Delaware and 
Hudson Canal Co., 23 N. Y. 635; Foster v. Browning, 4 R. 
I. 47; Foster v. N. E. da N. Co., 23 Conn. 228. Our' atten-, 
tion, however, has been particularly called to the decisions 
which have been made on this subject in Maine, New Hamp- 
shire, Ohio, Iowa and Indiana, and I have endeavored 
to give them a most carefiiJ and critical examination. RloheT 
V. Kelly, I Greenl. 117, was an action of trespass for cut- 
ting down and destroying part of a wooden bridge, the 
property of the plaiiitifi's. The defendant, in justitying, 
pleaded that the bridge was erected on the land of Kelly with- 
out his license and against his will, and that he removed it, as 
he lawfully might do. 

The plaintiffs replied that, on a certain day, in consider- 
ation of their promise to perform certain work, which was ac- 
cordingly performed for Kelly, he gave them a license and 
authority to erect a bridge on his land, and to have a right of 
way over the same to the bridge; that, by virtue of said li- 
cense, they erected the bridge,- etc. To this replication the 
defendants demurred, be^.ause the plaintiffs had not set out any 
legal conveyance of title 'to them to build their bridge, nor to 
enter upon or pass over the land for any other purpose, and 
because it did not appear that said license was in writino-, nor 



YuNKER V. Nichols. 71 

how long it was to continue in force. Held^ by the court, tha,t 
the replication was good and the action maintainable. Mel- 
LEN, 0. J., after referring to the allegation of the defendant 
that the claim of the plaintiffs was an interest in the close, 
within the meaning of tiie Statute of Frauds, and tlie proof of 
this interest not being in writing, the permission of the de- 
fendant to the plaintiffs to enter upon tlie close and build said 
bridge and bnjoy a right of way over the close to the said 
bridge, is void and. ineffectual, says: " In the present case tlie 
plaintiffs placed their own materials, in tlio form of part of a 
bridge, on the defendant's land by their express consent, and if a 
right of way over the close to the bridge did not pass by parol, 
still the defendant had no right to seize and carry away tlie 
plaintiffs' property and destroy its value. As well might the 
owner of a ship yard permit another to build a ship in it, and 
wlien the ship wason the stocks, cut it in pieces and carry it away 
witli impunity," and this really appears to be the controlling 
principle in that decision. True, the judge holds that the- per- 
mission having been acted upon, the case was thereby taken out 
of the operation of the Statute of Frauds. But if we concede 
t lat this decision is made to rest on this latter ground, then 
the case can no longer be regarded as authority in that State 
for the reason that Pitman v. Poor, 38 Me. 237, silently 
overrules it, and holds that no permanent interest in real esr 
tate can be acquired by a parol agreement, and that the parol 
license that the plaintiff or his grantor may bniid a dam on 
the land of another, to raise a reservoir of water for the use of 
his mill, will confer no right upon the plaintiff to maintain 
such dam after it is built, or control the water raised by means 
of it. Tills is the last utterance on the subject by that court, 
so far as I am informed, and must be taken as the established 
doctrine of that State. 

The first case in New Hampshire is that of^Woodiuri/ 
V. Parshley, 7 N". H. 237. That was an action on the case. 
The declaration alleged that the plaintiff was seized of a mead- 
ow adjoining a certain pond, and that the' defendant, by 
means of a dam erected by him upon his own land, caused 
the water to overflow and injure the meadow of the plaintiff. 
The defendant introduced evidence showing that the dam had 
been erected by the mutual agreement of the parties. The 



72 iKEIGATIOIf. 

plaintiff objected to the admission of parol evidence to prove 
such agreement, but the evidence was admitted. The court, 
after holding that the evidence was rightly admitted, says: 
"The dam was erected by the defendant at Jiis own expense, 
with the assent of the plaintiff, for the benefit of both. And 
here the first question is, whether, under the circumstances, 
the license was revocable at the will of the plaintiff. The 
defendant had incurred expenses in erecting the dam. The 
license had been executed and acted upon. Certainly the 
plaintiff could not revoke it without tendering to the defend- 
ant the expenses that had been incurred in the project." 

In Amerisooggin Bridge v. Bragg, 11 N. H. 108, the court 
say: " It is contended further, that the license to erect a bridge 
on defendant's land can not be shown by parol testimony, on 
the ground that it is a permanent easement in the land, with 
a right at all times to enter and enjoy it, and that such an 
easement is within the Statute of Frauds and can be sustained 
only by evidence in writing. The distinction between a priv- 
ilege or easement carrying an interest in land, and requiring a 
writing within the Statute of Frauds to support it, and a li- 
cense which may be by parol, is said, by Chancellor Kent, to 
be quite subtle, and that it is difBcnlt in some of the cases to 
discern a substantial difference between them. A license to 
an individual to do an act beneficial to him, but requiring an 
expenditure upon another's land, is held not to be revocable 
after it has once been acted upon. Such a license is a direct 
encouragement to expend money, and it wonld be against 
conscience to revoke it as soon as the expenditure begins to be 
beneficial." In Sampson v. Burnside, 13 E". H. 264, it is 
held that a parol license to enter on land and lay down aque- 
duct logs for the purpose of carrying water from a spring to 
adjoining land, with license to enter from time to time 
to examine and repair the same, is not a sale of land or 
an interest in land within the Statute of Frauds. Whether the 
license in such a case is revocable or not, is regarded as an 
open question. In the case of Hoitston v. Laffer, 46 K H. 
507, which very strongly resembles the case at bar, the earlier 
decisions on this subject in that State are all noticed, and, if 
not directly overruled, their authority is greatly impaired. 
After alluding to these cases the court say: " But we tliink 



YuNKER V. Nichols. 73 

the more recent decisions, however, sustain the doctrine that 
the license is, in all cases, revocable, so far as it remains unex- 
ecntedj or so far as any future enjoyment of the easement is 
concerned. To hold otherwise would be giving to a parol li- 
cense the force of a conveyance of a permanent easement in 
real estate; such a doctrine can not be sustained. No such 
right or interest in real estate can be created by parol." It 
is evident, therefore, from the later cases, both in Maine and 
New Hampshire, that a clear departure has been taken from 
the doctrines announced in the earlier reports, and a tenden- 
cy has set in to conform to the line of decision pursued in a 
majority of the States. In Ohio the court lias steadily ad- 
hered to the doctrine that a parol license, , when executed, is 
irrevocable, and that an action of trespass is maintainable 
against the licensor for any unjast interference with the rights 
of the licensee: Wilson v. Chalfant, 15 Ohio, 248. 

In Iowa, Wickersham v. Oir, 9 Iowa, 260, the irrevocabil- 
ity of an executed parol license is made to rest on the ground 
that when money or labor has been expended on the land of 
another, upon tlie faith of a promise given by him, the owner 
shall not assert his legal right to the soil so as to interfere 
with that use or enjoyment of the thing which has resulted 
from such promise by the money and labor of tlie licensee. 

In Beatty v. Grefjory, 17 Iowa, 109, it is held that a parol 
license which has been acted upon, and which has led to the 
expendjture of money and labor, can not be revoked until 
compensation for such expenditure has been made. Taking 
this last case as modifying the principle announced in the 
former, we liave the courts of two States, Ohio and Pennsyl- 
vania, adhering strictly to the doctrine of the irrevocability of 
an executed license, while in all the other States as well as in 
England {Wood v. Leadhitter, 13 M. &. W. 838), licenses of 
this character are held to be revocable at will, as being in con- 
travention of the Statute of Frauds. Viewing the instructions 
given by the judge below, to the jnry, as the announcement 
of doctrines which should govern a court of law in the ad- 
ministration of purely legal principles, I am not prepared to 
dissent from them, but, while I jield'to them that measure of 
homage so fully accorded by others, I can not shut my eyes to 
the fact that it is doing violence to every principle of justice 



74 Irrigation'. 

to allow a statute designedly passed to cnt ofif and prevent 
frauds, to be converted into an instrument whereby they may 
be practiced and fostered. Tliat wliicli was originally intended 
as a shield and defense for rights should never be permitted 
to become a means of assault for their overflow. Courts of 
equity, wliich constantly adapt themselves to the progress of 
society and civilization, and whose principles accumulate witli 
the experience of ages, have certainly blunted the sharper 
edges of the Statute of Frauds, and evolved a doctrine in ev- 
ery respect more consonant with the interest of society, namely) 
that he who, by his admissions or conduct, induces another to 
act, can not afterward be permitted to assert the contrary to tlie 
injury or prejudice of the party who has already acted upon 
the faith and in the belief created by liim, and all the courts 
concur in holding that an estoppel inpais exists, when a party 
makes a statement to another which that other relies and acts 
upon, and which it would be a frand in the party making the 
statement to afterward controvert, so far as the statement af- 
fects the other's pecuniary rights. It can not be denied that 
the common law has, in a great measure, accommodated itself 
to this doctrine of estoppel, especially so far as it affects per- 
sonal property, and its application in matters of that nature 
is constant; nor is it wanting in examples in relation to real 
estate. So great a jurist as Lord Mansffeld would not sutler 
a man to recover even in ejectment when he had stood by and 
seen the defendant build on his land. And in the case of 
Heane v. Rogers, 9 B. & 0. 577, Mr. Justice Bailey said, that 
underthe same circumstances he would apjily the same doc- 
trine. Mr. Justice Bullee, in the ease of Farr v. Newman, 
4 D. & E. 636, remarks: "That when a rule of property is 
settled in a court of equit}"^, and there are no decisions ayaitist 
it at law, I am as ready as any man to follow the line of equitv, 
for I think it absurd and injurious to the community, that 
different rules should prevail in different courts on the same 
subject." And to the same effect is the language of Lord El- 
DON in Smith v. Doa, 7 Price, 509. In the case of Shaw v. 
Bebee, 35 Yt. 208, the principle ol estop])el was applied. That 
was an action of ejectment. The court say: "We are aware 
that there have been decisions questioning the extension of 
this doctrine of estoppel inpais to affect the title to lands. 



Yu NKEE V. Nichols. 75 

But a review of the decisions shows that the great weight of 
autli rity is consonant with the views we have here expressed. 
All ooncur that such facts constitute an estoppel as to personal 
property, and upon reason and principle, to prevent fraud and 
promote justice, the same rule should be extended to real 
property." It is also true, that the common law courts of 
Pennsylvania have adopted it; and they have adopted many 
other principles which had Urst received their sanction in 
courts of equity: Wentz v. Dehaven, 1 Serg. & liawley 312. 
The same principle was applied in Corbet v. N'ororon, 35 N. 
H. 11,5, and in Heard v. Hall, 16 Pick. 457, and in White 
V. Patten, 24 Id. 324. 

lu the State of Nevada they have yielded to the force of 
the same doctrine, as will be seen fro;n the case oi Sharon v. 
Jlinnooh, 6 JSTev. 389; so also in California, Kelly v. Taylor, 
23 Gal. 11; 5 Id. 84, and 8 Id. 441 

In Snouodorh ^. Wilds, 19 Iiid. 14, the court say: "But 
though a parol license, amounting, in terms, to an easement, 
is revocable as to future enjoyinent at law, and is determined 
by a conveyance of the estate upon which it was enjoyed, this 
is not the rule in all cases, in courts of equity. In these 
courts the future enjoyment of an executed parol license, 
granted upon a consideration, or upon the faith of which 
money has been expended, will be enforced, at all events, 
when adequate compensation in damages could not be ob- 
tained. This will be done upon the two grounds of estoppel 
and fraud, and the specific performance of a partly executed 
contract to prevent fraud. And in those States where law and 
equity are administered in the same court, relief is afforded 
in any given suit when the pleadings present the necessary 
averments." When courts of law so freely apply this principle 
in regard to personalty, it is difficult to comprehend why any 
hesitation should exist in its application to real estate. What 
would be justice in one case would be equally so in the other, 
and in equity it is accordingly admitted; and why should it 
not be 80 at common law? It may be said, however, that the 
distinction between law and equity is maintained in this 
Territory. That is true only in a qualified sense. The same 
officer administers both, and at the same term of eourt, and to 
me it seems strange and preposterous for the same judge to 



76 Ieeigatioj;^. 

turn the party out of his court one day to enable him to avail 
himself of a well known, well defined and well settled rule in. 
jurisprudence, as applicable in a rational point of view to 
proceedings in one tribunal as in those of another, especially 
when, as in this Territory, the very court which is to decide 
in equity is the same tribunal. It can not be controverted 
that, under the facts set forth in the declaration, Yunker 
would be entitled, in a court of equity, to a remedy that 
would secure him in the enjoyment of the ditch and the 
water flowing therein. Would a court of equity also com- 
pensate him for the damages which he has sustained by reason 
of the unjust interference of Nichols? Then it would be 
invading the domain of the law, and setting itself up as the 
admeasurer of damages; a comfortable and assuring spectacle 
indeed, when the same judge had, the day before, declined, for 
reasons of grave public policy, to invade the domain of equity. 
If the court should, however, feel unable to award compensa- 
tory damages, Yunker would be remediless, for the affirmance 
of the judgment below would bar his right of action, although 
the deed which the court of equity would require Nichols to 
make might be adjudged to take effect from the date of the 
construction of the ditch. 

In the notes to Smitii's Leading Cases, Vol. 2, p. 762, (6th 
Am. Ed.), the learned annotators say: "It would, therefore 
seem too late to contend that the title to real estate can not 
be barred by matter in pals without disregarding the Statute 
of Frauds, and the only room for dispute is as to the forum in 
which relief must be sought. The remedy in such cases lay 
originally in chancery, arid no redress could be had in the 
courts of common law unless under rare and exceptional cases. 
But the common law has been enlarged and enriched with the 
principles and maxims of equity, which are constantly applied 
at the present day in this country and in England, for the 
relief of sureties, the protection of mortgagors and the ben- 
efit of purchasers, by a wise adaption of ancient forms to 
the more liberal spirit of modern times. The doctrine of 
equitable estoppel is derived from the courts of equity, and as 
those courts apply to every species of property, there would 
seem no reason why its application should be restricted in 
courts of law. Protection against fraud is equally necessary 



YuiSTKER V. !N"lCHOLS. 77 

wliatever be the nature of the interest at stake, and it wonld 
seem that, whether the controversy be in equity or at law, 
there is nothing in the nature of real estate wliich should de- 
prive it of the benefit of those wise and salutary principles 
which are now applied without scruple, in both jurisdictions, 
in case of personalty. And whatever may be the wisdom 
of the change which has broken the barriers by which the 
doctrine of equitable estoppel was formerly excluded from 
legal tribunals, it has now arone too far to be confined within 
any limits less than the whole field of jurisprudence." Buck- 
holler V. Edwards, 16 Ga. 593. 

It seems to me, after the doctrine has received the sanction 
of such courts as those of Maine, New Hampshire, Pennsyl- 
vania, Georgia, Ohio, Indiana, Iowa, Nevada and California, 
we can run no serious risk in applying its benefits to the 
property within our borders. If the foregoing views are in 
any measure open to objection, still another reason exists 
which imperatively demands the reversal of the judgment be- 
low. At an early period in our territorial history, the legis- 
lature, keenly alive to the wants and necessities of our people, 
enacted a, law on the subject of irrigation, the provisions of 
which were designed to secure to all persons who claim, own 
or hold a possessory right or title to land within the boundary 
of Colorado, when those claims are on the bank, margin or 
neighborhood of any stream of water, the use of the water of 
said stream for the purposes of irrigation and making said 
claims available, to the full extent of the soil, for agricultural 
purposes; and further providing that, when the land so held 
or owned is removed from said stream of water, the owner or 
claimant shall be entitled to a right of way through the farms 
or tracts of land which lie above and below him on said stream, 
for the purposes above stated. The constitutionality of this 
law is, however, assailed, and it becomes necessary to pass upon 
it. To avoid acknowledging the fact that constitutions some- 
times surrender to the force of necessity, the general opinion 
obtains that courts and legislatures are justified in presuming 
that, within the scope and spirit of wise, august instruments, 
every power may be found, the exercise of which is essential 
to the public welfare. 

If the warrant for performing an act, justly esteemed indis- 



78 Irrigatiobt. 

pensable to the public prosperity is not found in an express 
grant, then the authority finds lodgment in the implied 
])Owers of the constitution; for whenever the end is required 
tlie means are authorized, and whenever a general power to 
do a thing is given, every particular power necessary for 
doing it is included. It would be almost impracticable, if 
it were not useless, to enumerate the various instances in 
wiiich Congress, in the progress of the government, hns 
made use of incidental and implied means to execute its 
powers; they are almost infinitely varied in their ramification 
and details: 2 Story on Const, § 1258. One of the most 
important interests of this Territory is the agricultural inter- 
est. Tins can only be fostered and nourished by a system 
of irrigation, and the right to legislate on this subject seems 
to me clear and imqnestionable. If then, the agriculture is 
essential to the well-being of this Territory, and can only be 
developed by a system of irrigation, it seems to me a matter 
of absolute necessity that the legislature should have power 
to pass needful laws whereby the great body of land lying 
within our boundaries should be made available — and that 
necessity confers a right to pass such laws, I will endeavor to 
demonstrate. No such power as that of selling lands for 
the non-payment of taxes is to be found in the revealed, 
natural, civil or common law. But there are analogous 
powers to be found in the common law code and in the stat- 
ute law of every civilized nation; for example, the power to 
condemn land for public uses, and the other cases where 
power is exercised over the estates of citizens, such as the sale 
of lands for the payment of the debts of owner. The taxino- 
power has no existence in a state of nature. It is the creature 
of civil society; government begets its necessity. There 
must be interwoven in the frame of every government a 
general power of taxation. Money is with propriety con- 
sidered as the vital principle of the body politic, as that 
which sustains its life and motion and enables it to perform 
its most essential functions. A complete power, therefore 
to procure a regular and adequate supply of revenue, as far 
as the resources of the community will permit, may be re- 
garded as an indispensable ingredient in every constitution. 
From a deficiency in this particular, one of two evils must 



YuNKER V. Nichols. 79 

necessarily ensue: either the people must be subjected to con- 
tinual plunder, or the government must perish for want of 
revenue to support it. It may therefore be laid down as a 
principle of universal constitutional law, that the power to 
levy taxes is incident to sovereignty, witliout which no gov- 
ernment could exercise the powers expressly delegated to it: 
Bkckwell on Tax Titles, 8-39; Pasham v. Decatttr County, 
9 Ga. 352. 

If, therefore, the right to raise revenue and to sell land for 
the payment of taxes is made legal and constitutional by 
virtue of the necessities of society and government, Avhat ten- 
able objection can be made to the validity of a law which, 
taking note of an imposing public necessity and the physical 
conditions of our Territory, accords to all persons engaged in 
agricultural pursiiits a riglit of way over lands lying between 
their possessions and a stream of water? 

Is not the necessity in this particular instance quite as im- 
perative as in tlie other? 

Every member of society is presume*! to have assented to 
tiie public law by wliich his right of property is subjected to 
the dominion of strangers. The manner in which this power 
is to be exercised is specified in tlie law. The same law 
whicii creates this power bridles its execution. You may 
take my property to pay my debts, but you must ascertain 
that debt by judgment, and a sheriiF must execute the power. 
You may take my land to build a railroad, but you must pay 
me the value of it. And hence, while it may justly be said 
that a party has an unquestionable right, owing to the neces- 
sities of the country, to construct a ditch over the land of 
another, independent of any special law on the subject, yet the 
legislature, as the representative of that society into which 
each citizen enters, and in the entering of which he sacrifices 
so much of his rights for the purchase of social protection, 
may prescribe the method, terras and means whereby tliat 
right to construct the ditch shall be exercised. Of cdurse 
these legislative provisions may be waived by the parties, as 
was done in this case. The construction of a ditch for irri- 
gating purposes seems to me to rest on principles analogous 
to tho#e wh'ch sustain the right of a private way over the 
land of another. 



80 Ikkigation-. 

In Parher v. Wehster, 2 Sid. 39, decided in Cromwell's 
time, it appeared that A had tliree parcels of land, and there 
was a private way out of the lirst parcel to the second, and 
out of the two lirst parcels to the third; and B purchased all 
tliese parcels, and sold the two first to C. There was no way to 
the land not sold bnt through the other two parcels, and the 
court adjudged that the way continued from necessity, and that 
the party was not liable in trespass for using it. In the case 
oi Snyder V. Warford, 11 .Miss. 613, the court held that a right 
of way of necessity exists in all cases in which an individual 
owns lands surrounded by other lands excluding it from any 
public highway, and the case is made to rest upon the good 
and salutary principle that the right of a man in the use of 
his property is restricted by a due regard to the equal rights 
of others. Tiie judge says: " It would seem to be no more 
than a principle of natural justice that his right of way should 
exist, although its existence may, to some extent, interfere 
with the absolute dominion of the conterminous proprietors. 
If not a principle of satural law, it is at least one which could 
not long be omitted in the code of a civilized people:" See 3 
Kent's Cora. 423, marginal; Holmes v. Seehj, 19 Wend. 507; 
Oapers v. Wilson, 3 McCord, 170; The People ex rel. Cook 
V. N earing, 27 N. Y. 306. 

I am fully aware that courts should be slow to justify their 
decisions on the ground of necessity; but I am equally 
conscious of the fact that they will betray their trust if in the 
administration of law, or in the expounding of constitutional 
principles, they shut their eyes and reiuse to recognize those 
conditions of society which call into force and operation prin- 
ciples whose existence and recognition can not be disregarded 
without bringing ruin on all. As has been well said by 
another, the law is not a system marked by folly, based on 
bald sentences, without reason; it is a grand code, founded on 
the necessities of men, erected by mature judgment, gradually 
expanding in beneficence and wisdom as time prooresses and 
regulating with care the interests of society and civilization. 
And so believing, I think the instructions given were erro- 
neous, and that the judgment should be reversed and the cause 
remanded. 



YuNKER V. Nichols. 81 

"Wells, J. 

I concur in the conclusion that the judgment given in the 
court below laiist be reversed, bnt, in so far as thisoonclasion 
is based npon a supposed estoppel, I dissent from what my 
brother Beltord has said; and, in so far as it is sought to rest 
it upon the statute concerning the irrigation of lands, I dis- 
sent from both my associates. 

I conceive that, with us, the right of every proprietor to 
have a way over the lands intervening between his possessions 
and the neighboring stream for the passage of water, for the 
irrigation of so much of his laud as may be actually culti- 
vated, is well sustained by force of the necessity arising from 
local peculiarities of cliinate, as in other countries, out of a 
like necessity, every proprietor has a way of right to his own 
close over the premises w;hich shut it from the highway. But it 
appears to me that this right must rest altogether upon the 
necessity rather than npon the grant which the statute assumes 
to make, for in other countries, where the necessity does 
not exist, the right has not been recognized in the courts, nor 
attempted to be confirmed by statute; and where similar legis- 
lation has been attempted, in the instance of private ways, 
by statute, it has been held to be either void as an appropria- 
tion of private property'to individual uses {.Taylor y. Porter, 
4 Hill, 140; Oshorn v. Rart, 3i Wis. 89), or else has been sus- 
tained as the regulation of an existing right, and not as con- 
ferring one; Snyder v. Warford, 11 Mo. 513. 

It seems to me, therefore, that the right springs out of the 
necessity, and existed before the statute was enacted, and would 
still survive though the statute were repealed. 

If we say that the statute confers the right, then - the 
statute may take it away, which can not be admitted. 

Doubtless the exorcise of the right may be regulated by 
statute, bnt that is not the question here; and it appears to 
me unnecessary to determine the validity or effect of the ex- 
isting legislation. 

Beversed. 
70L. viii— 6 



82 Ireigation. 

Weston v. Alden. 

(8 Massachusetts, 136. Supreme Judicial Court, 1811.) 

1 Irrigation recognized at common law. The owner of a close may lawfully 
use the water of a brook bounding his close, for husbandry, by making 
small sluices for the purpose, and if the owner of a close is damaged 
thereby, it is damnum absque injuria. 

This was a special action of the case against the defendant 
for diverting an ancient watercourse whicli passed through 
the plaintiff's close, and by wliich it was fertilized, so as to 
produce annually a large crop of grass. 

The cause was tried before the chief justice, upon the general 
issue, at an adjournment of the last October term in this 
county, and a verdict found for the plaintiff, by the consent 
of theparties, subject to the opinion qH the court upon the fol- 
lowing report of the judge who sat at the trial. 

It was proved that there was an ancient brook of runnin'x 
water, as described in the declaration ; and that tlie plaintiff 
was seized of the close therein mentioned; and that this water- 
course first passed by the defendant's meadow, wliich was 
bounded on it; that in its natural coarse it passed by Severn 1 
meadows belonging to persons not parties to the action, and 
then passed by the plaintiff's meadow, as alleged in his decla- 
ration; that the defendant, claiming a right to divert tlie water 
for any purpose as he pleased, in fact cut several sluices in tlie 
baiikof the watercourse, in his own land, that he might, witii 
tiie water passing tlirough those sluices, irrigate his own mead- 
ow; thatthe water thereby passed onto the defendant's mead- 
ow, through those sluices, but afterward passed into the same 
brook above the plaintiffs meadow, except such part as was 
absorbed in the defendant's meadow, or evaporated; and that 
so much of the water was absorbed in the defendant's meadow, 
or evaporated, in consequence of the sluices so opened by liim, 
that less water than usual came to the plaintifl''8 meadow; by 
reason of wliich his said meadow was greatly damaoed, the 
quantity of grass produced thereon being materially dimin- 
ished. 

' Greenslade v, HalUday, 6 Bing. 379. 



Arnold v. Foot. 83 

If upon these facts the defendant had a legal right to divert 
the water from the said ancient watercourse, for the purpose 
and in the manner aforesaid, the verdict was to be set aside 
and a new trial granted; otherwise the verdict was to stand, 
and judgment to be entered accordingly. 

Tlie action was continued nisi for the opinion of the court 
upon the foregoing report; and at an adjourned session of the 
last March term in Suffolk, present the Chief Justice, and 
Sewall and Pakk?:e, Justices, the opinion of the court was 
pronounced to the following effect: 

We think upon the facts reported in this case, that the 
plaintiff has no right of action and that the verdict must be 
set aside. A man owning a close in an ancient brook may 
lawfully use the water thereof for the purposes of husbandry 
as watering his cattle, or irrigating the close; and he may do 
this either by dipping water from the brook and pouring it 
upon his land, or by making small sluices for the same pur- 
pose; and if the own e<; of a close below is damaged thereby, 
it is damnum absque ir^uria. 

New trial granted. 



^Arnold v. Foot. 

(12 Weridel], 329. Supreme Court' of Judicature of New York, 1884.) 

Instance of the common law rule applied to irrigation. Where a 
spring of water rises upon the land of one owner and from it runs a 
stream onto the land of another, the owner of the land upon which is 
the spring has no right to divert the stream from its natural channel, 
although the waters of the stream are not more than sufficient for his 
domestic uses, his cattle, and for the iirigation of his land. 

Prescription. The right to divert water from its natural channel under 
the common law or the civil law, can be acquired by prescription only. 

Error from the Livingston Common Pleas. 

Arnold sued Foot in a justice's court, and declared against 
him for placing obstructions and thereby diverting a stream 
of water from its natural channel, and preventing it from 

1 WadswoHh v. Tillotson, 15 Conn. 366; 39 Am. Dec. 391. 



84 Ikrigation". 

flowing in and npoii the plain tiif's land. The defendant 
pleaded not guilty, and accompanied his plea with a notice 
that on the trial of the cause he would prove that the source 
of the waters of the stream which he had obstructed was on 
his own land, and that he had obstructed the stream no further 
than what was necessary for the use of his xiattle and the irriga- 
tion of his lands. On the trial the following facts appeared: 
The parties own adjoining farms; on the farm of the defend- 
ant, within five or six rods of the land of the plaintiff, there is 
a living spring, the water from which in its natural channel 
flows to and upon the land of the plaintiff, and has so run for 
about twenty years. Immediately after coming upon the 
land of the plaintiff it is received in a M'atering place for cat- 
tle, dug for that purpose, and from thence flows over the 
pasture and meadow of the plaintiff. The spring is near 
the dwelling honse of the defendant and is used by him for 
domestic purposes and for watering his cattle. About the 
20th April, 1831, the defendant plowed a furrow below the 
spring and thereby diverted the water from its natural chan- 
nel, and caused it to flow upon his own meadow to the extent 
of three or four acres. Soon after the diversion of the water, 
to wit, on 3d May, the plaintiff commenced his suit. It was 
shown that the furrow made to divert the stream is not more 
than eight or ten rods in length, and that at its termination 
the water soaks into the ground, causing it for several rods 
round to be quite wet. Puddles of water are also observed on 
the plaintiff's meadow, near the boundary line between the 
two farms, supposed to proceed from the termination of the 
furrow. The defendant proved that no more water runs from 
the spring than what is wanted for his domestic purposes, for 
his cattle and for the irrigation of his land. There is qnite a 
current, but the stream is small, and in the summer season 
it does not run upon the plaintiff's land more than ten rods. 
The justice gave judgment for the plaintiff for one dollar and 
seventy-tive cents damages, besides costs. The Common Pleas 
of Livingston on a certiorari, reversed the judgment of the 
justice, and the plaintiff below (Arnold) sued out a writ of 
error. < 

J. Young, for plaintiff in error. 



Aenold v. Foot. 85 

C. H. Bryan, for defendant in error. 

By the Court, Savage, Oh. J. 

The doctrine of the common law in respect to the use of 
running water is nowhere better expressed than by Chancellor 
Kent, in his Commentaries, 3 Kent, 439. Every proprietor 
of lands on the bank of a river has an equal right to the use 
of the water which flows in the stream as it was wont to run 
without diminution or alteration. No proprietor has a right 
to use the water to the prejudice of other proprietors above or 
below him. He lias no property in the water itself, but a 
simple usufruct while it passes along. He may use the water 
as it runs in its natural channel, but he can not unreasonably 
detain it, or give it another direction. He can not divert or di- 
minish the quantity of water which would otherwise descend to 
the proprietors below, nor throw the water back upon the pro- 
prietors above. Streams of water are intended for the use and 
comfort'of man, and every proprietor is entitled to a reasonable 
use of the water, and may apply it to domestic, agricultural and 
manufacturing purposes; but not so as to destroj' or materially 
diminish or affect the application of the water by the proprie- 
tors below the stream. Although each proprietor through 
whose lands a stream flows has a right to the use of the water 
in its natural channel, he may not use it to the prejudice of 
another. In the language of Mr. Justice Story, " The natural 
stream existing bv the bounty of Providence for the benefit of 
the land through which it flow's, is an incident annexed to the 
land itself." 4 Mason, 400. Theuseof the water for culinary 
and agricultural purposes implies a diminution of it, but this 
use must be with the least possible injury to others interested 
in the same stream. 

In the case now before the court, the water from the spring 
in question was wont to run currere solebat, in a direct line into 
the plaintiff's premises. This was the direction given to it by 
Providence; it was intended to water the land immediately 
below the spring, and it must continue to water that land no 
matter who may be the owner. Tlie defendant has a right to 
use so much as is necessary for his family and his cattle, but 
he has no right to use it for irrigating his meadow, if thereby- 



86 InRIGATIOIir. 

lie deprives the plaintiff of the reasonable use of the water in 
its natural channel. The evidence shows that the defetid;int 
has appropriated the whole water to his own use, and he 
seems to suppose that he possesses that right. Such, also, must 
have been the opinion of the Common Pleas — and iu this con. 
sists the error. The general principle laid down by Lord 
Ellenboeough in Bealey v. SJiaw, 6 East, 214, is this: "The 
general rule of law, as applied to this subject, is, that inde- 
pendent of any particular enjoyment used to be had by another, 
every man has the right to have the advantage of a flow of 
water in his own land, without diminution or alteration." 
This proposition has often been quoted with approbation and 
adopted by this court, and recently in the case of Croolcer v. 
Bragg, 10 Wendell, 264. The case of Brown v. Best, 1 
Wils. 174, was in some of its circumstnnces much like the 
present and fully exemplifies the principle. The plaintiff de- 
clared upon his possession of the land through which the wa- 
ter used to run, and set out the course thereof, and averred 
that the defendant obstructed it by digging pits and makino- 
ponds, by which the water was diverted and sunk so that no 
water ca,me to the plaintiff's grounds. The defendant pleaded 
that all the water sprung in his ground; that two pits had 
been there time out of mind, for the use of water for the 
meadows and cattle; that at the time when, etc., those pits 
were choked rip with mud, and therefore he dng two large 
pits and made dams and banks, which he insisted it was law- 
ful for him to do. That case and this are just alike, except 
that in that the defendant claimed a right by prescription to 
have two large pits full of water, which is not pretended in 
this case. The question there arose upon demurrer, as to the 
sufficiency of the defendant's plea. ' Chief Justice Lee held 
the declaration right, and that the plea admits the existence 
of the watercourse, and acknowledged that the defendant had 
enlarged the pits. This the Chief Justice said really 
amounted to a confession of the plaintiff's action; for thono'li 
there might have been pits on the defendant's ground time 
out of mind, yet he could not enlarge them, but they must 
remain as they always had been; and such, he said,' is the 
rule both in common and civil law. The whole court con- 
curred in giving judgment for the plaintiff That case shows 



ThOEP v. WoOLMAliT, 87 

what was meant by Lord Ellenboronnh by the expression 
independent of any particular enjoyment. The particular 
enjoyment was the right to fill the two pits. The defendant 
had used the water in that way time out of mind, and there- 
fore had a prescriptive right to that use besides t^he natural 
use of the stream. So if the plaintiff in this casehad submit- 
ted for twenty years to the defendant's appropriation of the 
water of the spring, by diverting it from the natural channel 
and carrying it in a different direction, his right would be 
gone; and but for the prospective right set up in Brown v. 
Best the defendant would have no right to fill those pits. 
The court decided that he had no right to dig new pits. The 
defendant in this case, by plowing furrows and thus diverting 
the water from its natural channel, has done the same thing 
which the defendant in that case did by digging new pits; 
and in both cases the consequence is the same — the soakage 
of the water into the defendant's ground, whereby the plaint- 
iff is .deprived of the use of it. The defendant had no such 
right, and the plaintiff has sustained damage. The action 
therefore lies. 

Judgment of Common Pleas of Livingston reversed with 
costs, and judgment of the justice aflirmed. 



, Thokp v. Woolman. 

(1 Montana, 168. Supreme Court, 1870.) 

Apportionment of water by commissioners, Toid. The powers conferred 
upon the commissioners authorized to be appointed for the apportionment 
of water when the supply is not sufficient to meet the continual wants 
of all appropriators, under " An act to protect and regulate the irri- 
gation of land in Montana Territory," approved January, 1865, are 
clearly judicial, and the acts of such commissioners are without 
authority of law, and void. 

Bigrht of appropriation limited by statute. — The statute referred to 
recognizes the right of appropriation of water for irrigation, limitinp: it, 
however, to persons owning land upon the banks of the stream from 
■which the same is taken, and also limiting the quantity he can appro- 
priate to what is necessary to irrigate his land. 

' Prior appropriation. He who first locates land and appropriates water to 

' Simpson v. Williams, 4 West C. R. 5S0; Ifwin v. Strait, Id. 582. 



88 Iriugation'. 

irrigate the same, is entitled to enough to irrigate his land; he who ia 
first in time is iirst in right. 

Appeal from the Third District, Lewis and Clarke County. 

In this action, Thorp and Woolman filed their agreed 
statement of facta in the District Court for Lewis and Clarke 
county, on March 14, 1870. The attorneys of the parties 
also filed a stipulation "that the above agreed statement is 
made with reference to the settled customs and usages of 
Montana Territory, of which we desire that the court shall 
take judicial notice." On June 10, 1870, the court, Smyks, 
J., signed a decree in favor of Thorp, and Woolman appealed. 

Section 4 of the act approved January 12, 1865, which is 
referred to by counsel and the court, is as follows: 

" Sec. 4. That in case the volume of water in said streaTn or 
river shall not be sufficient to supply the continual wants 
of the entire country through which it passes, then the near- 
est justice of the peace- shall appoint three commissioners, as 
hereinafter provided, wliose duty it shall be to apportion, in a 
just and equitable proportion, a certain amount of said water, 
Ti|)oti certain alternate weekly days, to different localities, as 
they may in their judgment think best for the interest of all 
parties concerned, and with a due regard to the legal rights 
of all." 

The opinion contains the other facts. 

SiioBEE & LowRT, for appellant. 

WooLFOLK & Toole, for respondent, who was plaintiff be- 
low. 

Knowles, J.' 

This cause was presented to the court below on an 
agreed statement of facts. It appears, from this, that the 
respondent and appellant each owned a ranch on Prickly 
Pear creek. That of the appellant's was higher up the creek 
than that of respondent's. The respondent first located his 
rancii, and, at the same time, claimed three hundred inches 
of water in this creek for tlie purposes of irrigating his land. 
In 1869, owing to a drought, this was all the water there was 
in this creek, and this much was necessary to irrigate the land 
of respondent. The appellant then applied to the nearest 



Thoep v. Woolman. 89 

magistrate, in accordance with the provisions of "An act to 
protect and regulate the irrigation of bind in Montana Terri- 
tory," approved January, 1865, for the appointment of three 
commissioners to apportion v/liat water there was in the 
creek between him and respondent. This commission met 
and awarded one half of the water to appellant, leaving the 
respondent the other half. 

The respondent asks a decree against the appellant for three? 
hundred inches of water. The case may be said to be an 
action to quiet title, presented to. the court upon these facts. 
Tlie court below gave judgment to the respondent for three, 
hundred inches of water. From this judgment the appellant 
appeals to this court. 

The first question presented is this award of the commission. 
The powers given this commission by the act under which 
they conducted their proceedings are clearly judicial. They 
are empowered by it to apportion the waters in a just and 
equitable proportion. This required them to determine what 
was just and equitable between these parties. In the next 
place the apportionment was to be made with a due regard to the 
legal rights of all. This required of them to determine what 
these legal rights were. The Organic Act of this Territory, 
which is its fundamental law, limits the powers of legislation, 
vests judicial power in a Supreme Court, district courts, pro- 
bate courts, and in justices of the peace. No tribunal which 
does not belong to one of these classes is legal. As this com- 
mission can not claim to belong to either one of these, it was a 
tribunal exercising judicial authority without legal warrant, 
and its acts are void. Tlie appellant gained no rights what- 
ever by virtue of tliis award. 

It is not necessary for the court to determine in this case, 
whether or not tiie doctrine of appropriation applies to ranch- 
men as well as to miners, concerning water rights, for the state- 
ment of facts shows that the ranch of appellant was above 
that of the respondent, and that at the time this dispute arose 
three hundred inches of water was flowing down the creek by 
appellant's ranch, which clearly indicates that the water had 
not been taken out of the creek above it. As a riparian pro- 
prietor the respondent would be entitled to have the waters of 
the creek flow down its accustomed and natural channel un. 



90 iKRIGATIOIir. 

diminished in quantity, and below appellant's ranch could di- 
vert the same for purposes of irrigation as against liiin. Tiie 
counsel for appellant, in tiieir brief, say tiiey claim their rights 
by virtue of the above statute. There are many reasons for 
holding that this very statute reooiifnizes or establislies tlie 
doctrine of appropriation of water for irrigation, limiting, 
however, the right to appropriate to persons owning land upon 
the banks of the stream from whicli the same is taken, and 
also limiting the quantity of water lie can appropriate to what 
is necessary to irrigate his land. The permission given by 
that act to take water out of its natural channel for purposes 
of irrigation, where it damages landholders below the point 
whore the water is diverted, is incompatible with the common 
law doctrine in the case of riparian proprietors. 

Section 4 of the act I do not think, in any wny, militates 
against this view. Any ti'ibiinal, governed by the established 
principles of law, making an apportionment of water in ac- 
cordance with what is just and equitable, would be compelled 
to hold that the one who first located the land, and claimed 
the water, was entitled to sufficient to irrigate his land; for 
equity declares that he who is first in time is first in ricrlit. 

In this case the respondent was first in time, and, giviiio- the 
construction to the statute indicated above, under it he would 
undoubtedly be entitled to the water in dispute. 

For these reasons the judgment of the court below is af- 
firmed with costs. 

Exo<i^tions overruled. 



Union Mill and Mining Company v. Ferris et al. 

(2 Sawyer, 176. U. S. Circuit Court, District of Nevada, 1872.) 

' Ctoyernment title to streams in public land. Bsfore title to public lands 
IS acquired from the government of the United States, no occupancv or 
appropriation of the water flowing through the same, nor Ptate leais- 
lation nor decision of State eonrts, can in any manner qualify, limit, 
restrict or affect the operation of the government patent. 

^Baaey v. Gallagher, 1 M. R. 683. 



Union Mill and Mining Co. v. Feeris. 91 

*Tlie government lias an nnqnalifled right to dispose of the public land; 
a stream of running water is part and parcel of the land through 
which it flows, and the use of it as an incident to the soil passes to the 
patentee, who can only be deprived of it by grant, or by the existence of 
circumstances from which it is the policy of the law to presume a grant. 

The Statute of Limitations does not run against the United States. 

Presumptive grant of water-rig-hts. If the owner of a tract of land for 
which he holds patent from the government, through which land a 
stream of water flows, has, by reason of the adverse possession and use 
of the stream by an upper proprietor, presumptively granted to the lat- 
ter the use of the stream for purposes of irrigation, such grant does not 
affect lands on the same stream acquired by the lower proprietor after 
such presumptive grant had its origin. 

The Ditch Act construed with refei-ence to prior patents. , The act of 
Congress of July 26, 1866 (R. S. § 2339), is not retrospective in its oper- 
ation, and does not in any manner qualify orlimit rights acquiied under 
a patent issued before the act became a law; but rights acquired by pri- 
ority of possession were by that act confirmed, and are entitled to protec- 
tion as against one claiming as riparian proprietor merely, through a 
patent subsequently issued, and when no right had vested in the pat- 
entee before the passage of the act. 

^ Use of water, wlien adverse. The use of water by a riparian proprietor is 
not adverse unless it appears that its use causes such injury to another 
as would justify an action for its redress. 

Use of water by riparian proprietor. A riparian proprietor may make a 

r jaf onable use of the water of a stream for purposes of irr.'g tion, b.t 

before he can acquire a right to the water by adverse use or prescription, 

the burden is on him to show that his use has amounted to an ac'.ion- 

_ 'able invasion of the right of another. 

Seasonable use — How determined. Each riparian pi-oprietor may make 
a reasonable use of the stream, and what this is depends upon the cir- 
cumstances of each case. It would not be permissible to take the water 
at some distance above, and return the surplus at some distance below 
the land of the proprietor using it, if thereby a considerable portion of 
the water is wasted to the injury of the proprietors below. 

Before Sawyee, Circuit Judge, and Hilltek, District Judge. 

Bill in equity to restrain the diversion of water. 

The facts sufficiently appear in the opinion of the court. 

SUNDEELAND & "WoOD, WiLLIAMS & BlXLEE, and A. C. 

Ellis, for plaintiff. 

K. S. Mesick and Claekb & Lyons, for defendant. 

1 Compare Farley v. Spring Valley Co., 58 Cal. 142, and Lux v. Haggin, 
4 West C. R. 256. 

2 Union Co. v. Dangberg, 8 M. R. 113. 



92 Tkkigation. 

By the Court, Hillvee, J. 

This suit was commenced on the fourth day of August, 
1871, to enjoin the defendant from an alleged wrongful 
diversion of water from Carson river. Albert Ferris, having 
since the commencement of the suit acquired the interest of 
Peter Lightle, one of the original defendants, has been substi- 
tuted as a defendant. Lightle answered separately, and the 
present decision involves only the questions at issue between 
the complainant and the defendant Albert Ferris. This is 
one among several causes instituted by the complainant 
against nnmerous residents along tlie Carson river, in Carson 
valley, and has been submitted as, in several respects, a test 
case. It appears t\iat in the spring of 1861, B. F. Wheeler 
and others located, as a possessory claim, the land upon which 
the Merrimac mill is situated. In May of that year the 
construction of a mill was commenced, and it was completed 
in September following. A dam and mill-race, for conduct- 
ing the water to the mill, were made at the same time. The 
possessory claim to tliis land, with tiie mill and water privi- 
lege, have been conveyed to tlie complainant. Since its com- 
pletion, the mill has been propelled by the water of the 
Carson river; and, saving temporary stops, has been constantly 
run for the purpose of reducing metalliferous ores. The 
complainant is now owner in fee of the land upon whicii the 
mill, dam and mill-race are situated, the foundation of its 
title being patents emanating from the United States. Two 
of these, for forty acres each, are dated September 15, 1864- 
and the third, for one hundred and sixty acres, is dated October 
10, 1866. The waters of Carson river naturally flow through 
each of these parcels of land. 

In the year 1858, one T. F. Bowmer entered upon a portion 
of the public land situated about twenty miles above the 
point where the complainant's mill stands. This possessory 
claim was, after several mesne conveyances, finally conveved to 
Peter Lightle, the grantor of Ferris. Lightle continued in 
the actual possession of the land, and on the 15th June, 1865 
obtained a patent from the United States for 158 33-100 
acres, and on June 26, 1869, a patent from the State of 
Nevada for 80 acres. This is arable farming land, and the 
east fork of Carson river flows naturally tlirough both parcels 



Union Mill and Mining Co. v. Ferkis. 93 

In 1860, Liglitle and Bowmer, being then joint possessors of 
this land, diverted a portion of the water of the east fork of 
the river, and conducted it by means of a ditch onto tliis 
land, where it was used for irrigation. Water has been used, 
to some extent, continuously on this land since that year in the 
irrigating season. Prior to the issue of the patents therefor, 
the land of both parties was public, and the property of the 
United States. The defendant admits a diversion of water, 
and claims a right to do so on the grounds, firstly, of prior 
appropriation and use; secondly, of prescription; and thirdly 
of riparian proprietorship. 

It is also claimed' that the act of Congress of July 26, 1866, 
coniirnis the right of defendant, acquired by priority of appro- 
priation. 

We consider it to be entirely clear that before the title to 
these lands was acquired from the government of the United 
States, no occupancy or appropriation of the water bj'^ either 
party, no State or Territorial legislation or rule of decision 
established by the State courts in controversies between occu- 
pants of the public land, without title from the government, 
can in any manner qualify, limit, restrict or affect the opera- 
tion of the government patent; that the government has a 
perfect title to the public land and an absolute and unquali- 
fied right of disposal; that a stream of running water is part 
and parcel of the land through which it flows, inseparably 
annexed to the soil, and the use of it as aii incident to the soil 
passes'to the patentee, who can be deprived of it only by 
grant, or by the existence of circumstances from which it is 
the policy of the law to presume a grant; that the government, 
as proprietor of the land through which a stream of water nat- 
urally flows, has the same property and right in the stream 
that any other owner of land has, be it usufructuary or other- 
wise, and that a statute of limitations does not run against the 
United States. Upon the foregoing propositions it is nut 
deemed necessary to enlarge. They seem incontestable, and 
we shall content ourselves with a reference to the case of 
Vansickle v. Raines, 7 ISTev. E. 249, wherein the authorities 
are collected, and the law stated in the clearest and most satis- 
factory manner, and the case of Gibson v. Chouteau, 13 Wall. 
93. In VansicUa v. Haines, the court held: That the 
United States is the absolute and unqualified proprietor of all 



94 Ireigation. 

the public land to wliich the Indian title has been extin- 
guished; that running water is primarily an incident to the 
ownership of the soil over which it naturally flows; that the 
government patent conveys to its grantee not only the land 
through which a stream naturally flows, but also the stream ; 
that neither Territorial nor State legislation can in any wise 
impair or modify the right of the government to the primary 
disposal of the soil; that statutes of limitation do not r"un 
against the State, so that no use of water while the title to the 
land is in the government, can avail the defendant as a foun- 
dation of title by prescription, or defeat or modify the title con- 
veyed to tlie grantee by his patent. After examination we are 
constrained to say, in the language of Mr. Justice Gaebee, in 
that case, that not only the weight of authority, but all the 
authorities support these propositions. 

We propose now to Consider how the question of prescrip- 
tion would stand if the act of Congress of July 26, 1866, had 
not been passed; secondly, the effect of that act; and thirdlj-, 
whether there has in fact been any such adverse enjoyment as 
warrants the presumption of a grant. 

And firstly, on September 15, 1864, one David Gammel 
obtained a patent for what is now the upper portion of com- 
plainant's land, consisting of two forty acre tracts. On Octo- 
ber 10, 1866, Oliver Eacicot obtained a patent for the lower 
portion, embracing one hundred acres. The complainant's 
mill is on the lower premises, the dam and race on the upper. 
As. none of the time during which the defendant used the 
water prior to the issue of the patents can be counted as part 
of his adverse possession, his prescriptive title could have iiad 
no legal commencement as against Gammel's title, before 
September 15, 1864, nor as against the title of Eacicot, before 
October 10, 1866. From September 15, 1864, to the com- 
mencement of this suit, is more than five years; and from 
October 10, 1866, to its commencement, is less. Thus any 
prescriptive title to the water must have its origin after Sep- 
tember 15, 1864, and before October 10, 1866. Admitting, for 
this argument, that the defendant had acquired by adverse 
use a right to divert the water as against the Gammel title 
can that affect the title acquired from Eacicot, the complain- 
ant being now the owner of both titles? A very little exam- 
ination will show that it can not. What the defendant in 



Union Mill and Mining Co. v. Feeris. 95* 

eifect claims, is, that after Gammol acquired the government 
title to the upper premises, and before tlie title to the lower 
had passed from the government, Gamrael made a grant to 
the defendant of a right to use a portion of the waters of the 
stream flowing through his land, which, without such grant, 
he could liave insisted should descend to him. At the time 
this grant must have its origin, the government had not con- 
veyed, but was still the owner of the lower premises. It cer- 
tainly needs no a;rgument bejond this statement to show that 
Gammel could convey to the defendant no interest of any de- 
scription in the land below, which was then the property of 
tlie United States. We may, under certain circumstances^ 
presume a grant, but we can not presume that such grant con- 
veyed or attempted to convey something to which the pre- 
sumed grantor had no title. It follows that Kacicot took from 
the government in October, 1866, a perfect title to his land, 
unaffected by any grants made b}' proprietors above him. 
This is the title by which tlie complainant holds the lower 
premises. 

But it is said that the right of defendant by prescription as 
against the complainant, was, in law, a grant by complainant 
to defendant, at least as against premises conveyed by the 
patents of 1864:, and that the complainant can not now de- 
feat that grant by the purcliase of premises lower down on the 
stream. This position seems untenable. We liave already 
seen that the titles to the upper and lower premises were dis- 
tinct at the time the grant must have originated, the upper 
being owned by Gammel, the lower by the United States. It 
has also been shown that the easement claimed can be at- 
tached only to the upper premises, because there could be no 
presumption of grant or adverse use as against the lower 
premises, while the property of the United States. If we 
admit that the complainant's grantor, Gammel, granted, in 
fact, the water right claimed to the defendant, it was a grant 
of a parcel of the estate he then had in the upper premises, 
and the complainant took the upper premises subject to that 
grant; but it is impossible to see how the purchase by the 
complainant afterward of anotlier parcel of land, no part of 
which had been conveyed to defendant, can be said to be an 
act destructive of the force of the grant made by the owner of 
tl.e upper premises. The union of the two titles long after 



03 Ieeigation. 

tlie tyrant was made, can not operate to enlarge the prant. 
The defendant lias the easement which was granted to him in 
the npper premises, but as he never had any in the lower, it 
can make no difference to him wliether the latter are owned 
by the complainant or some other person! In JUiss v. Ken- 
nedy, 43 111. 68, the complainant purchased from the defendant, 
Kennedy, a lot of land upon which there was a factory and a 
water privilege. Afterward the defendant purchased a tract 
of land above, built a factory and used the water of the stream 
tiierein. Tlie claim of the complainant was, that Kennedy, by 
his deed to Bliss of the lot and factory below with the " ap- 
purtenances," virtually covenanted that his grantee should 
liave the use of the water as it then came to the factory — the 
flow of the water being appurtenant to the lahd granted. 
Kennedy, at the time of making this deed, had no right, title 
or claim to any land, save that on which the factory was 
erected. " By his deed," says the court, " he can not be held 
to have sold and conveyed anything bnt the land and factory 
specified in it, and the appurtenances to that land and factorv 
then belonging. * * * AH that belonged to the tract 
conveyed, and over which Kennedy then had dominion, 
passed by his dee I under the term appurtenances. Kennedy, 
when he conveyed the factory and land with its appurtenances 
to complainant, owning nothing outside the boundaries of the 
land conveyed, above or below the factory, could convey noth- 
ing; and, therefore, no part of the stream above the factorv 
could pass as appurtenant to it." So, in this case, the ownei- 
of the upper premises at the time the presumed grant must 
have had its origin, having no interest in the premises below 
could convey none to his grantee. The complainant, then 
by virtue of his ownership of the lower premises, has a right 
to have the water of the river flow to these premises un- 
affected by any right arising out of an adverse use as against 
the upper promises, unless there is something in the act of 
Congress qualifying that right in respect to the lower prem- 
ises. 

On July 26, 1866, Congress passed an act, entitled " An 
act granting the right of way to ditch and cnnal owners over 
the public lands, and for other purposes," and it is therein, 
among other things, enacted, " that whenever, by priority 



Union Mill and Mining Co. v. Ferris. 97 

of possession, rights to the nse of water for mining, agricult- 
ural, manufacturing, or other purposes, have vested and 
accrued, and the same are recognized and acknowledged by 
the local customs, laws, and the decisions of courts, the 
possessors and owners of such vested rights shall be main- 
tained and protected in the same." 14 Stat. U. S. 253. 
Prior to the passage of this act, the, policy of Congress had 
been, as shown by its legislation, to grant to purchasers of 
the public land the bed of a non-navigable stream flowing 
through the land sold, and the lines of sections were run 
without reference to the meanderings of such stream; so 
that the purchaser of land through which a non-navigable 
stream flowed, took tiie bed of the stream and such riparian 
rights to the water of the stream as belong to the owner of 
the soil. Several attempts had been made to provide by law 
for the survey and sale of the mineral lands; the survey to be 
rectangular, as in case of other lands. These attempts had 
always been successfully resisted by the mining communities, 
because, among other reasons, such a survey and sale would 
have been ruinous to the possessors of quartz lodes, which do 
not descend perpendicularly, but at a greater or less angle. 
For seventeen years prior to 1866, the mineral land of Cali- 
iornia and Nevada had been occupied by the citizens of the 
United States, without objection on the part of the govern- 
ment. Canals and ditches were dug during this time, 
often at great expense, over the public lands, and the water 
of the streams diverted by these means for mining and other 
purposes. Local customs grew up in the mining districts, by 
common consent, and by rules adopted at miners' meetings 
for governing the location, recording and working of mining 
claims in the particular mining district. Possessory rights 
to public lands, mining claims and water, were regulated by 
State statutes, and enforced in the State courts. The rules, 
customs and regulations of the miners were also recognized 
by the courts, and enforced in trials of mining rights. The 
courts not applying, in all respects, the doctrine of the common 
law respecting riparian owners, in deciding between these 
possessors, none of whom had title to the soil, recognized a 
species of property in running water, and held^that he who 
first appropriated the waters of a stream to a beneficial pur- 

VOL. VIII. — 7 



98 Iekigation. 

pose, had, to, the exfent of his appropriation, the better right 
as against persons subsequently beating on tlie stream, above 
or below;, and that the iirst appropriator might conduct the 
water in canals, ditches and flumes wJieresoever he pleased, 
and apply it to whatsoever benelicial purpose he saw fit, with- 
out any obligation to return it to the stream wiience it was 
taken, or preserve its purity or quantity: Kidd v. Laird, 
15 Cal. 162; Weaver v. Eureha Lake Co., Id. 271; Loldellw. 
Simpson, 2 ISTev. 274; OpUr B. M. Com/pany v. C. Car- 
penter et al., 4 Nev. 534. In this posture of affairs, the 
persons who had constructed these canals and ditches, at an 
expense of hundreds of thousands of dollars, in many in- 
stances, over the public land, saw, when the question of the 
sale of those lands was agitated, that should sucli s-ale be 
made, they, as to these possessory rights, would be at the 
mercy of the buyer of the legal title, without some protective 
legislation. The act of 1866, section 9 of which we have 
quoted in part, was a consequence of this state of things. It 
gives the possessor of quartz lode aright of pre-emption, and 
it declares that the person who has acquired a right to the use 
of water by priority of possession shall be maintained aiid 
protected in the same, if such right is recognized and acknowl- 
edged by the local customs, laws and decisions of courts. 
The policy of this enactment, so far at least as it relates to 
agricultural districts, may be doubtful, but it is the lawof tlie 
land, and the courts must carry out what appears to be the 
intention of the legislature, as therein expressed. And that, 
as indicated by the act, appears to be to grant'to the owner of 
possessory rights to tlie use of water under the local customs, 
laws and decisions, the absolute right to such use, which the 
government alone could grant. Under this law, when a 
possessory right to the use of waters is claimed, whether 
or not such right exists will be determined by reference to 
the local customs, laws and decisions; and the question will 
be determined just as it would have been had it been raised 
between occupants before the title to the land had passed from 
the government. When the right is thus ascertained, the 
statute has the force of confirming it to the person entitled 
under the local laws and decisions. But the act is prospective 
in its operation, and can not be construed so as to divest a 



Union Mill and Mining Co. v. Fekeis. 99 

part of an estate granted before its passage. If it be admitted 
that Congress lias the power to divest a vested riglit by giv- 
ing a statute a retrospective operation, that interpretation will 
never be adopted without absolute necessity: Blanchard v. 
Sprague, 3 Sum. 535; Vansickle v. Haines, 7 Nev. 249. As 
tliis law, being general in its terms, can not be held to operate 
retrospectively, it follows that the defendant's patent of June 
15, 1865, and the complainant's of September 15, 1864, are in 
no manner qualified by this act, passed subsequent to their 
issue. As against these patents, neither can claim any right 
to tlie use of the water by virtue of prior appropi'iation or 
possession, but, in respect to them, their rights to the water 
must be fixed by the law applicable to them as owners of the 
soil through which the stream naturally flows. 

But if, when the act was passed, the defendant had such a 
riglit by priority of possession as that act contemplates, upon 
the construction which must be given, that right is confirmed 
in him, and he is entitled to protection as against one claiming 
as riparian proprietor merely, through a patent issued after, 
and when no right had vested in the patentee before the act 
became a law. The statute is, in effect, incorporated into 
such subsequent patent, and operates as au exception out of 
the estate granted to the complainant by the patent of Octo- 
ber 10, 1866. If we have riglitly interpreted the act of Con- 
gress, and the operation of the patents issued before and after 
tiie passage of that act is as we have stated, the case stands in 
tliis wise: The defendant's claim by virtue of adverse enjoy- 
ment, falls to the ground, because sufficient time, has not 
elapsed since the lower premises were conveyed by the govern- 
ment. He can not sustain his claim by force of tjie act of 
Congress, because the complainant's patents of September, 
1864, were made before the act was passed, and conveyed the 
upper premises absolutely, and free from any claims by prior 
possession merely. We have hitherto been considering the 
questions of prescription and the act of Congress separately, 
as it was desirable to determine the efieet of the act and of 
the patents upon these water rights. But the complainant 
having taken the lower premises, subject to such right as the 
defendant had acquired by priority of possession and the act 
of Congress of 1866, if he had also acquired by adverse use, a 



100 Ikuigation. 

right, las against the proprietors of the upper premises, to di- 
vert and use the same quantity of water in the same manner 
that he would have by virtue of his prior appropriation, this 
would be a complete defense to this action, for the complain- 
ant's right would not be infringed by the diversion, eitiier as 
proprietor of the upper or lower premises. It is tliereforo 
necessary to ascertain whether there has been in fact such ad- 
verse use by defendant as affords a presumption of a grant 
from the proprietor of the upper premises of the complain- 
ant. 

The answer of this defendant sets ouj; his prescriptive right 
as follows: "Tiiat for more than five years prior to the com- 
mencement of this suit, he has, during the irrigating season 
of each year, under claim of right, openly, continuously and 
peaceably, and adversely to the complainant and all persons 
whatsoever, used the waters of said Carson river in irrigating 
said land, and the crops of grass, grain and vegetables grown 
thereon, and for stock and domestic purposes; whereby de- 
fendant has acquired the absolute and exclusive right to use 
a part of the water of said Carson river in manner and for 
the purposes aforesaid." 

The claim is of a right to nse a part of the water of tlie 
river during the irrigating season, for irrigation, stock and 
domestic purposes. The bill charges the unlawful diversion 
to have commenced on the first day of July, 1871, and con- 
tinued until the commencement of this suit, August 4, 
1871. The testimony shows that the irrigating season upon 
the defendant's land, for grain, ends on or before the first of 
July, and for grass, from the first to the middle of July. 
Prior to the issue of complainant's patent of September 15, 
186i, we have seen the five years could not commence to run 
in defendant's favor. The patent having been issued after the 
irrigating season of 1864 was over, the earliest moment the 
time could begin is the irrigating season of 1865. But the 
defendant's use is not adverse until it becomes injurious to 
the complainant, and amounts to an actionable invasion of its 
right: Ralormn v. Boiling Spring Co., 14 K J. Eq. 335; 
Angell on W. C. 386-, Washburn on Easements, 125. ' It is 
not sufficient to show a use of the water in a particular way 
but it must also appear that such use caused such injury to 



Union Mill and Mining Co. v. Fekkis. 101 

the complainant as would justify an action for Its redress. A 
thorough reading of the testimony fails to show any such use of 
the water in the irrigating seasons of 1865 or 1866 (and we 
need go no further) as amounts to a violation of the complain- 
ant's right, or as would have justified an action against the 
defendant. Lightle testifios that " water was used on the land 
continuously since 1860 until 1870. The water was used on 
the land during the irrigating season, and at other times it 
ran through the ditch." The capacity of the Lightle ditch is 
the same now as in IStil, but what the capacity was is not 
shown. Lightle further saysthat daring the years 1861-2-3 - 
4 "a great deal more" water was used on the Lightle land 
than in subsequent years. How much less in later years does 
not appear. Nor does it appear what quantity of water was 
diverted in 1865 and 1866, nor how much was absorbed or 
lost, nor what surplus found its way back into the river. Nor 
is it shovn that the complainant was injured at its mill in the 
month of July of those years by lack of water to run its ma- 
chinery. The witness McGill states that in 1863 there was 
not sufiicient water to run all the maehinerj'^ in the mill in 
August, September and October; that in 186Q the supply was 
about the same as ip 1865, and that in 1867 he don't think 
the machinery of the mill was much retarded. If any infer- 
ence could arise, from this lack of water, that the defendant's 
use was tlie cause, or partially so, it does not aid the defend- 
ant; because the scarcity in those years occurred after the close 
of the irrigating season, and, consequently, at a time when the 
defendant does not claim a right to divert the water and use it 
for irrigation. It is not shown by the testimony that in these 
years of 1865 and 1866 the use of the water by 'defendant 
during the irrigating season of those years caused any injury 
to the complainant. It devolves on the defendant to show 
when liis adverse use began, or that it began at least five years 
before the bringing'of this suit. This he has not done. So 
far as appears, his use of the water during the irrigating sea- 
sons of 1865 and 1866 may have been a reasonable and proper 
exercise of his riparian rights, and entirely consistent with the 
coniplainant?s full enjoyment of its right to use the water. 
For without deciding hereto what extent water may be used 
for irrigation, it w'll not be denied that a riparian proprietor 



102 Ikrigatioit. 

may lawfully make some use of it for that purpose, so that the 
simple fact that the water was used for irrigation, does not 
show that the complainant's right was violated. The defend- 
ant does not even show that his nse of the water, in the years 
mentioned, sensibly diminished the water in tiie river, and if 
it did not, the complainant was not injured actionably, under 
the narrowest rule laid down in any case. The adverse use 
must be under claim of right. Defendant, in his answer, al- 
leges his use to have been under claim of right during the 
irrigating season, and he must be confined to that Jperiod, 
The burden of proof is on him, and he must establish hia ad- 
verse enjoyment in the most satisfactory manner, before the 
court can indulge in any presumption that tiie complninant 
granted to him any material portion of tiie motive power of its 
mill. For this failure to show, by clear and unequivocal 
proof, that subsequent to the complainant's patent of Septem- 
ber 15, 1864, and five years anterior to the commencement of 
this suit, the use &f the water amounted to an actionable in- 
vasion of the complainant's riglit, the defendant's claim of title 
by prescription must be denied. 

It remains to determins whether the defendant, as alleged 
in the bill, wrongfully diverted water from the river between 
the first day of July and the fourth day of August, 1&71. 

A large part of the testimony submitted was taken in other 
causes, and, by agreetneut of counsel, used in this; and so 
much of it has no bearing on this case that it has been found 
somewhat diflicult to arrive at the facts. Tiie following, how- 
ever, may be stated as bearing on the question now to be de- 
cided: 

The climate of Nevada in the summer is arid. The year 
1871 was an unusually dry one, and less water ran in Carson 
river than ever before known; and in the latter part of Jn]y, 
and in August and September ot that year, there was less 
water by one half than in ordinary seasons. In the months 
of July and August, 1871, the complainant's mill could not 
be operated for want of sufficient water, and had to suspend. 
One Daiiberg fanned the Lightle (defendant's) land In 1870 
and 1871, Lightle himself having left his farm in 1870. 
Lightle's land is agricultural, and requires irrigation to make 
it productive. The Lightle ditch is taken out of the east fork 



Union Mill and Mjning Co. v. Feekis. 103 

of Carson river, at a point in section 5, township 12, a consid- 
erable distance from tlie Liglitle land, wiiicli is situated on 
other sections, and through it water is conducted onto that 
land. The capacity and grade of the ditch are not stated, but 
Lightle's answer admits a diversion since the first day of 
July, 1871, of *' about two thousand inches as it flows)," part 
of which was used by Danberg on his own land. Danberg 
says he ran the ditch as full as he could get it in 1871, and 
at times, used one half of the water on Lightle's and one 
half on his own land; at other times, when not needed on 
Lightle's land, the whole was carried onto his. The Lightle 
land embraces two hundred and thirty-eight acres, but how 
much of it was under cultivation in 1871 does not appear. 
It lies, in the main, between the east and west forks of Carson 
river, which unite above the complainant's premises. It ap- 
pears that a part of the water used on the Liglitle land' does 
"find its way" into the west fork and some into the east; but 
in both cases after it has left the defendant's land. As to the 
quantity or proportion of the water returned to either fork 
there is nothing definite. Witness, Read, who was there in 
July and August, 1871, says very little, if any, found its way 
back to the river. The east fork is on higher ground than 
the west, and water runs ofi' from it to the west naturally. It 
does not appear what quantity of water was flowing in the 
east tbrk at Lightle's in July, 1871. Many other persons were 
divertinff water from both the east and west forks in Julv and 
August of that year. As before said, the " irrigating season" 
as respects the Lightle land ends, for grain, July 1, or before 
that; for grass, from the first to the middle of July. Some 
seasons, Lightle says, he does not need water at all fcr irrigating 
grain. It is not shown how many acres of Lightle's land were 
cultivated for grass or for grain. Danbergsays he farmed the 
Lightle land, and that is all there is on this point. It does 
not appear that in 1871 any of the water was used on Liglitle's 
land for household purposes, or for watering stock, and as 
Lightle was not living on the land this year, probably the water 
was used for the sole purpose of irrigation. 

There can be no doubt, in this case, that the diversion of 
the water onto Lightle's land, and allowing it to be absorbed 
there after July 15th, when the irrigating season was over, was 



104 iKRIGATlOIir. 

an nnreasonable use of the water, and the complainant is en- 
titled to relief so far. The defendan t does not claim a right to 
BO use the water, except during the irrigating season. As to the 
period from the first to the fifteenth of July, a part of the irri- 
2'atin"' season, it is necessary to determine whether the defend- 
ant has the right to use the water for irrigation to any extent, 
and if he has, to what extent. The complainant denies his right 
to use the water for irrigation to its injury in any degree. 
Tiie defendant, on the other hand, claims that in a hot and 
arid climate like ours, water may not only be used for that 
purpose, but it is a natural want, like the thirst of men and 
cattle, to satisfy -which the riparian proprietor, who has the 
first opportunity, may consume, if necessary, the whole stream ; 
and that such use under the conditions existing here is reason- 
able. 

The law on this subject is stated by Chancellor Kent in 
the third volume of his commentaries, and has very fre- 
quently been quoted, both by the courts of England and 
America, with unqualified approbation. It is this: "Every 
proprietor of lands on the bank of a river has naturally an 
equal right to the use of the water which flows in the stieam 
adjacent to his lands, as it was wont to run (currere solelat^ 
without diminution or alteration. No proprietor has a riglit 
to use the water to the prejudice of other proprietors, above 
or below him, unless he has a prior right to divert it, or a 
title to some exclusive enjoyment. He has no propert}' in 
the water itself, but a simple usufruct as it passes along. 
Though he may use the water while it runs over his land, 
he can not unreasonably detain it, or give it another direction, 
and he must return it to its ordinary channel when it leaves 
his estate. Without the consent of the adjoining proprie- 
tors he can not divert or diminish the quantity of water 
which would otherwise descend to the proprietors below, nor 
throw the water back upon the proprietors above without a 
grant, or an uninterrupted enjoyment of twenty years, which 
is evidence of it. This is the clear and settled doctrine on 
the subject, and all the diificulty that arises consists in the 
application. Streams of water are intended for the use and 
comfort of man; and it would be unreHsonable and contrary 
to the universal sense of mankind, to debar every ripariaa 



UifiON Mill ajstd Mining Co. v. Ferris. 1C5 

proprietor from the application of the water to domestic, 
agricultural and manufacturing purposes, provided the use 
of it be made under the limitations mentioned; and there 
will, no doubt, inevitably, in the exercise of a perfect right to 
the use of tlie water, be some evaporation and decrease of it, 
and some variations in the weight and velocity of the cur- 
rents. But de minimis non curat lex, and a riglit of action 
by the proprietors below would not necessarily flow from 
sucli consequences, but would depend upon the nature and 
extent of the complaint or injury, and the manner of using 
the water. All tliat the law requires of a- party by or over 
whose land a stream passes, is, that he should use the water 
in a reasonable manner, and so as not to destroy or render 
useless, or materially diminish or affect the application of the 
water by the proprietors above or below on the stream." In- 
England it seems that a proprietor is not permitted to use 
water for irrigation, if thereby he sensibly diminishes the 
stream: Wood v. Waud, 3 Exch. 746; Emhrey v. Owen, 6 
Exch. 353. In this latter case it was said: "Nor do we 
mean to lay down the rule that it would in every case be 
deemed a lawful enjoyment of the water, if it was again re- 
turned into the river with no other diminution than tliat which ' 
was caused bj' the absorption and evaporation attendant on 
the irrigation of the lands of the adjoining proprietor. This 
must depend on the circumstances of each case. On. the one 
hand, it could not be permii;ted that the owner of a tract of 
many thousand acres of porous soil, abutting on one part of, 
the stream, could be permitted to irrigate them continually 
by canals and drains, and so cause a serious diminution of the 
quantity of water, though tliere was no other loss to tlie nat- 
ural stream than that arising from the necessary absorption 
and evaporation of the water employed for that purpose; on 
the other hand, one's common sense would be shocked by 
supposing that a riparian owner could not dip a watering-pot 
into the stream in order to water his garden, or allow his 
family or cattle to drink it. It is entirely a question of de- 
gree; and it is very difficult, indeed impossible, to define pre- 
cisely the limits which separate the reasonable and permitted 
use of the stream from its wrongful application." And it was 
there held, that, as the " diminution of the water was not per- 



106 Ierigatiokt. 

ceptible to the eye," tlie use of it by tlie defendant for irriga- 
tion was not unreasonable, or prohibited by law. Actual, 
perceptible damage, it seems, would give a right of action. 
In cur own country, while any general or nnlimited right to 
use water for irrigation has been denied, -it has sometimes 
been said, that owing to differences in the climate and the 
size of the streams, a more liberal use is allowed than in 
England. In Maine, it is held that a proprietor mny 
make a reasonable use of the water for domestic purposes 
for watering cattle, and even for irri_<fation, provided it 
is not unreasonably detained, or essentially diminished: 
Blanohdrd v. Baiter,, 8 Greenl. 253. In Connecticut, the 
doctrine is thus stated: " The right of the defendant to nse 
the stream for purposes of irrigation can not be questioned. 
'But it was a limited right, and one wliioii could only be ex- 
ercised with a reasonable regard to the ri^iit of the plaintiff 
to the use of the water. She was bound to apply it in sucii a 
reasonable manner and quantity as not to deprive the plaint- 
iff of a sufHcient supply for his cattle." Gilbert v. Johnson, 
30 Conn. 180. Tlie stream in question rose on tlie defendant's 
land, and naturally flowed to the plaintiff's, who had a place 
on his land for watering his cattle, and the wliole stream 
could be run in a half-inch pipe. The Supreme Court of 
Massachusetts say: "That a portion of the water of a stream 
may be. used for the purpose of irrigating land, we think is 
well established, as one of the rights of the proprietors of the 
soil along or through which it passes. Yet a proprietor can 
not, under color of that right, or for the actual purpose of ir- 
rigating his own land, wholly abstract or divert the water- 
course, or take such an unreasonable quantity of water, or 
make sucli unreasonable use of it, as to deprive other pro- 
prietors of the substantial benefits which they miaht de- 
rive from it if not diverted or used unreasonably." Elliot v. 
Fitohburg B. R. Co., 10 Cush. 191. In New York, " the 
defendant has aright to use so much water as js necessary 
for his family and his cattle, but he has no right to use it for 
irrigating his meadow if thereby he deprives the plaintiff of 
the reasonable use of the water in its natural channel." Ar- 
nold V. Foot, 12 Wend. 330. It would be useless to cite or 
quote more from the numerous cases on this subject. The re- 



Union Mill and Mining Co. v. Feeeis. 107 

suit of tlie authorities appears to be well expressed by Mr. 
Washburn in the late edition of liis work on " Servitudes and 
Easements," in the followin<r language: 

"The right of a riparian proprietor, j'mto naturm, to divert 
water from a stream, when reduced to a simple propositioti, 
seems to be this: He may not doit for any purpose except do- 
mestic uses, and that of irrigating his land; and whetlier and 
to what extent he may do the latter, depends, in each particu- 
lar case, upon whether it is reasonable, having regard to the 
condition and circumstances of other proprietors upon the 
stream; and this is to be determined in all cases of doubt by a 
jury. Bnt in no case may he do this so as to destroy, or ren- 
der useless, or materially diminish, or affect the application of 
the water by other proprietors." Washb. (m Eas. and Serv., 
2d Ed. p. 2i0, 12. The fundamental priticiple upon which the 
authorities all go is this: Tliat every proprietor of land, 
through or by which a stream of water flows, may make a rea- 
sonable use of it for any useful purpose. Wliat is a reasonable 
use depends on the circumstances of each case, and can not 
be stated in a general rule. Every proprietor along the stream 
has an equal right to its use and benefit. All have a usufruct; 
none have any absolute property in the water, and no one has 
a right to use it unreasonably to tlie injury of his neighbor, 
above or below. It is sometimes stated that tlie proprietor 
above may exhaust the stream for household purposes, and for 
watering his cattle; and that to this extent, having the first 
opportunity, he has a preferred right. If this be so, i't is still 
upon the ground that the use is reasonableiinder the circum- 
stances. No case is recollected where this precise question 
was necessarily involved; and it may admit of question 
whether an upper proprietor on a small stream would be 
permitted to consume the whole of it in watering his cat- 
tle, and deprive his neighbor below of sufficient water to 
quench the thirst of himself and family. In some cases, the 
wants of Riparian proprietors have been divided into natural 
and artificial; natural wants being primary wants, and such 
a,s are absolutely necessary to be supplied, such as thirst of 
people and cattle; and artificial wants being secondary, and 
such as are simply for the comfort, convenience or prosperity 
of the proprietor; and these latter are held to be subservient 



108 Ieeigation. 

to the former: Angell on "Watercourses, 210, 1. In Evans 
V. Merriweather, 3 Scam. 496, tlie Supreme Court of Illinois 
make this division of wants, and say that while water for irri- 
gation is an artificial want in Illinois, in a hot and arid climate 
it would be a natural want. There was no question in that 
case in regard to irrigation, and the remark is simply dictum. 
The Supreme Court of Texas, in Rhodes v. Whitehead, 27 
Texas, 304, said upon this subject: " It may be admitted that 
the purpose of irrigation is one of the natural uses, such as thirst 
of people and cattle, and household purposes, which must 
absolutely be supplied; the appropriation of the water for this 
purpose would therefore aflPord no ground of complaint by the 
lower proprietor if it were entirely consumed," and they cite 
Evans v. Merriweather. The question evidently received no 
consideration, but the court made the admission, as courts 
often do, because, admitting snch a right to use the water for 
irrigation, the^ defendant in that case had exercised his right 
in an unlawful manner, and the case went oif on that point. 
These two cases are the only ones referred to as sustaining 
the defendant's claim that water for irrigation is, in this cli- 
mate, a natural want, and we are asked to class it with the want 
of water to quench thirst of men and cattle. To put the use 
of water for irrigation upon the same footing as the use of it 
to satisfy thirst, is to say that an upper proprietor may take 
the whole stream, if needful to the growth of vegetation upon 
his land, and leave those below him without water to drink. 
This certainly can not be law in any climate. But " water for 
irrigation " is not a natural want in the same sense that water 
to quench thirst is. If it were it could not be made to depend 
upon the climate. Water is a natural want of man and beast 
in every country and climate. So water is a natural want of 
vegetation everywhere, without reference to the climate, for 
the laws of vegetable growth are the same in Illinois and in 
Nevada. Irrigation is a mode of applying water to satisfy 
this want. Hence it does not seem to be entirely accurate to 
say that "water for irrigation " is a natural want in Nevada 
and not so in Illinois. What is true, undoubtedly, is, that 
there exists in this climate a greater necessity for tlie applioa- 
tion of water to the purpose of irrigation than in countries 
where the rain falls during the summer months, and this may 



Uniok Mill and Mining Co. v. Ferris. 109 

be a proper fact to consider in determining tlie question of 
reasonable use. To lay down the arbitrary rule contended for 
by the defendant, and say that one proprietor on the stream 
has so unlimited a right to tiie use of the water for irrigation, 
seems to us an unnecessary destruction of the rights of other 
proprietors on the stream, who liave an equal need and an 
equal right. Tlie more we examine the more we become im- 
pressed with the wisdom of tlie common law rule, that each 
proprietor may make a reasonable use of the stream, and that 
wliat that is depends upon the circumstances of each case. It 
will also be seen from the rule, as -before stated, that the quee- 
tlon of reasonable use is not to be determined solely by the 
wants of the party using the water — whether the amount is 
reasonably sufficient for his own lawful purposes — but refer- 
ence must also be had to the rights and needs of other pro- 
prietors upon the stream. "The necessities of one man's 
business can not be made the standard of another man's rights 
in a thing which belongs equally to both." Wheatley v. 
Uhrisman, 24 Penn. St. 302; Brace v. Tale, 10 Allen, 447; 
Hayes y.Waldron, i:4:l^. H. 583-4. No more definite rule 
can be safely laid down which will be of universal application. 
Under this rule the character of the soil and climate, instead 
of fixing the right absolutely, become circumstances only to 
be weighed in determining the question of reasonable use. 
The climate of Nevada is arid in the summer season, and the 
soil then needs irrigating to make it productive, but not al- 
ways to the same extent. In the valley of the Carson river, 
some of the land needs little or no irrigation, other portions 
require a great deal. The defendant's land requires less water 
than that of his neighbor Danberg. Indeed, some seasons he 
says it needs no water for irrigating in order to raise grain. 
This must be considered in ascertaining the extent to which 
Liwhtle may reasonably use the water. There will also enter 
into the inquiry the nature and size of the stream; the uses to 
which it can be or is applied ; the nature and importance of the 
use claimed and exercised by one party, as well as the incon- 
venience or injury to the other party; the proportion of water 
diverted, compared with the whole volume of the stream; the 
quantity lost and abaorbed ; the manner of taking and conduct- 
in^ the water onto the land; the mode in which it is used 



110 Ibrigation. 

there; the quantity of land under cultivation; the kind of crop; 
the means adopted for returning the water to its natural course; 
and all other matters bearing upon the question of fitness and 
propriety in the use of the water: Hayes v. Waldron, 44 
N. H. 580; Tlvmler v. Martin, 2 Gray, 394. And it may 
occur that a use reasonable one season will become unrea- 
sonable at another. Wheu the Oarson river is full it is a 
large stream, and probably every proprietor might then use 
so much water as he saw fit, for irrigation or any otiier use- 
ful purpose, without affording any ground of complairit to 
those below hira, while at low stages of water such an exten- 
sive use might cause great injury, and could not be permit- 
ted. When there is an insufficient quantity to satisfy all the 
wants of all, if it is possible to do so, is it not more reasonable 
to apportion the water as fairly as may be among the pro- 
prietors, than to permit one who happens to be above to sat- 
isfy all his wants without regard to those of his neighbor 
below? In regard to the comparative benefits derived by 
our community from mining and agriculture, or the injury 
which it will sustain by fostering one at the expense of the 
other, they may be questions involved in the consideration of 
what constitutes a reasonable use. Irrigation must be held, 
in this climate, to he a proper mode of using water by a 
riparian proprietor, the lawful extent of the use dependins^ 
upon the circumstances of each case. "With reference to these 
circumstances the use must be reasonable, and the right must 
be exercised so as to do the least possible injury to others. 
There must be no unreasonable detention or consum])tion of 
the water. That there may be some detention and some 
diminution follows necessarily from any use whatever. How 
long it may be detained or how much it may be diminished 
can never be stated as an arbitrary or abstract rule. It is 
now only necessary to apply these principles to the circum- 
stances of the case in hand. After the middle of July, as we 
have said, the diversion was unjustifiable because the" irr locat- 
ing season had then closed. As to the period from the first 
to the middle of Jnly, there was manifestly an unreasonable 
use and waste of water, but the testimony is not so clear and 
full upon some points as "we could wish. We are not in- 
formed with any degree of precision what quantity of water 



Union Mill and Mining Co. v. Ferris. Ill 

was then flowing in the river; what crop was irrii^atecl, al- 
tliough it may be presumed that it was hay or gr9,in, or botli; 
what quantity was diverted beyond the very indefinite ad- 
mission in the answer of " about 2,000 inches as it flows"; 
what quantity of wiiter would iri'igate tlie defendant's land, 
nor how many acres were under cultivation, nor how much 
water was returned to the' river. We do know thab the ditch 
was kept full of water; that a portion of the time one half of 
the water was used on the Lightle land, and one half on Dan- 
berg's, and that at other times, when not wanted on the Lightle 
farm, it was all used on Dan berg's. 

It may also result from the principles established by the 
authorities, that the riparian owner is only entitled to take 
the water from the stream on his own land, returning it to 
the stream before it leaves bis land. This point does not 
appear to have been expressly decided, but whenever the 
authorities allude to it at all, they speak of tajving tlie water 
on the land of the riparian proprietor, and returning the 
surplus before it leaves the land, as though this was a well- 
recognized condition of a proper use. However this may be, 
it would not be permissible to take the water at some dis- 
tance above, and return the surplus at some distance below, 
the land of the riparian proprietor using the water, if, there- 
by, a considerable portion of it would be wasted before reach- 
ing the land, or after leaving it, and before it is returned to 
the stream, to the injury of other riparian propr etors below. 
At all events, this circumstance would have an important 
bearing upon the question of reasonable use. 

The defendant diverts the water at a point considerably 
distant from his land, and his ditch does not return any of 
the Water to the river, but either conducts it onto Dan- 
berg's farm, or leaves it, principally, to flnd its way 
through sloughs or down the natural declivity to the west 
fork, more than a mile distant, some little, perhaps, to the 
east fork, whence it is taken. This statement, we think, 
shows that the use made of the water by the defendant at 
the period in question was unreasonable, and amounted al- 
most to wanton waste. Certainly, the defendant can not, by 
virtue of his ownership of the soil, justify the diversion of 
twice as mnch as lie needed on his own land, and permit 



112 Irrigation. 

the other lialf to rnn upon the land of another. Nor does 
it seem that the defendant can justitj the diversion of so 
much as 1,000 inches of water " as it flows" to irri,i>ate his 
grass land. For althongh this quantity is qnito indefinite, it 
is evident that 1,000 cubic inches of water constantly flowing 
is a very considerable quantity, even if we admit the grade of 
the ditch, which is not given, to be slight. 

From the testimony of Klauber as to his own land, it 
appears that 400 inches of water would irrigate 400 acres of 
land, if kept constantly flowitig. But as the grade of the 
defendant's ditch is not given, we have no means of knowing 
how much the 1,000 inches " as it flows" exceeds one inch to 
the acre of defendant's 238 acres, as measured by Klauber. 

Upon the case as now presented no flnal decree, which will 
properly adjust the rights of the parties, can be entered. The 
case must be referred to a master to make inquiry and report, 
whether the defendant has adopted the mode which causes 
least waste in taking the water from the river, and if not, 
what mode consistent with the fair and beneficial use of the 
water by him can be adopted; what means are employed to 
. return the water to its natural channel, and are they the 
means best calculited to prevent waste; if not, or if none have 
been employed, what method will best effect that object; what 
amount of water per acre is needed during the irrigating season 
to irrigate defendant's land; soirte standard of measurement of 
the water, and the quantity, measured by such standard, flowing 
in the river and in defendant's ditch at the time mentioned in 
the bill. Until the court is in possession of these facts it is 
not possible to determine the extent to which the use by the 
defendant was unreasonable, and to which he ought to be 
enjoined. The decree of the court must be drawn no accord- 
ingly, and all other matters are reserved until the coraino- in 
of the master's report. 



Union Mill, and Mining Co. v. Dangbeeg. 113 
^ Union Mill and Mining Co. v. Bangberg et al. 

(2 Sawyer, 450 . U. S. Circuit Court District of Nevada, 1873.) 

2 No presumption of grant from adverse use of water. In order to raise 
a presumption of a grant from the adverse use of water, such use must 
have been peaceable and with the acquiescence of the owner of the serv-' 
ient tenement; if such owner remonstrated against the use of the 
water by the dominant tenement for the purposes of irrigation, this is 
sufficient to show that the use was not acquiesced in. 

Adverse use without actual damag^e. There may be an invasion of the 
right which will justify an action although no actual damage is shown ; 
as, if one should divert a portion of the water permanently from the 
stream, such a diversion, if continued the requisite length of time would 
ripen into a title; but if the riparian pioprietor only exercises his natural 
right in the use of the water without damage to the servient tenement, 
then the use is not adverse. 

Riparian rights before patent— Act of July 26, 18G6, One who has 
entered and paid for land and received a certificate of purchase, but no 
patent, is yet entitled to claim and exercise riparian rights; and so, tno, 
of one who has entered land under the Homestead Act, and one who 
entered and paid for his land prior to the passage of the act of Congrcsti 
of July 26, 1866, is not affected by it. 

Unreasonable use of water. A use of water which is unreasonable is such 
as works actual, material and substantial damage to the common right; 
not to an exclusive right to all the water in its natural state but to the 
right which each proprietor has as limited and qualified by the precisely" 
equal right of eveiy other proprietor. ' ' 

Use of water for domestic pnrposes, etc. Every proprietor may, in the 
exercise of the common right, consume so much water as is necessary for 
his household and domestic purposes, and for watering his stock. 

' Injunction — Tlie threatened continued use of water for irrigating, to 
the injury of another, is of that class of "continually recurring griev- 
ances " which only equity can redress. 

Form of decree between mill-man and irrigator. "Where there was a 
right in one to a first use and a right to the surplus in another, and 
(owing to its variable flow) the water could not be divided by inches, 
the decree was drawn restraining diversion of the water to the injnry 
of plaintiff, with a proviso allovving use of surplus to the defendant. 

* Apportionment of costs in equity. 

1 See, generallj, the note to Vaiisickh v. Haines, post Watke; and Irri- 
gation notes, 8 M. R 136. 
^ Smith. V. Logan, 1 West C. R. 391. 
' Wilcox V Hausch, 1 West Coast R. 481 
* Irwin V. Davidson, 7 M. R 237. 
TOL. vin— 8 



114 lEBIGATIOlir. 

.Before Sawtee, Circuit Judge, and IIillykb, District 
Judge. 

Injunction Bill. The facts appear in the opinion, and in 
the case of tlie same plaintiff against Ferris, reported ante. 
(8 M. R 90.) 

Sunderland & Wood and Willta.ms & Bixler, for plaint- 
iff. 

Clarke & Lyon, K. S. Mesick and Clayton & Davies, 
for defendants. 

By the Court, ITillyer, J. 

Eleven suits were commenced by the plaintiff in the year 
1871, against various persons, to restrain them from an 
alleged wrongful diversion of the waters of Carson river. At 
tiie March term of 1872, the case of one defendant, Albert 
Ferris, was argued and submitted. Several points decided in 
that case arise in tliem all, and as onr opinion remains un- 
changed in respect to them, they will not be discussed again 
now. {Ante.) After that decision was announced, decrees 
were enteied in six of the eleven cases, upon stipulation of 
counsel. The remaining five cases have now been submitted, 
and such points as were not determined in the case of Ferris 
will be briefly noticed, with tlie principles wliich have' con- 
trolled tlie court in the rendition of final decrees. 

In tlie first place the defendants, 11. F. Dangberg, II. A. 
Dangberg, A. Klanber, F. A. Frevert, Jones, Squires and 
Winkleman, claim that they have a good defense through an 
adverse use and enjoyment of the waters for the required 
length of time. 

The qualities which an adverse use must have to support 
a claim of title thereby, wre well settled. The user must be 
neither secret nor forcible, nor by request, but open, peace- 
able, and as of right. 

The user, to be peaceable, must be with the acquiescence of 
the owner of the servient tenement. A user which such owner 
opposes by word or deed becomes forcible, and thus lacks an 
essential .element,, without wliich the use gives no title, and 



Union Mill and Mining Co. v. Dangbekg. 115 

raises no presumption of a grant. If, says Mr. "Washbiirn, it 
should Hppear that during the period of tlie alleged acquisition 
of ail easement by use and enjoyment, the owner of the servient 
ten'ement resisted such claim or opposed sjich use, it would 
negative the claim: "Wash, on Easements, 154. In Powell 
V. Bayg, 8 Gray, Ml, it was said that the title to an easement 
rests chiefly on an acquiescence in an adverse use, and evi- 
dence which disproves the acquiescence rebuts the title to the 
easement. By the civil law, any enjoyment or user was 
deemed forcible to which opposition was offered, either by 
word or deed, by the owner of the servient tenement, and a 
thing was never presumed to be burdened with a servitude 
where a doubt existed: Angell on Watercourses, Sec. 210; 
Kauf. Mack, 323. When the owner of the servient tenement 
frequently remonstrated against the diversion of the water, it 
was held that there could be no presumption of a grant: 
Stillman v. White Booh Co., 3 W. & M. 538. 

The evidence in these cases proves that the plaintiff did not, 
during the five years of alleged adverse use, acquiesce in any 
use of the water by the defendants beyond that which they 
might lawfully make of it as riparian proprietors. 

It appears that during that period the plaintiff and its 
predecessors, owners of the Merrimac mill, have asserted 
t'.ieir right toall the water which their mill-race would carry, 
that they have denied the right of the defendants to obstruct 
or divert the water to their injury, and have repeatedly 
remonstrated with them against their excessive use of the 
water in irrigation. 

During the irrigating seasons of the years 1865, '66, '67, 
'68, and '69, the owners of the Merrimac mill, together with 
other mill-owners on the river, caused a notice to be printed 
and distributed and posted through the Carson valley, in the 
vicinity of these defendants, notifying ranchmen and others 
" that any diversion of, or obstruction to the flow of the water 
of the Carson river, to the injury of any of the mills thereon 
will be resisted by all means which the law affords. The 
rights of said mills to the full flow of the water of said river, 
as already established by the courts, will be insisted upon and 
enforced." Men were employed to go through the valley, visit 
each farmer, distribute these notices, and remonstrate with the 



116 Ierigation. 

farmers against their excessive consumption of the water for 
the purpose of irrigation . Here we have a denial of the right 
to use whenever the use was injurious to the plaintiff, and it is 
impossible to ho!d»that the user was uninterrupted and peace- 
ful, or to presume a grant. 

Tlie Statute of Limitations of this State bars an action to 
recover real property unless the plaintiff was seized or pos- 
sessed of the property within five years before its commence- 
ment. In analogy to this statute, the length of time necessary 
to confer title to an easement by adverse use, is fixed at five 
years by the courts. This is the only operation the statute 
has in these cases. To ascertain the requisites of an adverse 
use we still look to the common law, except as to the length of 
time it must continue, and that we fix in analogy to the local 
statute. If tliere has been an adverse use, in tlie legal sense, 
for five years, that gives title, and no grant need be produced 
toestablisli it; agrant will be presumed. Presuming a grant 
is in most cases a fiction of law; the court rarely believes the 
grant ever iiad an existence. Tiie presumption, then, is not 
made because the evidence justifies the court in believing that 
a grant was once in fact made, but because it shows an adverse 
enjoyment for the required length of time, and possessing all 
the other requisite qualities. Tiierefore evidence which shows 
that the use of the defendants lacks the essential and indis- 
pensable requisite of acquiescence on the part of the plaintiff", 
prevents the presumption from arising. 

That there may be, as argued by defendants, an invasion 
of the plaintiff's right which will justify an action witliont 
showing actual damage, is not questioned. But in applying 
this doctrine a distinction must be taken between those uses 
of the water which are the exercise of the ^-iparian proprietor's 
natural right and those which are not. Such proprietor has 
a right to use the water for the purpose of irrigation as inci- 
dent to his ownership of the land; the right is not acquired 
by use. The only limitation is, that he must so use tlie water 
as to cause no actual material damage to another- and of 
course, no cause of action against him arises until such dam- 
age has resulted. On the other hand, one proprietor has no 
right to divert, in j;he technical sense, any portion of tlie water 
permanently from another, so that it either does not return to 



Union Mill and Mining Co. v. Dangbeeg. 117 

the stream at all, or not until it has passed the land of him 
below. Snch diversion would be a clear violation of righti 
and if continued adversely for the requisite period, would 
ripen into title. An action, therefore, would lie for an in- 
jury to the right without proving actual damage, or showing 
that the plaintiff was making any practical use of the water. 
This distinction is important, and will reconcile much that 
seems conflicting in the books. If the plaintiff had no mill, 
and was making no practical use of the water, it would seem 
hardly possible to show that the defendants caused it any ma- 
terial or actual damage by tlieir use of the water for the law- 
ful purpose of irrigation. In this practical age it would be 
unworthy of a court of justice to notice the fanciful injury re- 
sulting from depriving the eye of the gratification of see- 
ing or the ear of hearing the full flow of the water. Those 
may be injuries in a certain sense, but they are of the kind to 
which the maxim, " de minimis non cv/rat lex" applies, as it 
does to the planting of a tree, which, in some degree, obstructs 
my neighbor's light, or kindling a fire in my chimuey which 
tends to lessen the purity of his air. So long as the plaintiff 
has enough for its lawful, practical uses, it ought not and can 
not be permitted to debar other riparian proprietors from ap- 
plying so much water as they profitably can to agricultural 
purposes. It follows that the plaintiff lost no right, and the 
defendants gained none, by defendants using the water for ir- 
rigation. Tlie plaintiff might safely concede the right to use 
the water for that purpose while it suffered no actual dam- 
age. ^ , ^ _ 

We have seen that whenever it was damaged, it objected and 
denied the right of defendants to use the water to its injury. 
This is enough to defeat the title alleged to have been acquired 
b}' adverse enjoyment. 

A point made by the plaintiff is, that some of the defend- 
ants, who have entered and paid for their land, and received 
a certificate of purchase, but no patent as yet, have no title 
; by virtue of which they can -claim and exercise riparian rights. 
It is true that snch defendants have not the strict legal title; 
but it is settled that the entry and payment and certificate 
thereof convey the equitable title. Thereafter the land ceases 
to bo public, and the government has no right to sell it again, 
but hi.'kls the legal title in trust for the purchaser. The land 



118 Irrigation. 

is no longer the property of the United States, and may be 
taxed by the State without violating the compact not to tax 
United States property: People v. Shearer, 30 Cab 648; Car- 
roll V. Sqfford, 3 IIow. 441; Witherspoon v. Duncan, 4 Wal. 
210; Hughes v. United States, 4 Wal. 232. Tliey have also 
the actual possession as well as the beneficial estate or interest 
in the land, and as such possessors and equitable owners are 
entitled to enjoy all the incidents to the land and its owner- 
ship, as well as the land itself. The patent when issued re- 
lates back to the original entry, the inception of title, so 
far as is neeessany to protect the purchaser's riglit to the land: 
Id., and Gibson v. Chouteau, 13 Wal. 92. Upon these autiior- 
ities it is evident tl)at the plaintiff's objection is groundless. 
The defendants are, to all intents and purposes, the owners of 
the land, and entitled to riparian rights. So, too, we consider 
that the defendant, who has entered land under the Homestead 
Act and continues to reside thereon, being rightfully in pos- 
session in pursuance of a law of the United States, is entitled 
to use the water of the stream as other riparian proprietors 
may. 

We must also hold, since the patent when issued will relate 
back to the inception of title, that is, the original entry and 
payment, that one who entered and paid for his land prior to 
the passage of the act of Congress of Jnly 26, 1866, entitled 
" An act granting the right of way to ditcli and canal owners 
over the public lands, and for other purposes," has his laud 
and the water upon it unaffected by that act. 

We come next to the inquiry whether or not certain chan- 
nels, creeks and sloughs, as they are called, are natural water- 
courses. Without reviewing the evidence here, it is sufficient 
to state that we find "Brockliss Slough," "Cfi,^tonwood Slough,'' 
"Eock Creek Slough," the " Old Channel," and " Bangberg 
Creek," to be natural watercourses, and that the defendants? 
through whose lands they pass, have a right to use the water 
naturally flowing in them in a reasonable manner, for irriga- 
tion and other lawful purposes. 

Referring to " Dangberg Creek " and the " Old Channel," 
it appears that in former years so much water naturally flowed 
from the east fork into them as to flood and injure the farms. 
To remedy tliis, obstructions were placed in tJiese channels, at 
their heads, and the water led into them frotn other points; in 



Union Mill and Mining Co. v. Dangberg. 119 

the one case a little above, and the other a little below the old 
head. Tiiis slight change in the channels enables the defend- 
ants to control the flow of the water, and prevent injury to 
their farms, while it in no way damages the plaintiff. We 
do not regard these channels as any less natural watercourses 
since this change than they were before. 

The next step is to determine what is the test of a reasona- 
ble use. To state the question in another way: The defendants 
having a right to make a reasonable use of the water for irri- 
gation, when does their use become unreasonable? Mr. Jus- 
tice Story has stated the rule as clearly as it can be stated, prob- 
ably, in tlie following extract from his opinion in Tyler v. 
Wilkinson^ i Mason, 397: "There may be, and there must 
be, allowed of that which is common to all, a reasonable use. 
The trne test of the principle and the extent of the use is, whetli- 
er it is to the injury of the other proprietors of not; There 
may be a diminution in quantity, or a retardation or accelera- 
tion of the natural current indispensable for the general and 
valuable use of the water, perfectly consistent with the exist- 
ence of the common right. The diminution, retardation or 
acceleration not positively and sensibly injurious by dimin- 
ishing the value of the common right, is an implied element 
in the right of using the stream at all. The law here, as in 
many other cases, acts with a reasonable reference to public 
convenience and general good, and it is not betrayed into a 
narrow strictness subversive of common sense, nor into ex- 
travagant looseness, which would destroy private rights. 
The maxim is applied, sic utere tuo ut non alienwrn Iwdas." 
Chancellor Kent states the principle with equal clearness as 
follows: " All that the law requires of the party by or over 
whose land the stream passes is, that he should use tlie water 
in a reasonable manner, and so as not to destroy, or render 
useless, or materially diminish or affect the application of 
the water by the proprietors above or below on the stream." 
This is the law and the test by which the question of reason- 
able use or not is to be tried. As a definition of this " com- 
mon right, " spoken of by Judge Story, the language of Mr. 
Baron Pakke, in Embrey- v. Owen„ 6 Ex. 353, may be profit- 
ably quoted. He says: "This right to the benefit and ad- 
vantage of the water flowiii'^- past his land is not an absolute 
and exclusive right to the flow of all the water in its natural 



120 Ikkigation. 

state;, but it is a right only to the flow of the water and the 
enjoyment of it, subject to the similar rights of all the i)ro- 
pnetoi-s of the banks on each side, to the reasonable use of 
the same gift of Providence." To the same effect is tile lan- 
;;uage of Mr. Justice Nelson, in Howard v. Ingersol, 13 
How. 426: " l^o proprietor," lie says, " has a right to use the 
water to the prejudice of other proprietors, above or below, 
unless lie has acquired a prior right to divert it. He has no 
property in the water itself, but a simple usufruct wiiile it 
passes along. Any one may reasonably use it who has a 
right of access to it; but no one can set up a claim to an ex- 
clusive flow of all the water in its natural state; and tliat 
what he may not wish to use shall flow on till lost in the 
ocean." 

From these authorities it appears that the use which is un- 
reasonable, is such as works actual, material and substantial 
damage to the common right; not to an exclusive right to 
all the water in its natural state, but to the I'ight which each 
proprietor hasas limited and qualified by the precisely equal 
right of every other proprietor. The rule leaves the common 
right equal in times of plenty and of scarcity. Because the 
river is low and there is not siifiicient water to drive plaint- 
iff's mill, the proprietors above can not bo debarred from all 
.use. They may still use the water, taking care to do no ma- 
terial injury to the common right of plaintiff, iiaving regard 
to the then stage of the river. And at all times every pro- 
prietor may, in the exei'cise of this common right, consume 
so much water as is necessary for his household and domestic 
purposes and for watering his stock. 

Applying the test to the facts now before us, we find that 
the defendants did, at the time stated in the bills, use the 
water unreasonably to the injury of the plaintiff. This much 
we think clear, and it would serve no good purpose to com- 
ment upon the many volumes of testimony. We find, also, 
that the defendants threaten, and will, unless restrained, con- 
tinue to so use the water; indeed they insist now, and have 
throughout this litigation, on their right to use so much 
water as they need during the season of irrigation, without 
i-egard to the rights or wants of the plaintiff. This consti- 
tutes one of those continually recurring grievances which 
only a court of equity can adequately redress. 



Union Mill and Mixing Co. v. Dangberg. 121 

When we come to consider the terms of the decree, we 
find it impossible, however desirable such certainty may 
be, to measure out to the defendants a specific quantity of 
water in cubic inches flowingi ; linder a given pressure as 
reasonable, or to designate a certain number of acres of 
land which a defendant may at all times reasonably irrigate, 
and restrict him to that quantity of water or- number of 
acres. Counsel for the plaintiff, without admitting the cor- 
rectness of any such standard for determining a reasonable 
use, was willing to take decrees permitting the defendants 
each to irrigate one hundred and sixty acres of land, but 
defendants not consenting to this it could not be done. The 
changes in the volume of the Carson river during the sum- 
mer season, which naturally occur, are such that the quantity 
of water which a proprietor may reasonably consume varies 
continually. At times the melting snow gives an abundance 
for all, and the defendants can use it as they please, without 
any injury whatever to plaintiff. At other times a defendant 
might easily so apply the water in irrigating one hundred and 
sixty acres as to waste and diminish it, to the injury of plaint- 
iff. Sometimes, indeed, there is so little water flowing in the 
river, that if none were used by defendants, in consequence 
of the evaporation and absorption during the passage over 
the rocky and gravelly bed for fifteen or twenty miles, inter- 
vening between the defendants' farms and the premises of 
plaintiff, enough would not reach the plaintiff's mill to be of 
any practical use. At such time there would seem to be no 
good reason for saying that the use of the water by defendants 
is injurious to the plaintiff. For these, among other reasons, 
we think no such arbitrary standard of reasonable use can be 
• set up. 

Our conclusions in the five cases now under consideration 
are as follows: That the plaintiff is seized and possessed of 
the lands described in its bill, and the mill situated thereon, and 
as incident thereto, is entitled to the rights of a riparian propri- 
etor in the water of Carson river, flowing through and over said 
lands; that the defendants, with the exception of Charles 
Brodt, Godfrey Brodt, John Howard, Warren H. Smith and E. 
Liglitle, are seized and possessed of the lands described in their 
answers, through and over which the waters of the east or west 
ork, or some one or more of the natural streams before men- 



1 22 Irrigation. 

tioned, flow in their natural cliannel, and, as incident thereto, 
are entitled to the rights of riparian proprietors in the waters 
of tlie streams naturally flowing over their land, but are not 
entitled to any exclusive enjoyment of such waters, as against 
the plaintiff, by virtue of prior appropriation or adverse use; 
that between the first day of July, A. D. 1871, and the four- 
teenth day of August of tlie same year, the defendants, with 
the exception of E. Lightle, did use tlie waters of said streams 
unreasonably, to the injury of plaintiif; and that plaintiff is 
entitled to decrees against all of said defendants, excepting E. 
Lightle, perpetually restraining them frjimli verting the waters 
of Carson river upon their lands or elsewiiare, so as to prevent 
tlie same from flowing frealy to tlie Ian Is and mill of plaint- 
iflf, to tlie extent necessary for the lawful uses and purposes of 
plaintiff in carrying on upon its said premises tiie business 
of reducing metalliferous ores, or odiet lawful business in 
which it may now or hereafter be engaj;ed; the decrees to con- 
tain a proviso, in favor of all the defendants, except those 
named above as not owning lands on the stream; that nothiiii; 
therein contained shall be construed to prevent them from us- 
in I' the water of said streams, naturallv flowinsr throuirh their 
land, for the purpose of irrigating said land, or other lawful 
purposes of a riparian character, to such an extent, and so far 
as such use shall not cause actual, material and sub.'tantial 
injury to the plaintiff in its use of the water, and shall not 
diminish or materially contribute to tlie diminution of the 
water of said streams, so that such diminution siiall prejudice 
or cause material injury to the plaintiff in its practical appli- 
cation of the water on its said premises; and a further proviso 
that said defendants may at all times take and use a sufficient 
quantity of the water for their domestic and culinary purposes, 
and for watering their cattle. The decrees will also enjoin the 
defendants to take the water from said streams and apply it 
to its various uses upon said lands without unnecessary waste, 
and in the most economical manner consistent with its bene- 
ficial use, and return the surplus to the stream whence it was 
taken in like economical manner, and without unnecessary 
waste. 

The defendant, E. Lightle, answered, denying that he liad 
ever diverted any water, oi' that he threatened "to do so, and 



Ckeighton v. Evans. 123 

tliere is no proof against him. The decree must therefore be 
in liis favor for costs. 

Dicrees ara to be drawn up in aeeorJance with tlie views 
herein expressed, with costs in favor of plaintiff against the 
other defendants, to be taxed by tlie clerk, and apportioned 
by one of tlie judges of this court, so that eacli defendant 
shall be liable for the amount apportioned to him and no more. 



Creighton v. Evans. 

(53 Oalifornia, 55.' Supreme Court, 1878.) 

' Nominal injury to riparian riglits. The right of a riparian owner to 
have the water of a stream run through his land is a vested right, and 
any interference with it imports at least nominal damages, even though 
there be no actual damage. 

Appeal from the District Court of the Tliirteenth Judicial 
District, County of Tulare. 

The case was tried by the court with a jury, and the verdict 
was for the defendant. Judgment was rendered accordingly. 
The plaintiff moved for anew trial, which was denied, and he 
appealed. The other facts are stated by the court. 

Atwbll & Beadley, for the appellant, cited the Civil Code, 
Sec. 1422; Angell on Watercourses, ])p. 97-109, 135, 450; 
Corning v. Troy, 40 N. Y. 191-204; High on Injunctions, 
Sees. 601-512; 1 Addison on Torts, pp. 8, 9, 10-72; Blanch- 
ard & Weeks' Leading Cases, pp. 719, 721,753; Ferreav. 
Knipe, 28 Cal. 340; Sedgwick on the Measure of Damages, 
pp. 45, note 2; 148; 153; Attwood v. Frioot, 17 Cal. 43; 
Frnbrey v. Owen, 6 Exch. 363. 

E. J. & E. D. Ed WARDS, for respondent. 
By the Couet. 

It is admitted by the pleadings that the water of Elk Bayou 
flowed in its natural channel through the plaintiff's land, and 
that thi defendant devoted a portion of the water to his own 

1 See VamieUe v. Haines, 7 Nev. 249, with note to same; Post Water. 



124 Ikrigation. 

land for purposes of irrigation, and other purposes. It is not 
averred tliat he is a riparian owner, and as such entitled to 
use any portion of tlie water. There is nothing in tlie record 
to indicate that tlie defendant was entitled to divert any por- 
tion of the water, and the court properly instructed the jury 
that the plaintiff was entitled to recover at least nominal 
damages, even though he had suiFered no actual damage. 
But, at the request of tlie defendant, the court also instructed 
the jury that if the defendant diverted a portion of the water 
for a useful purpose — sucli as, for example, for domestic use 
— and that enough water was left in the stream for the use of 
the plaintiff for watering his stock, and for domestic purposes, 
and if the plaintiff was not damaged by the diversion, the 
verdict should be for the defendants. This was not only con- 
tradictory to the first instruction, but is erroneous in matter 
of law. So far as appears from the, record before us, the de- 
fendants were not entitled to divert the water for any pur- 
pose, and the plaintiff was entitled to at least nominal dam- 
ages. 

Judgment and order reversed, and cause remanded for a 
new triah 



Gate v. Sanfoed et al. 

(54 California, 24. Supreme Court, 1879.) 

Prirate water ditch enjoyed in common. An irrigating ditch, con- 
structed, repaired and controlled by two or more persons, does not cease 
to be private property because the several persons interested in it have 
not accurately defined their rights thKrein, or in the waters flowing in it, 
nor because they have, by election, selected a parson to distribure the 
water among those who have contributed to the construction and main- 
tenance of the ditch, nor for both of those reasons c ombined 

Idem-No dedication presumed. Such a mode of construction' and man- 
agement of a ditch and its waters, although the irrigators may be 
numerous, does not operate as a dedication thereof to the public 

Idem-Statute concerning water conimissioiiers, construed. Such a 
ditch would come within the exception contained in Sec. 6, Stats 1877-8 
by which the water commissioners of Los Nietos Irrigation District ai-e 
forbidden to take possession and control of private ditches. 



Gate v. Sanford, 125 

Appeal from a judgment for defendant in the Seventeeiitli 
District Court, County of Los Angeles. McNealt, J. 

Tlie court found, with reference to the ditch referred to in 
the opinion, and other ditches from the same water source, 
" that since tlie construction of the said ditches respectively, 
as persons have bought and cultivated lands capable of irriga- 
tion therefrom, the same have, with the consent of all the 
parties, been constructed down to and upon such lands, and the 
same have been irrigated therefrom, the new parties contribut- 
ing in the same manner toward the repair and expenses thereof 
as the original constructors, and taking like part in their re- 
spective management and control, and in all respects exercis- 
ing the same rights," and " that the distribution of the wa- 
ters on the said ditches has been regulated by the informal 
election of a water-master for each respective ditchj by the ir- 
rigators therefrom." 

The other facts are stated in the opinion. 

BicKNELL & WmTE and Thom & Ross, for appellant, who 
was plaintiff below. 

Howard, Beousseau & Howard, and J. B. Hollo way, for 
respondents. 

Br THE CoUET. 

The plaintiff is, and for more than ten years last past has 
been, the_owner in fee and in possession of a tract of land 
forming a part of the Rancho Ranchito, situated in Los Nietos 
township, in the county of Los Angeles, and bounded on one 
side by the San Gabriel river. About the year 1868, he, to- 
gether with sixteen other owners of separate tracts of land 
upon that rancho, constructed the ditch in controversy, called 
the "Gate Ditch," by which they conducted water from tlie 
river San Gabriel upon their several tracts of land, for the pur- 
pose of irrigating the same; and he and they have continued 
to use the ditch for that purpose, from that time up to June, 
1878, when the defendants took the exclusive possession of the 
ditch and the waters therein flowing. 



126 Ireigation. 

The expenses of the construction and repair of the ditch 
have beea borne by the respective parties, in proportion to 
the quantity of land irrigated by them. Other persons, de- 
siring to irrigate their lands, have continued the ditch to and 
npon"their respective tracts of land, and they have contributed 
to the construction and repairs In the same manner, and have 
had tlie same management and control of the ditch as those 
who originally constructed it. The distribution of the waters 
has been regulated by a water-master, elected by those who 
irrigated from the ditch. 

The plaintiif seeks to enjoin the defendants from assuming 
the possession or control of the ditch, or the water flowing in 
it, or in any manner interfering with the same. 

The defendants justify their possession and control of the 
ditch and water, under the provisions of the act of March 20, 
1878, entitled " An act to provide for and regulate irfigation 
in tlie township of Los Nietos, in the co.unty. of Los Angeles 
(Stats. 1877-78, p. 374), under which they were appointed 
water commissioners and overseers of the Los Nietos Irri- 
gation District. The sixth section of tlie act provides that 
the commissioners " shall proceed to take possession of and 
control of all the watercourses, ditches, dams, aqueducts, 
flumes, reservoirs and irrigating structures and works in said 
district (except such as are owned by private parties, or by 
companies or corporations legally organized under the laws of 
tins State), and shall determine tiie' amount of water which 
-shall be given and used as an irrigating head, and cause the 
same to be measured and distributed to the irrigators; to use 
all means to cause the water of said district to be utilized to 
the best interest of the irrigators." Power is conferred upon 
the commissioners to acquire by conveyance, or by actions for 
condemnation, rights of way for ditches, dams, reservoirs, and 
canals; and the act contains many provisions in aid of tlie 
above mentioned powers. 

The court found as a conclusion of law, that the ditch was 
a "neighborhood and quasi public" ditch, and was not owned 
by private persons, within the meaning of the above men- 
tioned act. An irrigating ditch, constructed, repaired and 
controlled by two or more persons, does not cease to be pri- 
vate property and become public property because the several 



MUNROE V. IviE. 127 

persons interested in it have not accurately defined their 
respective rights therein or in the water ilowing in it, nor be- 
cause tiiey have, by election or otherwise, selected a person to 
distribate the water among those wlio have contributed to tlie 
construction and maintenance of the ditch, nor for both of 
those reasons combined. No principle of law has been cited 
by virtue of which tliat mode of construction and management 
of such a ditch and its waters would operate as a dedication of 
the ditch or its waters to the public. They have not been ex- 
pressly granted to the public; and if they have not been dedi- 
cated to public use, they remain private property. In our 
opinion the "case falls within the exception mentioned in the 
sixth section of the act — that the ditch is private property. 

But if tlie ditch is on]y a qtiasi public .ditch, it must, to 
some extent and in some measure, be a private ditch; for the 
qualification given necessarily implies that it is not entirely a 
public ditch, and that private parties own some right, title or 
interest therein; and if that be so^ they can not be deprived of 
such right, title or interest, by the summary process of taking 
possession of the ditcii, adopted in this case. 

The facts found by the court entitle the plaintiff to the 
relief prayed for in his complaint. 

Judgment reversed and cause remanded, with directions to 
the court below to order the injunction to issue as prayed for 
in the complaint. Remittitur forthwith. 



MuNEOE ET AL., Appellants, v. Ivie, Respondent. 

(2 Utah, 535. Supreme Court, 1879.) 

Appropriation of water. Irrigating companies can not control running 
water except by legal appropriation thereof, and any person, a stranger 
to such company, has a right to appropriate water not legally appro- 
priated by others. 

Territorial control of water, limited. In this country lands are open to all 
persons, as also the appropriation of running waters, and the Territorial 
Legislature has no power to enact laws that will permit an irrigating 
company to control or manage the water of any part of the Territory in 
disregard of the rights ofjndiyidual claimants. 



128 Ikrigation. 

Appeal from the First Judicial District Court. 

The facts appear in the opinion of the court. 

Sheeks & Rawlins, for appellants, who were plaintiffs be- 
, low. 

Priority of appropriation in this Territory and other western 
States and Territories, where artificial irrigation is required, 
gWes the indefensible right to the use of water: Basey v. Gal- 
lagher, 'IQ Wall. 681; Atchison \. Peterson, 20 Wall. 507; 
Butte Canal and Ditch Co. v. Vaughn, 11 Gal. 143; Barnes 
V. Sabron, 10 ISev. 'ill; Smith w:0'Hara, 43 Cal. 371; Hof- 
man v. Stone, 7 Gal. 49; McDonald v. Bear River, 13 Cal. 
220; Kelly v. Natoma Water Co., 6 Cal. 105; Eev. Stat. U. 
S., § 2339. 

This right applies to the full extent of the quantity of the 
flow of the water so appropriated, and for the periods of time 
in each year, month, week or day during which the appropria- 
tion is made; Smithy. Cliara., 43 Cal. 371; Basey v. Galla- 
gher, 20 Wall. 681; 11 Gal. 143; 10 Nev. 245. 

This right is subject to the condition that the appropriation 
must be for some useful purpose, and that ordinary economy 
must be employed in the exercise of the use: Weaver v. En- 
rekaLake Co., 15 Cal. 271; Basey v. Gallagher, supra; Davis 
V. Gale, 32 Gal. 26; 10 ISTev. 246. 

An application of the use to a new but useful purpose does 
not affect the right. In this respect a cliange or an extension 
of the application of the water is unimportant. To illustrate: 
If with a given quantity of water the party had irrigated and 
matured crops upon one acre of land, but by a change of condi- 
tions he was afterward, with the same water, able to mature 
crops upon two acres, and did so, this circumstance would not 
break the continuity of his right to use all the water. Tiie 
right extends to the quantity of the water, not to its applica- 
tion: Da/uis V. Gale, 32 Gal. 26. 

It clearly results from the above, that whatever labor plaint- 
iffs and their predecessors expended to obtain water, such 
water having been unappropriated, and they having been in 
possession of objects to which it could be usefully applied, 



MUNROE V. IVIE. 129 

tliey, and not the defendants, would be entitled to the benefits 
of this labor: 10 Nev. 244. 

No question of riparian rights is involved in this case, be- 
cause defendant showed no title: Basey v. Gallagher, 20 Wall. 
681. 

The court should adnainister the law according to the strict 
right, the evidence in respect to it not being conflicting. A 
conaparison of the value of conflicting ri,6;hts would be a 
novel mode of determining their legal superiority: Weaver 
V. Eureka Lake Co., 15 Oal. 274. 

P. T. Yan Zir,E, for respondent. 

No brief on file. 

BoEEMAN, J., delivered the opinion of the court. 

This is a suit for injunction to restrain respondent from ap- 
propriating water from Maple Grove creek. Upon the hearing 
of the case upon its merits in the court below, judgment was 
given for respondent, and thereupon appellant brought the 
case to this court. 

The judgment of the district court is objected to mainly 
upon two general grounds: 

First.— it is alleged that the finding of fact and decision 
of the court are contrary to the evidence. The statement 
shows that the evidence was conflicting. Where there is a 
substantial conflict, as appears here, the court will not disturb 
the finding. 

Second. — It is alleged that the conclusions of law and de- 
cree are not the legal results of the facts found. The facts, 
show, substantially, that in 1863 the respondent went upon 
the ground he now claims water for, and took steps to hold if, 
and in 1864 he appropriated water from Maple Grove creek, 
upon this land; that he was driven off by the Indians in 1865, 
and upon the close of the Indian war, in 1866, he returned to 
the land and began using the waters of said creek for irrigating 
the land, and has continued to do so each year until the pres- 
ent time. In 1864, when he first appropriated the water of 
the creek, there was a settlement of thirteen families at Scipio, 
TOL. vrii. — 9 



130 Ireigation. 

who were appropriating water from the same creek, to irri- 
ffiite not to exceed two iiundred acres of land. Since that 
time the people of Scipio had improved the channel of the 
ci-eek, and, by ditching, iiave bronght water from five springs 
w'.iieh did not fesd Miple Grove creek, so tiiat now they have 
water for 2,400 acres, and irrigate that miicli. Fi'om this 
time the number of families at Scipio has increased; new set- 
tlers were admitted and allowed to take the water. Wliilst 
new settlers were thus allowed to appropriate these waters, 
the defendant (respondent) was ajipropriating the water 
above them at his ranch. This yearly admission of new set- 
tlers into Scipio, and their appropriation of the waters, would 
, seem to make it clear that there was no scarcity of water. If 
new settlers were thus allowed, without objection, to appro- 
priate the water below respondent, we can see no reason why 
he could not have the same right. "Water is something that 
the appellants could not control in any other way than by 
afjpropriation. They could not gd and dig ditches and bring 
water down, and let it run to waste. It they failed to appro- 
priate it any strapger could appropriate it, and it was not 
necessary that such stranger should be a member of the irri- 
gating company, nor could such company injure or trample 
upon his rights. This is a free country, and the lands are 
open to all, and the appropriation of the water is open to all, 
and the legislature can not pass any law that will put it into the 
power of an irrigating company to control and manage the 
waters of any part of the Territory, regardless of the rights 
of parties. Nor will the court allow irrigating companies to 
become engines of oppression. Taking all of the evidence in 
tills case together, we think that the court below was justified 
in its findings and conclusions of law. 

The judgment is affirmed with costs. 

HuNTEE, 0. J., and Emerson, J., concurred. 



CoFFMAN V. Bobbins. 131 

CoFFMAif, Respondent, v. Robbtns, Appellant. 

(8 Oregon, 278. Supreme Court, 1880.) 

Eights of lower proprietor. Each riparian proprietor has the right to 
have the water of a stream running in a defined channel continue so to 
flow, except so far as the same may be appropriated for domestic use, 
stock, and reasonable irris:ation. 

'Parol division ofWiiter enforced. Where ripirian proprietors have di- 
vided the water of a stream by mutual consent, and each party has con- 
structed ditches and enj yed the water for years under such parol agree- 
ment, it is an agreement which will be enforced in equity and each party 
limited to his agreed share. 

^ Pnrcliaser takes notice of ditches. A party purcha-iing land with water 
'thereon distributed by ditches, will be presumed to have purchased with 
knowledge of how the water was divided. 

" Costs divided, neither party being without blame. 

Appeal from Umatilla County. ' 

This is a suit hy the respondent to enjoin the appellant from 
diverting any part of a certain stream of water from respond- 
ent's premises, and from preventing any more than one third 
of such flowing upon the respondent's premises at the south- 
east corner of his farm, and for damages. 

The respondent alleges that two springs rise on the lands 
of appellant, the waters of which unite and forma stream 
which runs through the lands of Daniel Simmons^' to a point 
distant about one hundred yards south of the north boundary 
of Simmons' farm, at which point the waters divide and form 
two separate channels, both of wliich channels run onto the 
premises of the appellant, Eobbins, in tlie said northwest 
quarter of section six, near the southwest corner of said land, 
and from there, wlien unmolested, passed onto the northeast 
quarter of section one, of respondent's land, in several different 
channels, one of which channels passed onto said land at a 
distance of about two rods from the southeast corner of his 
fcirm, which channel carried about one quarter of the water 
running from said springs. The second and principal chan- 
nel flowing from said springs passed onto respondent's land 
at a distance of about twenty-six rods from his southeast cor- 

' 430 Mining Co. v. Bullion Co., 3 Saw. 634 ; Post Patent. 
^Lau-rence's App., 7 M. R. 542 ; Highland Co. v. Mumford, 2. M. R. 3. 
' Irwin V. Davidson, 7. M. R. 237. 



132 Ierigation. 

ner, which channel carried about one half of the water flow- 
in;;; from said springs, and two smaller channels formed by 
the waters of said springs passed onto his land near the center 
of his east line, which said two last mentioned channels car- 
ried about one quarter of the water flowing from said springs; 
and that all the water flowing from said springs passed onto 
respondent's land in said four channels, and from there flowed 
in a northerly direction in several different channels, until 
they reached the west half of his home farm, where they 
again united and formed one main channel, which passed off 
from his said home farm on the west side thereof, from whence 
it ran onto some railroad land which is in the possession of re- 
spondent, and from thence to some land owned by one James 
M. Leezor. The said waters, before any ditches were dug, 
caused about sixty acres of respondent's land and about forty 
acres of appellant's land to be swampy, and to be grown over, 
with tules. 

That during the year 1864, two ditches were cut, distant 
about five feet apart in a north and south direction, on the 
line dividing the home farm of respondent from the north- 
west quarter section six, of appellant, which said last de- 
scribed land was tlien the property of one John McCoy, and 
that a wall of sod and dirt was built between said ditches, 
said wall being about five feet thick at the bottom, about four 
and a half feet high, and running up tapering to about the 
width of two feet at the top, and that said ditches were cut and 
wall erected for the purpose of forming a fence between the 
premises of respondent and the said John McCoy. That said 
wall prevented the water from said springs from flowing 
onto respondent 's land in anyof its natural channels, but tha" 
by mutual consent and agreement between himself and John 
McCoy, and other persons who afterward owned said land ad- 
joining on the east, he had the privilege of bringing all the 
water that he desired to make use of, onto his premises 
through a ditch which runs onto his land at his southeast 
corner, and which ditch extended in an east direction from 
said southeast corner between the lands of appellant and Dan- 
iel Simmons. 

The appellant acquired title to the land adjoinino- re- 
spondent on the east in 1873, and that at intervals^since 



COFFMAN V. EOBBIJTS. 133 

said time he has diverted about one half of the water flowina 
from said springs away from the lands of the respondent, 
and that said waters so diverted were never allowed to flow 
onto respondent's home farm, but passed around the same on 
other lands adjoining thereto, and that a large portion of said 
waters were flowed by appellant into a lane through which a 
country road had been located, and that respondent nevercon- 
sented to said diversion, but frequently objected thereto. 

That in February, 1876, appellant diverted all the water 
flowing from said springs away from respondent's southeast 
corner, by means of ditches which he dug for that purpose, 
and by deepening ditches which had already been dug, and 
caused it to flow into the most northerly of the channels formed 
by the spring branch, from whence it flowed onto respondent's 
land through an aperture in the wall, between the lands of re- 
spondent and appellant, which had been caused by a flood 
of the Umatilla river an the year 1876, and which aperture 
had never been filled with dirt, but across which a fence built 
of Mis and poles had been constructed. That respondent has 
thereby been deprived of the use of said water for the pur- 
poses of irrigation and watering stock, and has been greatly 
damaged by means of the increased flow of water upon his 
premises in said northerly channel, etc. 

Appellant in his answer, in substance, claims that the waters 
of the spring branch, prior to thediggingof ditches, all re- 
united on his land and flowed onto respondent's land, through 
the most northerly of the channels described in the complaint^ 
and that the water which flowed northerly on respondent's 
southeast corner came from a slough which has its source in 
Daniel Simmon's farm, and which does not naturally unite 
with the waters of the spring branch until after it passes onto 
respondent's land. That Daniel Simmons and respondent, 
acting together, have constructed ditches on Simmons' land, 
which have changed the natural flow of the waters of the 
spring branch, and that appellant has thereby been injured, 
i Tliat Simmons has built a dam across the spring branch and 
backed up the water into appellant's cellar. That respond- 
ent, about two years ago, constructed an embankment across 
the north chaimel described in the complaint, by means of 
which the waters of the spring branch have been backed up 



134 Irbigation. 

on appellant's land and his meadow orerflovvedj to his dam- 
age, etc. 

J. 11. TuENKE, and Dolph, Beonaxjgii, Dolph & Simon, for 
appellant. 

LuoiEN EvBKTS, for respondent. 

By the Court, Boise, J. 

There are in this case no legal propositions which present 
any difficulty. If the stream of water in controversy was 
running in a well defined channel through the lands of the 
respective parties, tliey would each have a right to have it 
continue to flow in its natural course without diminution, ex- 
cept so far as the same might be legally nsed by each riparian 
proprietor, while passing through his premises, for domestic 
use, stock and reasonable irrigation. But from the evidence, 
it appears that this stream, before its flow was disturbed by 
ditches, spread out on the lands of both parties into a swamp, 
with no fixed and definite cliannels, especially wlien the water 
was flush. It entered the lands of the appellant by two chan- 
nels, and the evidence is conflicting and uncertain which car- 
ried the most water at the time the first drtch was made, which 
is marked on the map in the brief as ditch S. We think, how- 
ever, that the evidence tends to show that prior to the making 
of this ditch, which was about the year 1861, some of the 
water flowed about the southeast corner of Coffman's land, 
and stood in stagnant sloughs during tlie dry season. This 
appears from the direct testimony of some of tiie earl v set- 
tlers, and from the testimony of the surveyor, F. E. Haber- 
sham, who sliows from the elevations of the ground tliat tlie 
water could flow about said corner, and he traces old channels 
oir swales leading around that point; and the undisputed fact 
that this stream spread out and made a swamp which produced 
tules or rushes near this locality, shows that the water must 
have gone there and remained during the season.. The testi- 
mony, however, tends to show that before ditch Swas made the 
surplus water flowed on in difierent channels across the lands of 
appellant, and most of it passed onto the land of respondent 
at or about the point marked " levee" on the map. 



COFFMAN V. ROBBINS. 135 

But tlie evidence is very uncertain as to which channel 
tlien carried the most water. Tliis ditch S was cut across the 
west channel and dammed it up, so tliat from that time on 
for many years the water ceased to flow down the west chan- 
nel, and consequently had a tendency to obliterate all the 
channels which formerly carried tiie water about respondent's 
southeast corner. It appears that the respondent, soon after 
ditch S was du^, extended it to his southeast corner, and the 
water ran there for years. It was afterward agreed between 
the respondent and Martin Kobbins, who owned the land now 
owned by appellant, that respondent might divert a piirt of 
the water through ditch S to his southeast corner, and Mar- 
tin Robbins might convey a part of the water to his barn, 
which was done by ditch E, he (Robbins) joining said 
ditch with Simmons' at his line. Tiiis continued for some 
live years, wlien the parties quarreled about the water, each 
chiiming a right to use it all; Ooffinan claiming a right to 
take it all to his southeast corner, and Robbins claiming tlie 
right to have it all flow through his land wherever he chose. 
It is claimed that if Coffman had been taking a part of tlie 
water to his southeast corner, it was by a license which was 
subject to be revoked by Robbins at any time. It is also 
claimed that if he had been taking the water by an agree- 
ment to divide the water, which had been acted on by both 
parties for a number of years, sucli agreement is by parol 
and not binding, being void by the Statute of Frauds. And, 
also, if it was binding so far as to be upheld ,by a court of 
equity, both parties having repudiated it when they quarreled, 
it became void by their acts. 

We think that if the parties divided this water by mutual 
consent, and then, on pursuance of such agreement, Coflman 
dug ditches to receive one half of it and dispose of it at his 
southeast corner, and Robbins did the like on his land, and 
each took and enjoyed the water for years under this agree- 
ment, such a contract should be upheld in equity, for the 
agreement was a legitimate and proper one, and as the con- 
sideration (which was the digging the ditches and taking care 
of the water) was paid and the possession given, the agree- 
ment could be enforced in equity; and if tliese equitable 
rights once attached they would not be destroyed by a mere 



136 Ieeigation'. 

quarrel between the parties, for neither gained or lost a right 
by this disagreement. Such disagreement is only evidence 
tending to show that the agreement never existed, or had not 
been performed. And we think the evidence shows that the 
agreement was made and that the rights under it still exist, 
unless Thomas Robbins bought without notice. The evidence 
sliows that when he purchased the land this water was run- 
ning as divided in the ditches, and Cotfman was in possession 
taking his half to his southeast corner, and Rjbbins must be 
i)resumed to liave purchased knowing this fact. We think, 
tiierefore, thiit these parties have each a right to one half of 
this water, as decreed by the circuit court. 

We also think that the evidence shows that both parties 
have been at fault in seeking to evade the agreement by which 
the water was divided, for it appears that the respondent 
claimed that he had a right to take all the water to his south- 
east corner and deprive Robbins of all the water, and that 
both parties have been injured by turning the water from the 
ditches and letting it flow at will. It seems to have been an 
unfortunate quarrel between neighbors, by which both have 
suffered. And we think that while the court is called on 
to settle the rights of the parties to the water, as neitlier 
party is without fault, and both have been injured, neither 
should recover damages, and the decree will be modified in 
this respect, and appellant will be entitled to costs in this 
court, and respondent in the circuit court. 

1. Use of water for twenty-one years for irrigating purposes gives title 
by prescription at common law: Wheatley v. Chnsman, 24 Pa. St. 298- 
Post Nuisance. 

2. The right to divert and appropriate water for irrigation recognized 
and allowed: Basey v. Gallagher, 1 M. R. 683: Barnes v. Sahron 4 M 
R. 673. 

3. The right to the water as affected by issue of United States Patent: 
Vansickle v. Haines, 7 Nev. 249; Post Water. 

4. Irrigating land, considered as evidence or notice of claim and posses- 
sion: Courtney v. Turner, 12 Nev. 34-5. 

5 Irrigating ditch protected by injunction from injury by miners: Rup- 
ley V. Welch, 4 M. R. 243. And see Derry v. Boss, 1 M. R. 1. 

6. The limit of the right of an irrigating appropriator is the amount 
which he can use; not the amount which he turns out of its channel and 
wastes: Dick v. Caldwell, 14 Nev. 167. 

7. The measure of capacity of a ditch: Barnes v. Sabron, i M. R. 673. 



Notes. 137 

8. Pollution of irrigation ditches by mills: Crane v. Winsof, 2 Utah, 
248; Post Nuisance. By mines: Wheatley v. Chrisman, 24 Pa. St. 298; 
Post Nuisance. 

9. Claim of irrigator to allow his waste water to overflow upon lands of 
others below: BhtisdeJl v. Stephens, 7 M. R. 599. 

10. Fraudulent allegation of ownership of water: Bania v. Savage, 7 
M. R. 113. 

11. Ditch rights as appurtenances to land: Id.; Smith v. Logan, 1 W. 
C. R. 391. 

12. Contest between ranch and municipality as to right to water for irri- 
gation: Feliz V. Los Angeles, 58 Cal. 73. 

13. Prior appropriator m.iy not drain an entire stream, even though he 
may need all the water: Learned v. Tangeman, 3 West C. R. 153. 

14. The property in ditch rights considered : Tripp v. Overocker, 7 Colo. 
72. 

15. Upon the question of the rights of riparian proprietors as affected 
by the necessarily hostile doctrine of appropriation, see Farley v. Spring 
Val. Co. 58 Cal. 142; Lux v. Haggin, 4 W. C. R. 256; Vansickle v. 
Haines, 7 Nev. 249; Post Water; Basey v. Gallagher, 1 M. R. 683; 
Atchison v. Peferson, 1 M. R. 583. It is impossible to sustain the doc- 
trine of riparian rights as expressed in Vinon Co. v. Ferris, and Union 
Co. V. Dangberg, 8 M. R. 90, 113, with the cases which maintain the right 
of appropriation: R. S. M. 

16. Mandamus allowed to compel Ditch Company to supply water: 
.Golden Co. v. Bright, 5 West C. R. 805. 



138 Jurisdiction. 



Teafton v. Nougues. 

(4 Sawyer, 178. Circuit Court, District of California, 1877.) 

Transfer of causes. Under the clauae "arising' under the constitution and 
laws of the United States," found in section two, 18 Stat. 470, of the 
act to determine the jurisdiction of the United States courts, passed 
March 3, 1875, only such suits can be transferred from the State to the 
national courts as involve a disputed construction of the constitution 
ai)d laws of the United States. 

' Federal jurisdiction in mining suits. In an action to recover for trespasa 
upon a gravel gold raining claim, and seeking an injunction restraining 
the working of the claim by defendant, a petition was filed by the de- 
fendant for the removal of the cause to the Unitod States court, in whirh 
it was alleged that the defendant located an I hold his claim under the 
several acts of Congress relating to the subject, but it did not appear 
that any question was involved other than is usual in the trial of rights 
to mining claims or which might mt bs determined by the local Ihws, 
rules and customs, without reference to the acts of Congress: llidil, 
that the petition did not show such a state of facts as to warrant the 

" transfer, and the case was, on motion, remanded lo the State court. 

Petition for transfer— What it should state. A petition for iri\nsrpr 
should state the exact facts, and distinitly point out what the qiu-slion 
is, and how and where it will arise, which gives jurisdiction to the court, 
so that the court can determine for itself, i'rom the facts, whether the 
suit does really and substantially involve a controversy within its juris- 
diction. 

Petition alle^in? legal conclusion, insulllcient. An allegation in a peti- 
tion for removal that " the rights of the plaintiff as against defendant 
must be determined under the laws of Congress of the United States," 
is a statement of a legal conclusion rather than a fact; it states merely 
the opinion of the petitioner and will not justify a transfer. 

Motion to remand case to tlie State court, whence it name, 
on the ground that it does not appear from the facts allei>ed, 
either in tlie pleadings or tiie petition asking a transfer, that 
the ease is one arising under the constitution or laws of tlie 
United States, within the meaning of tlie act of Concn-ess of 
March 3, 1875. " 

0. A. TuTTLB, for motion. 

M. MuLANY, contra. 

Sawyer, Circuit Judge. 

I liave had no little difficulty in satisfactorily construing 

•Transfer of suit supporting adverse claim: Chnmhers v. Harrhgton, HI 
U. S. 350; Frank Co. y. Larimer Co., 1 M. R. UO. 



Teafton v. Nougues. 139 

this act. In the broad sense claimed by some, nearly all cases 
relating to title to lands would be swept into the national 
courts; for in the new States, in every action of ejectment in- 
volving a question as to the real title, one party or the other 
goes back to a patent or other grant under the laws of the 
United States. Since the passage of the act of Congress of 
1866, and subsequent acts upon the same subject, expressly 
declaring the public lands to be free and open to exploration 
and occupation for mining purposes, subject to the local laws, 
regulations and customs of miners, also authorizing a sale 
and patent to parties establishing a right under such local 
laws, regulations and customs, it seems to be claimed, oh this 
broad principle, that all suits relating to disputes about min- 
ing claims may be transferred to the national courts. But, 
clearly, the great majority of such cases only involve a litiga- 
tion of precisely the same questions as were litigated in those 
classes of cases for the many years since the acquisition of 
California prior to the passage of those acts of Congress; and 
they turn upon no disputed construction of the constitution 
or statutes of the United States. In fact, where a patent is 
authorized to be issued to the possessor under these acts in a 
contested case, the statute refers the parties to the ordinary tri- 
bunals of the country to determine, under the local laws and 
customs, irrespective of the acts of Congress, which party 
is entitled to the mining claim, and the patent issues to the 
party so determined to have the right: The 420 Mining 
Company v. The Bullion Mining Company, 3 Sawyer, 63i. 
Thus the rights of the parties are determined by the laws, 
regulations and customs of the locality outside the acts of 
Congress, without any discussion or controversy as to the con- 
struction of those acts. Since some of this class of cases 
transferred to this" court were retained, but with no little hesi- 
tation, the Supreme Court of the United States has decided 
several cases which afford a rule for the future, and which, it 
seems to me, exclude jurisdiction in many cases which the bar 
appears to have supposed could be transferred. The case of 
McStay v. Friedman, 92 U. S. K. t23, was a case in which 
oneof the parties relied: 1. On the Statute of Limitations; 2. 
On title acquired through the city of San Francisco, under 
the well known Van 1:^ ess Ordinance, and the act of the leg- 



140 JuEISDICTIOIf. 

islature confirming it. On a writ of error to the State court, 
it was sought to sustain jurisdiction of the United States 
Supreme Court, on the ground that the title derived through 
tliecity depended upon the act of Congress of 1866 (14 St. 
4), granting the land to the citj, in trust for those who held 
under the ordinance of the city, State statutes, etc. 
, The court says: "At the trial no question was raise'd as 
to the validity or operative effect of the act of Congress. 
* * * The city title was not drawn in question. The 
real controversy was as to the transfer of that title to the 
plaintiffs in error, and this did not depend upon the constitu- 
tion or any treaty, statute of, or commission held, or author- 
ity exercised under the United States." Romie v. Casanova, 
91 U. S. R. 380, is a similar case. At the present term of 
the Supreme Court, in a case winch was actually transferred 
from tlie State court to this court, under section 2 of the act 
of 1875, the same ruling was made. One party claimed cer- 
tain lots in San Francisco, by virtue of possession, in pursu- 
ance of the provisions of the Yan Ness Ordinance and the 
statutes of the State, and of the United States, confirming 
said title; while the city claimed the same as being part of 
the public squares reserved and set apart for public purposes 
in pursuance of the same ordinances and statutes. After the 
transfer a demurrer was interposed to the jurisdiction of this 
court, on the ground that it presented no question arising 
under the act of Congress, the rights of the parties depending 
upon the construction of the ordinances of the city and the 
State statutes alone. On the other hand, it was earnestly 
urged that it was necessary to construe the act of Congress 
in order to find out who the beneficial grantee intended by 
the act of Congress was. The court, however, held that the act 
of Congress referred the question as to who was entitled to the 
land to the city ordinances and the statutes of the State upon 
the subject, and that their rights must be determined by a 
construction of those ordinances and statutes. The Supreme 
Court atfirmed this ruling at the present term, thus holding 
that the same principle adopted in relation to the section pro- 
viding for writs of error to the State courts, is, also, applica- 
ble to cases of transfer from the State to the national courts, 
under section 2 of the act of 1875 ; that is to say, that unless 



Teafton v. Nougues. 141 

there is some contest as to the construction of the act of Con- 
gress, there is no jurisdictional question in the case: Hoad- 
leyrv. San Francisco, 94 U. S. R. 4. 

So with reference to mininsr claims. The act of Congress 
grants certain rights to tliose who discover, take up and work 
mining claims. But it refers the parties to the local laws of 
the States and Territories, and to the rules, regulations and 
customs of miners of the district where the mines are situ- 
ated, for the measure of their rights. If a dispute arises, as 
in the cases referred to, the act of Congress refers the parties 
to the ordinary tribunals to determine it by the local laws and 
customs, and not by the act of Congress. Upon the trial of 
the right to a mining claim, precisely the same questions are 
tried, and they are determined by the same laws and customs 
that were invoked as the measure of the rights of the parties 
before the act of Congress had been passed. Clearly, the 
great mass of these cases can not involve the discussion or any 
dispute as to the construction of any act of Congress; and 
when they do not, under the decisions cited, this court is 
without jurisdiction, so far as this provision of the act is con- 
cerned. Where the controversy is upon matters otiier than 
the construction of the constitution or an act of Congress, the 
"correct decision" of such controversy can not possibly "depend 
upon the right construction of either." No controversy can 
possibly arise upon the construction of an act of Congress, 
.where all parties agree as to its construction. There may be 
a contest as to other matters, butaiot as to the' construction 
of the constitution or laws in such cases. 

This action was brought in the State court in Placer county, 
to recover for, trespass upon a gravel gold mining claim, and 
seeking an injunction restraining the working of the claim 
by defendant. There is no fact alleged, either in the com- 
plaint or the petition for transfer, indicating that there is any 
question involved other than those that usually arise in a 
trial of a right to a miningclaim. And it afiBrmatively appears 
from the issues stated in the petition that such are in fact 
the questions to be tried. It is alleged generally in the peti- 
tion, it is true, that defendant located and held his claim 
under the several acts of Congress relating to the subject. 
But this is no more than can be said, in a general sense. 



142 Jurisdiction. 

of all mininw claims since the passage of the several acts re- 
ferred to. But, as we have seen, that does not necessarily, nor 
even ordinarily, in this class of cases, involve any question 
of disputed constrnction of the act, or any right or question 
which is not to be determined by the local laws, rules and 
customs, without reference to the acts of Congress, precisely 
as they were before there was any such act in existence. 

The only other allegation is, that the " right to said mining 
ground by plaintift depends upon the laws of Congress, and 
the right or title of defendant to said mining ground afore- 
said, must also be determined by tiie acts of Congress under 
which defendant and petitioner claim title; and that the 
. rigiits of the plaintiff as against defendant must be deter- 
mined under the laws of Congress of the United States." 
Tliis is in substance two or three times repeated; but it is only 
tlie statement of a legal conclusion ratlier than a fact; and a 
conclusion manifestly founded upon the general idea tliat all 
mining claims are so held; that an action relating thereto in- 
volving the rights of the parties to the mine necessarily arises 
under the acts of Congress within the meaning of the act giv- 
ing jurisdiction to the national courts — an erroneous conclu- 
sion, if I am right, in the views before expressed. 'J'hese al- 
legations express merely the opinion of the petitioner that a 
jurisdictional question will arise. In my judgment, sucli 
averments are insufficient to justify a transfer, or retaining 
the case when brought here. The precise fwcts should be 
stated out of which it is supposed the jurisdictional question 
will arise; and how it will arise should be pointed out, so 
that the court can determine for itself whether the case is a 
proper one for consideration in the national courts. Other- 
wise the administration of justice will be arreatly obstructed, 
and intolerable inconveniences be tlie result. Under the fifth 
section of the act, it is made the imperative duty of the court, 
at any stage of the proceedings, when it appears that " such 
suit does not really and substantially involve a dispute or 
controversy properly within its jurisdiction," to stop the pro- 
ceeding and remand the case. Where a suit presents no dis- 
puted construction of an act of Congress; where there is no 
contest at all as to what the act means, or what rights it o-ives* 
where the only questions are as to what are the local mining 



Trafton v. ICougues. 143 

laws, niles and customs, and as to whether the parties have 
in fact performed the acts required by such local laws, rules 
and customs, how can it be said, in any just sense, that such 
a suit "really and substantially involves a dispute or contro- 
versy" arising under an act of Congress? The location of 
the mine involved in the case is more than one hundred and 
fifty miles from San Francisco, where the court is held, and 
many other cases may arise in this State, Nevada, and Oregon, 
in regard to claims lying from three to five hundred miles dis- 
tant from the place where the national courts are held, and be- 
tween which places the means of communication are by no means 
easy or cheap. Generally, in this class of cases, the testimony 
rests mainly in parol, and there is a multitude of witnesses. 
The expense of prosecuting or defending such suits at a great 
distance from the mines would be enormous. If the court 
should accept a petition containing a bare statement of the 
opinion of the petitioner, that the rights of the parties are de- 
rived under an act of Congress, as in this case, the result in 
most cases would be that the court would not be able to de- 
termine whether the case " really and substantially involves 
a dispute or controversy properly within the jurisdiction of 
the court," until the cluse of the testimony, when it would be 
necessary to remand the case at last. Such results would 
largely obstruct the due administration of justice, and work 
an intolerable inconvenience to honest suitors. Besides, it 
would encourage transfers of cases over which the court has 
no jurisdiction, by unscrupulous parties, for the very purpose 
of deterring the adverse party from pursuing his rights by 
reason of the delaj's, inconvenience and enormous expense of 
prosecuting an action of this class at a great distance from 
home. These difficulties would be especially onerous in 
cases relating to mining rights, where time is often as im- 
portant as the right in the several large States of the Pacific 
coast and interior of the continent, and wliero a court is held 
at but one point. A single State, in some instances, it must 
not be forgotten, contains more territory than all the Middle 
and New England States together. 

In view of these, in my judgment, weighty considerations, 
therefore, I think it of the highest importance to the rights 
of honest litigants, and to the due and speedy administration 



144 JuEiSDiCTiojr. 

of justice, that a petition for transfer should state the exact 
facts, and distinctly point out what the question is, and how 
and where it will arise, which gives jurisdiction to the court, 
so that the court can determine for itself, from tJie facts, 
whether the suit does really and substantially involve a dis- 
pute or controversy within its jurisdiction. 

Whenever, therefore, the record fails to distinctly show such 
facts in a case transferred to this court, it will be returned to 
the State court, and under the authority given by section 5, at 
the cost of the party transferrirg it. If I am wrong in my 
construction of the act, and the recent decisions of the Su- 
preme Court, the statute, section 5, happily affords a speedy 
remedy by writ of error, upon which this decision and the 
order remanding the case may be reviewed without waiting 
for a trial, and the question may as well be set at rest in this 
case as in any other. It is of the utmost importance that 
a final decision of the question be liad as soon as possible. If 
counsel so desire, I will order the clerk to delay returning the 
case till they have an opportunity to sue out and perfect a 
writ of error. 

Let an order be entered returning the case to the State 
court whence it came, with costs against the party at whose 
instance it was brouo-ht here. 



The Eureka Consolidated Mining Co. v. The 
Richmond Mining Co. 

(5 Sawyer, 121. U. S. Circuit Court, District of Nevada, 1878.) 

" Ifo jurisdiction in lower court to allow injunction pending appeal 
from order of dissolution. The plaintiff having obtained a judgment 
at law for the possession of a mine and at the same time in an equity 
Buit obtained a perpetual injunction, the defendant appealed from this 
decree and also from an order in the same case dismissing the defend- 
ant's cross-bill and dissolving the temporary injunction issued thereon, 
and gave bonds necessary to operate as a supersedeas. After the 
appeal the pla,intiff continued to work the mine, and the defendant, upon 
affidavit stating the appeal, supersedeas and continued working by 
plaintiff, applied for an order restraining further work pending the ap- 
peal: Held, that as the plaintiff was not attempting to do anything by 
' Eldridge v. Wright, 7 M. R. 418. 



Eureka Con, M. Co. v. Eichmond M. Co. 145 

virtue of the decree, there was nothing to supersede; that as the de- 
cree was absolute and final, the case was ended in the court below and 
its jurisdiction exhausted. 
Statute construed. Section 1182 of the Statutes of Nevada relates to pro- 
ceedings in a case pending, over which the court still has control. This 
case having gone beyond the reach of the court, the statute has no ap- 
plication. 

Before Sawtee, Circuit Judge, and Hillyee, District 
Judge. 

The Eureka Consolidated Mining Company brought an ac- 
tion against the Richmond Mining Company to recover pos- 
session of a portion of a silver mine. It also filed a bill on 
the equity side of the court against the same defendant, alleg- 
ing ownership of the portions of the mine sought to be re- 
covered in the action at law; that defendant was in possession, 
working the mine and carrying away the ore, and praying an 
injunction pending the litigation, and that upon the hearing 
the injunction be made perpetual. A temporary injunction 
was issued. The defendant in these actions thereupon filed 
a cross-bill in the equity suit, alleging that the comj)lainaiit 
in the original bill was also in possession of, and working, a 
portion of the mine in controversy, and praying an injunction, 
which was also temporarily granted. The parties then waived 
a jury in the law case, and the law case was tried, and the 
bill and cross-bill in equity were heard at the same time, dur- 
ing the March term, 1877, upon the same evidence, before 
Mr. Justice Field, Sawybe, Circuit Judge, and Hillyee, Dis- 
trict Judge, the cases having been prepared and argued on 
both sides with consummate elaboration and ability. The 
court found for the plaintiff in the law case, and gave judg- 
ment for the possession of the mine; and in the equity case 
a decree was entered for the complainant in the original bill, 
making the injunction perpetual, and a decree dismissing' the 
cross-bill and dissolving the temporary injunction issued 
thereon, and for costs. The decree of dismissal was absolute, 
without any limitation or qualification. The case is reported 
in 4 Saw. 302, where the facts are fully stated. Both parties 
had drifts running in various directions through the lode on 
different levels. The Kichmond company took an appeal in 
the equity case, sued out a writ of error in the action at law, 

VOL. VIII — 10 



146 Jurisdiction;. 

and gave the bonds neoessai-y to operate ns a snptrscdcas. 
After tlie appeal tlie Eureka coni]iany continued to work tlse 
mine, and extended its drift on one of its lower levels so as to 
cut the body of ore in wliat is known as the Potts Cliaui- 
ber, as indicated in the report of the case in 4 Saw. 30J-, be- 
ing the body of ore which the Richmond company was work- 
inar at the time of the institution of the actions; but did not 
enter or take possession of, or interfere with any of the Rich- 
mond company's shafts^ winzes, or drifts. Thereupon, at 
the March term, 1878, of the circuit court, the Richmond 
company, upon affidavits stating the appeal, supersedeas, and 
the acts of the Eureka company in working the mine in the 
disputed territory, applied for an order restraining the fur- 
ther working of the mine pending the appeal. It was claimed 
on the iirgument, that the working of the mine, although not 
a technical, was a substantial violation of the su])ersedeas; 
and tiiat the court, for the purpose of preserving the subject- 
matter in dispute pending the litigation, should issue the 
order sought. Separate notices of the motion were given in the 
suit in equity and action at law. 

J. J. Williams and Crittenden Thornton, for the motion. 

S. Heydenfeldt, Joun Garber and II. I. Tiioknton, con- 
tra. 

By the Court, Sawyer, Circuit Judge. 

We will consider the equity case first. In this suit, upon the 
final hearing, the preliminary injunction was dissolved, and the 
cross-bill of the Richmond company dismissed absolutely with- 
out limitation or qualification, the decree enrolled, and tlie term 
adjourned. An appeal to the Supreme Court was taken in 
the proper time and form to operate as a supersedeas; but there 
was nothing to supersede except the decree for costs. The 
court granted no affirmative relief on the cross-bill. It simply 
denied the relief asked by the Richmond company, and dis- 
missed the bill out of court. The Eureka company was not 
doing anything under or by virtue of the decree. It was not 
proceeding to collect the costs, either by execution or other- 
wise. The case was ended in this court, the jurisdiction ex- 
hausted, and the term adjourned. There was no longer anv 



Eureka Con. M. Co. v. Eichmond M. Co. 147 

case pending in the conrt in which any order cSould be made. 
Tiie court, therefore, has no further jurisdiction in the case 
except to execute the decree for costs when the supersedeas is 
removed, if it should be removed, or till the decree is reversed 
on appeal to the Supreme Court, and the cause thereby re- 
opened upon the receipt of the mandate from the appellate 
court. To issue a restraining order would be to exercise a new 
original jurisdiction without any suit pending in which it 
could be issued. The cases of Oallowdy v. The Mayor, etc., 
of Lo7idon, 3 De Glex, Smith and Jones, 60, and Coleman v. 
Hudson River Bridge Gotnfdny, 6 Blatchf. 56, are in point. 
The former case was a bill to restrain tlie corporation of London 
from taking certain property under statutory powers. The 
master of the rolls dismissed the bill, and the order of dis- 
missal was affiruied on appeal, the lords justices differing in 
opinion. An appeal having been ta;ken to the House of Lords, 
it being probable that the corporation would take the prop- 
, erty, and pull down the building pending the appeal, the ap- 
pellant applied to the lords justices for an injunction to re- 
strain the corporation from proceeding till the appeal could 
be heard. Although the lords justices expressed themselves 
as being as willing as they ought to be to grant the injunc- 
tion, it was denied on the ground that their jurisdiction was 
srone on the dismissal of the bill. Lord Justice TuRisrEE said: 
" I can not but think that by reason of the dismissal of the 
bill, the, power of the court is gone. I think that the plaint- 
iff, if he intended to appeal to the House of Lords, ought, at 
the hearing, to have asked the court so to frame its order as to 
keep alive its jurisdiction pending the appeal." 

In Coleman v. Hudson River Bridge Company, the 
judges of the circuit court not agreeing, certified a division 
of opinion to the Supreme Court. The justices of the 
Supreme Court were also equally divided in opinion on the 
questions certiiied. The consequence was a dismissal of the 
certificate of division by the Supreme Court. In the opinion 
dismissing the certificate, the court suggest that the bill must 
be dismissed, and that the complainant could then appeal from 
the decree dismissing the bill. The defendant filed the man- 
date and moved to dismiss the bill; whereupon the complain- 
ant's counsel asked the court to so modify the decree of dis- 



148 Jurisdiction. 

missal as to retain the provisional injunction until the decis- 
ion of the Supreme Court on appeal from the decree of dis- 
missal. It was arj^ned that the injunction did not necessarily 
fall with a dismissal of the bill; or, if it d'ldi, prima facie, that 
it was in the power of the court to continue the injunction till 
the decision of the appeal. Mr. Justice Nklson, in deliver- 
ing the opinion of the court, says: " The court can not agree 
with either of these positions. The legal result of the 
division of opinion of the judges is a dismissal of the bill, 
without any qualification. Indeed, the condition of the court 
renders any qualification or modification of the dismissal im- 
practicable. The case is out of court, so far as it respects any 
proceedings, except an appeal to review the decree. The 
judges are disabled, from a contrariety of opinion, to annex 
any condition, and it certainly requires no argument to 
show that in case of an unqualified dismissal of a bill, all inci- 
dents fall with it. "We agree that the chancellor may, in his 
discretion, direct a modified dismissal, and thereby annex to it 
such conditions as may Seem to him just and equitable. Hav- 
ing the possession and entire control of the cause, this quali- 
fied exercise of power is practicable. But such a case is veiy 
difiereut from this one, where the dismissal is the result of law, 
and absolute; and where from the condition of the court no 
modification can be annexed. It was insisted that an appeal, 
when taken within the time and in tJie mode prescribed by 
the acts of Congress of September 24, 1789 (1 U. S. Stat, at 
Large, 85, Sec. 23), and March 3, 1803 (2 Id. 244, Sec. 2), will 
operate under and by virtue of those acts to continue the in- 
junction. But it is quite clear that these provisions deal only 
with the writ of execution founded upon the decree rendered 
and which is awarded by it, and have no application to the 
provisional writ of injunction, or other incidental proceedings 
in the progress of the cause." 5 Blatohf 68. 

This case is clearly an authority directly upon the point 
that when a bill is dismissed without qualification, it is out of 
court; that all incidents go with it, and the jurisdiction is 
gone. The very object of the motion was to obtain a niodifi- 
cation of the dismissal so as to avoid this result. Mr. Justice 
Nelson also observes that the point was a subject of consid- 
eration in the Supreme Court, and that no doubt was enter- 



Eureka Con. M. Co. v. Eichmond M. Co. 149 

tained of it bj any of the judges. It may, therefore, be re- 
garded as the decision of the Supreme Court, and as settling 
the question. The conchision is so obvious that the counsel 
in tlie last case, in their motion, proceeded upon the theory 
that unless they could procure a modified decree to preserve 
the jurisdiction, the jurisdiction would be gone. The two 
cases cited are the only ones brought to our notice, or that we 
have been able to find, directl}' deciding the point. Occasions 
for continuing injunctions pending an appeal must have been 
frequent and pressing; and the fact that no instance can be 
found in practice of their continuance where the bill has been 
dismissed absolutely, is the best evidence that court and bar 
have regarded the jurisdiction as gone. 

Counsel for the Kichmond company relied upon two cases, 
Ooddard v. Ordway, 4 Otto, 672, and Hart v. The Mayor of 
Albany^ 3 Pai::e, 381, neither of which touches the point in 
this case. In the former case, there was a receiver; and at 
the time the supersedeas was perfected, the receiver had 
twenty-five tliousand dollars of the fund in his hands, which 
required an order of the court to enable him to pay it over to 
the defendant in pursuance of the decree, whieh order the 
court was asked to make. The Supreme Court say; " Such an 
order would be in aid of the execution of the decree, which 
has, been stayed, and consequently bej-ond the power of the 
court to make until the appeal is disposed of. While the court 
below ma^' make the necessary orders to preserve the fund, 
and direct its receiver to that extent, it can not place the 
money beyond the control of any decree that may be made 
here, for that would defeat its jurisdiction." There the fund 
was in court, in its custody and control. But in this case, 
there is nothing to stay, except the collection of the costs. 
Thecour has no custody of the subject-matter. There is no 
,fund in court, or under its control. In the case cited from 
Paige, the master out of court, upon an ex parte application, 
had granted a preliminary injunction restraining the defend- 
ant from destroying and removing his building. Upon the 
coming in of the answer, the defendant moved, on bill and 
answer, to dissolve the preliminary injunction, which motion 
was granted. An appeal was taken from the order dissolving 
the injunction. There was no dismissal of the bill, no final 



150 JUKISDICTIOIT. 

decreo in tlie case. The appeal was from the interlocutory 
order. The case still remained in court, and the chancellor 
.bad full authority to make any otlier order that the exigencies 
of the case demanded. In this condition of things, u))on ap- 
plication, and upon terms, he made a new order restraining 
for a brief time the destruction of the property in controversy. 
lie did not continue the former injunction, but, as he siiys in 
terms, exercised a new and original jurisdiction in mitking 
the new order; that is not this case. Here the bill is dis- 
, missed absolutely, and the case is wholly ont of court. There 
is no suit pending in which any order can be mado. It fol- 
lows that the motion in the suit in equity must be denied. • 

In the action at law, this court never had jurisdiction to 
issue an injunction. And it was for tiiis I'eason that the 
bill in equity was filed. The court never had the custody 
of the subject-matter. The supersedeas undoubtedly stays 
the issue of a writ of restitution and execution for costs. But 
none has been issued or asked for. The Eureka company are 
doing nothing whatever by authority, or under, or in pursu- 
ance of, the judgment, or of any process issued thereon. It 
is doing nothing more than it was doing before tliese actions 
were commenced, except that it has extended its drifts fiirtlier 
into the mine, so as to work the body of the ore which it was 
seeking by these same means to obtain, prior to the institution 
of any of these suits. It is simply doing wliat it was re- 
strained from doing by the injunction issued on the cross-bill 
while it was in force. It is proceeding under the same claim 
and authority now, as it was before, nothina: more, nothing 
less. The court has made no order in tliis case other tlian to 
enter judgment for the possession and costs in favor of the 
Eureka company, and it can make none. 

Undoubtedly, if the court had inadvertently, or otherwise, 
issued an execution after the perfection of the supersedeas, 
and the plaintiff had been thus wrongfully put in possession 
or was about to be so put in possession under tlie writ, it 
could, by virtue of its control over its process, have stayed the 
execution of the writ, or have restored the possession improp- 
erly given, had the writ been executed. But nothing of the 
kind has occurred. Nothing in the custody or control of the 
court in this action is in any manner affected by the acts of 



Eureka Con. M. Co. v. Eichmond M. Co. 151 

the Eureka company, and the court is without power to inter- 
fere. If thei-e is any power to issue tlie restraining order 
asked, it lies with the appellate court. "Whether that tribu- 
nal can make the order, must be determined by itself Under 
its rules, however, upon a proper sliowing, it can afford a 
speedy remedy by advancing the cause and bringing it to an 
early hearing. If deemed a proper case, this would perhap^^ 
he the better remedy. While on the one hand the working o 
the mine might consume the subject-matter of litigation, ami 
leave little for the Richmond companj' in case of ultimatf 
•success, on the other, to restrain the working of the mine ad- 
judged to belong to the Eureka company for the period of 
three years, the time suggested as likely to be required fortlie 
disposition of the case, would be scarcely less calamitous 
should the decision be affirmed. To those familiar with the 
subject, it requires no argument to show that it would be ex- 
tremely disastrous to allow an open mine, with all its vast ex- 
tent of shafts, drifts, winzes, etc., to fill with water, fall in and 
become destroyed, and its machinery, hoisting works, mill 
and mine itself, to be disused for so long a period. Section 
1182 of the statutes of JSTevada, also relied on by the Kich- 
inond company, relates to proceedings in a case pending, over 
which the court still has control. But this case is ended and 
gone beyond the reach of this court. The statutory provis- 
ion, therefore, has no application. 

It follows that the motions must be denied, and the order 
issued restraining the Eureka company from working pend- 
ing the motion, vacated and dissolved, and it is so ordered. 

1. Courts of New York have no jurisdiction of a suit between foreign 
corporations concerning lands in anotlier State: Cumberland C. d: 1. Co. v. 
Hoffman S. C. Co., 30~Barb. 159. 

2. Decree against persons upon whom only constructive service by pub. 
lication is had, will not affect their mining property beyond the jurisdiction 
of the court: Harris v. Pullman, 84 III. 20; 25 A. R. 416. 

'6. Justices of the peace have no jurisdiction to try a cause for alleged, in- 
jury arising from a diversion of water: Hill v. Newman, 4 M. R. 518. 
Nor for damages for injury to a mining claim: Van Etten v. Jilson, 6 Cal. 
19. 

4. A suit brought in a court of the State of Nevada by a citizen of Cali- 
fornia against a citizen of England may be removed mto the Circuit Court 
of the United States under the act of March 3, 1875: Eureka Cons. M. Co. 
V. Eichmond M. Co., 6 Sawyer, 471. 



152 JUEISDICTION-. 

5. Removal of suit supporting adverse claim frnm State court: Frank 
Co. V. Larimer Co., 1 M. R. 130; Chambers v. Harrington, 111 U. S. 850. 

6. Not sutficient to aver generally that the suit involves the construction 
of an act of Congress concerning mines: Holland v. Ryan, 17 Ted, 1. 

7. Jurisdiction of circuit court after removal of cause to grant leave to 
file record before day appointed by statute, and to granl; provisional relief: 
Mahoney M. Co. v. Dennett, 4 Saw. 289. 

8. Jurisdiction of suits between citizens of different States: Meadow 
Vnlle.y M. Co. v. Dodds, 7 Nev. 14)3. 

9. Jurisdiction of court of equity in cases of disputed possession between 
tenants in common of real estate: Noi'th Penua. Coal Co. v. Snoieden 
42 Pa. St. 4>i'^; Post Tenant in Comision, 

10. A mming corporation created by the legislature of Pennsylvania, buj; 
doing business in California, can not be sued in the U. S. courts as a citizen 
of California: Pemwjlvaniav. Quicksiloer Co., 10 Wall. 5">:5. 

11. A mining corporation organized in California, but w. rking mines in 
Nevada, withiagenls there upon whom process can be si>rvad, is a person 
found in the district within the meaning of the Judiciary Act of 1789: Thorn- 
burgh V. Savage M. Co., 7 M. R. 667. 

12. A bill for an account of the products of an oil well should be brought 
in the county where the well is situ.ite: Thompson v. Noble, 3 Pittsburgh, 
201; Post Oil. 



Fleeson v. Savage Silver Mining Co. 153 



Fleeson v. The Savage Silver Mining Co. 

(3 Nevada, 157. Supreme Court, 1867.) 

Stockholder at date of suit disqualified as juror. A person who is a 
stockholder in a mining corporation at the time a suit is commenced 
' against it, is, under the^statutes of Nevada, liable for his proportion of 
the costs incurred by the corporation in such suit, and is therefore dis- 
qualified to act as ajuror, although his connection with the corporation 
was severed before the trial. 

Error in overruling challenge for cause, cured. If a court refuses to 
allow a challenge for cause against a jaror who is disqualified, and the 
same juror is afterward peremptorily challenged, and there is no ob- 
jection to the twelve jurors who find the verdict, the error of the court 
in overruling the challenge for cause is cured by the peremptory chal- 
lenge. 

The fact that a peremptory challenge is used to set aside a juror 
who should have been set aside for cause, will not authorize a reversal, 
unless it is made to appear that the peremptory challenge was needed 
to excuse an objectionable juryman. 

The court will not presume without an aflBrmative record that a party ex- 
hausted his challenges. 

Assignment of errors not a statement of facts. An assignment of errors 
can not be received by an appellate court as a statement of facts in 
favor of the "arty making such assignment. 

Imperfect record — Presumption as to disqualified juror. In a case in 
which G., a disqualified juror, was challenged for cause, and the chal- 
lenge overruled, if the record does not show wliether he served as a 
juror or not, and there is no assignment of error on the ground that he 
did so serve, but only that appellant was compelled to challenge him 
peremptorily, it will be assumed by the Supreme Court that he was per- 
emptorily challenged. 

Appeal from the District Court of the First Judicial Dis- 
trict; Hon. 0. BuEBANK presiding. 

♦ 

On the trial of this cause, John Gillig was called as a 
juror. It appeared by his examination, touching his quali- 
fications for a juror, that after tliis suit was commenced 
against the defendant he became a stockholder in tliat cor- 
poration, and so continued to be for some time, during wliich 
the suit was pending, but had sold out all his stock in the 
company previous to being called as a juror. It also .appeared 
that, during the pendency of this suit, he had made a con- 
tract with a stockholder of the company to purchase from him 
ten feet or ten shares of stock in the company. 



1 54 JUEOE. 

Before this stock was actually transferred to lilm, he as- 
signed tlie contract to anotljer party, and at tlie time of his 
examination touching his qualification as a juror, he neither 
held any stock in the company nor had any contract for the 
purchase of stock therein. 

J. Neelt Johnson and Eobeet M. Clarke, for appellant. 

0. J. HiLLTBK, for respondent. 

By the Court, Lewis, J. 

But one error is relied on by the appellant in this case as 
a ground for the reversal of the judgment, namely, that tlio 
court erred in overruling tlie challenge interposed to the juror 
John Gillig. 

That jurors, to be competent, should stand iiiditfor- 
ent, and should occupy no position nor stand in any 
relation which, in contemplation of law, renders them in- 
capable of being impartial, there can be no question. 
They must be superior to every just objection, or in the lan- 
guage of Lord Coke, they should " be indifferent as they 
stand unsworn." When entering the jury box they should 
be free from all feelings of interest in the result of the 
action, from all prejudice against or favor toward either of 
the parties, with no opinion or conviction which would 
constitute the slightest obstacle to a fair consideration of the 
evidence, or a candid conclusion upon it. 

"We are satisfied beyond all doubt that the juror Gillig 
had an interest adverse to the plaintiff in this action, and 
was not, therefore, a competent juror. The disqualifyiii"- in- 
terest, did not, however, as claimed by counsel for appellant, 
result from the contract to purchase a certain amount of the 
defendant's stock, and which had been assigned by him at 
the tinie of the trial, but from the fact tliat he was a stock- 
holder in the Savage Company at the time this suit was 
commenced and for some time afterward, and thereby, un- 
der the laws then existing, became liable for his propor- 
tion of the costs incurred during such time. By section 16 
of an act entitled " An act to provide for the formation of 



Fleeson y. Savage Silver Mining Co, 155 

corporations for certain purposes," approved December 20, A. 
D. 1862, it is declaredthat each stockholder should be individ- 
ually and personally liable for his proportion of all the debts 
and liabilities of the company, contracted or incurred during 
the time that he was a stockholder. This law, except the 
twenty-sixth section, which was annulled and made void 'by 
Congress, remained in force until it was repealed by the leg- 
islature of the State on the tenth day of March, A. D. 1865. 
This action having been instituted whilst that law was in 
force, and whilst the juror was the owner of a certain amount 
of stock in the companj'^, his liability for a proportion of the 
costs incurred in it became established. His interest in the 
result is therefore clear, beyond all qnestion; for if the plaint- 
iff succeeded in obtaining j ndgra en t against the ,defendan,t, 
he, the juror, would thereby become liable to pay a proportion 
of the costs incurred during the time he was a member of tlie 
company; whilst, on the other hand, if the plaintiff tailed, 
no such liability would exist. Hence, he was evidently 
disqualified under the fifth subdivision of section 162 of 
tlie Civil Practice Act; and had he tried the cause we 
would have no hesitation in reversing the judgment for that 
reason. It is, however, admitted by counsel that he did 
not, but was peremptorily challenged by the appellant after 
the court refused to allow his challenge for cause; and there 
is nothing in the record to show, nor indeed does it seem to 
;be claimed in argument, that there was any objection to 
either of the twelve jurors who found the verdict. Such 
being the case, it is left to be determined whether tlie error 
committed by the court below, in overruling the plaintifi''s 
ciiallenge for cause, was blotted out or cured by the subse- 
quent peremptory challenge, or whether its effect was to 
prejudice or injure him, notwithstanding the juror did not 
try the cause. Upon this point we conclude that the per- 
emptory challenge deprived the error, committed in over- 
ruliuff that challenge for cause, of all its force or effect as a 
ground for reversal of the judgment of the co,urt below. 

Judgments otherwise regular and prroper should not be 
set aside or disturbed for trivial or immaterial errors com- 
mitted upon the trial. To justify a reversal by an appellate 
court, the error should be of such character that its natural 



156 JUEOK. 

and probable effect would be to change or modify the final 
result. If it is clear, from the record, that no injury resulted 
from the error, the judgment should not be reversed, for the 
appellate court does not set aside the judgment of an inferior 
tribunal because of the mere error, but for the injury re- 
sulting from such error. True, it is not alwalys necessary for 
tiie party complaining to show directly that lie suffered injury, 
because injury is usually presumed to be tiie result of mate- 
rial error. It is, nevertheless, the injury directly sliown, or 
presumed, which is in fact the inducement to the reversal of 
the judgment. Hence the rule observed by all appellate 
courts, that only such errors as probably affected the verdict, 
or substantial rights of the parties, will warrant the granting 
of a new trial. 

The ultimate object of all civil actions is to secure some 
legal or equitable right. Tiie rnles governing the impaneling 
of juries, the introduction of evidence, and the general con- 
duct of trials, are but the means by which such right is to be 
obtained. Unquestionably, those rules should be closely fol- 
lowed; but if it appear that a departure from them did not 
defeat or affect the ultimate object of the trial, it would be a 
mockery of justice to set aside a judgment otherwise proper 
and regular because of such departure. If the error com- 
plained of here was of a character likely to have nffected the 
linal result, the judgment should be reversed; otherwise it 
should be affirmed. If Gillig had acted as a juror, the injury 
to the appellant wouldbe iniinediate, as it would deprive him 
of an impartial trial and force upon him an incompetent juror 
by refusing to sustain the challenge interposed by him. The 
presumption of injury in such case would be conclusive, be- 
cause tiie juror, being rendered incompetent by law to sit in 
the case on account of interest in the result, the conclusion 
would be that he was influenced by such interest in flndiuf' 
the verdict. In that way the error of the court in overrnlino- 
the challenge would reach and affect the final result; but as 
the juror was peremptorily challenged and did not try the 
cause, how was the appellant injured 'by the error complained 
of? Counsel say, by being compelled to use one of his per- 
emptory challenges to set aside a juror who should liave been 
set aside for cause. That, however, could not possibly result 



Fleeson v. Savage Silver Mining Co. 157 

injuriously to the appellant unless he had exhausted all his 
peremptory challenges, arid there was some objectionable per- 
son on the jury who could not be set aside for cause. If it 
were shown to this court that the appellant was improperly de- 
prived of a peremptory challenge under such circumstances, 
where he may possibly have needed it, perhaps it might be 
treated as sufficient to authorize a reversal of the judgment. 
The law gives to each party in a civil action four peremptory 
challenges. If but one be used, though that be upon a juror 
who should have been set aside for cause, how can it result 
in prejudice? The party in such case would have three chal- 
. lenges left, which he could use if any of the jurors were ob- 
jectionable to him. The fact of his not choosing to use 
them creates a strong presumption that he was fully satis- 
fied with the jury — that it was unobjectionable to hiin. 

To obtain an impartial jury is the sole object of the law 
giving the right of challenge. Therefore, when such a jury 
is obtained, there can be no jnst grounds of complaint. By 
his own act in not setting aside any of the jurors when he had 
the power to do so, it is rendered clear that Jje had a jury sat- 
isfactory to himself. It is claimed by appellant that the rec- 
ord shows that his peremptory challenges were all exhausted. 
Biit we find. nothing of the kind in the transcript presented 
to us. Tiie only reference to or mention of such a fact is 
found in -appellant's assignment of errors. He says: "The 
court erred in refusing plaintiff's challenge to the juror John 
Gillig for cause, and compelling him to exclude said juror by 
peremptory challenge, thereby forcing him to exhaust his 
peremptory challenges, and thus disabling him from exclud- 
ing other jurors to whom he objected." 

It is a proposition too clear for argument, that an assign- 
ment of errors can not be received by an appellate court as 
a statement of facts in favor of the party making such assign- 
ment. The party wishing to move for a new trial, or to take 
an appeal, may assign his errors in any form he pleases, and 
assume any position he may wish, but to make them available 
they must be sustained by a statement of the facts in the 
case. 

The court in settling, or counsel in agreeing upon a state- 
ment, does not pretend to pass upon the correctness of the 



158 JUEOR. 

assinjnment of errors, nor indeed has either of them a right 
tu interfere with them. Tlie assertion in the assignment re- 
ferred to can not therefore be received or treated as a fact in 
tlie case. Tlie admission of counsel tliat tlie juror Gillig was 
set aside, is the only evidence which we have tliat tlie appel- 
lant used any of his peremptory challenges. As the law gives 
four peremptory challenges, and only one is shown to have 
heoii used by appellant, we must presume tliat he had three 
remaining which he did not use. It can not certainly be pre- 
sumed that tliey were all exhausted when the record shows 
but one of tliem used. Hence, we must treat the case as if 
the record showed affirmatively that but one peremptory chal- 
lenge was nsed by the appellant. 

But as we have endeavored to show the employment of one 
such challenge, though to set aside a juror who should have 
been rejected for cause, will not justify the reversal of the judg- 
ment below. The view which we take of this question is 
fully sustained by the cases of Freeman v. The Peojjle, 4 
Denio, 9, and Ferriday v. Selser, 4 How. (Miss.) 518. In 
tlie first of these cases, the Supreme Court say: " Upon this 
point the prisoner had the power and right to use his peremp- 
tory challenges as he pleased, and the court can not judicially 
know for what cause or with what design he resorted to them. 
He was free to use or not to use them as he thouglit proper, 
but having resorted to theiti they must be followed out to all 
their legitimate consequences. Had lie omitted to make per- 
emptory challenges, his exceptions growing out of the various 
challenges for cause would have been regularly here for revis- 
ion. But he chose by his own voluntary act to exclude those 
jurors, and thus voluntarily, and as I think effectually, blotted 
out all such errors, if any, as had previously occurred in re- 
gard to them." 

In tlie last case, the same question is disposed of in the fol- 
lowing manner: 

"It appears from the record, however, that when the juror 
was decided to be competent, Ferriday set him aside by per- 
emptory challenge. He did not, tlierefore, try the cause, and 
there is no exception to any of the twelve jurors who found 
the verdict. We are therefore inclined to the opinion that as 
the error complained of is not sliown to have prejudiced the 



Fleeson v. Savage Silver Mining Co. 159 

right of Ferriday in any \vay, that it is not a good reason for 
reversing the judgment. It is a general rule that an appel- 
late court will not set aside a judgment otherwise regular 
and proper on account of a mistaken opinion of the inferior 
court, which is not shown to have influenced the final result." 

So it seems to be held in Tennessee: McOowan v. The 
State, 9 Yerg. 184. 

It was not shown by the record in any of these cases wheth- 
er the appellant had exhausted his pereraptoiy challenges or 
not. They therefore clearly sustain the proposition that no 
injury will be presumed from the error complained of here, 
unless indeed it be shown by th? appellant that his peremptory 
challenges were all exhausted. In such case, there being a 
possibility ofinjury, the judgment might be reversed. 

But in this case, as we have shown, the presumption from 
the record is that the appellant used but one of the challenges, 
and that he had three remaining unused. 

There could, therefore, be no prejudicial results from the 
error complained of, and the judgment must be affirmed. 

Johnson, J., having been counsel in this case, did not par- 
ticipate in this decision. 



EESPONSE TO PETITION FOR EEHEAEING. 

By the Court, Beatty, C. J. 

The first proposition of counselupon petition for rehearing 
is, that this court erred in holding that nothing contained in 
the assignment of errors could be treated as a statement of 
fact admitted to be correct by the other side. Upon a careful 
re-examination of the case we still think we were right. On 
page ten of the record we first find the title of the court in 
which the action was pending; then the title of the case, and 
then follows this language: 

"Plaintiff's statement and bill of exceptions to be used in 
said court on a motion for a new trial of said cause, and in 
the Supreme Court should said motion be denied. 

"Plaintiff moved for a new trial on the following grounds, 
to wit: 



160 Juror. 

"1. InsiifEciency of the evicleneo to justify the verdict; 
and to sustain this, he refers to tlie statement of the evidence 
hereto annexed, marked Exliibit A." 

" 2. Errors in law occurring at the trial and excepted to at 
the time by the plaintiflf, to wit: 

"I. The court erred in refusing plaintiff's challense to 
the juror Jolm Gillig for cause, and compelling plaintiff to 
exclude said juror by peremptory challenge, and thus disabling 
him from excluding other jurors to whom he objected. And 
to sustain this he refers to Exhibit A, pp. 2J, 2^, 2| and 3." 

A number of other alleged errors of law are stated, and 
finally, on page eleven of the record, this paper seems to end 
in this way: 

" For tlie purposes of this motion plaintiff will refer to the 
documentary evidence on file' and not included in Exhibit A, 
as well as the minutes of the court. 

"J. S. PiTZEE, and 

" E.EAED0N & HbKEFOED, 

"Plaintiff's Attorneys." 

On page twelve we have again the entitling of the court, 
the cause, the names of attorneys, etc., followed by this lan- 
guage: 

" In the impaneling of a jury, M. M. Mitchell sworn to 
answer questions." Then follow the questions to and answers 
of Mitchell. Then the questions and answers of other juror?, 
the rulings of the court, the testimony of the M'itnesses in the 
cause, etc. Finally the statement winds up as follows: 

"Case closed and submitted to tiie jury, wlio retired, and 
returned into court, and delivered a verdict in favor of de- 
fendant. The jury being then polled at the request of plaint- 
iff's attorneys, eleven of the jurors concurred in the verdict; 
one only disagreed to it. 

"The foregoing statement is agreed to as correct. 

"November 27th, 1865. 

" PiTZEE & Ketsee, and 
" Eeaedon & Hkekfoed, 
"Attorneys for Plaintiff. 

" CeITTENDEN & SUNDEELAND, 

"Attorneys for Defendant." 



Fleeson v. Savage Silver Mining Co. 161 

The question is: When counsel for defendant ajjjreed to the 
foret^oinij; statement, vvliat did they admit? With regard to 
the testimony, the answers of jurors to questions touching 
their competency, and the rulings of the court, it was 
no doubt intended to admit that these were correctly 
stated in the foregoing statement It was also undoubtedly 
intended to admit that counsel for plaintiif had filed a paper 
sucli as appears on pages ten and eleven of the transcript. 
But surely it can not be contended that defendant's counsel 
intended to admit, or did adinit, that all the propositions con- 
tained in that assignment were true. The defeated party in 
any cause may file an assignment of error, containing any- 
thing he may choose to insert therein. He may assign a 
hundred errors having no foundation in fact and no connec- 
tion with the case. The opposing counsel, in settling the 
statement, could not deny the filing of such an assignment 
of errors. As we understand the admission of defei dant's 
counsel, it is simply that plaintifi' had filed an assignment of 
errors such as is set forth on pages ten and eleven of this 
transcript. 

Tliat plaintiif 's counsel did not consider this assignment of 
errors as stating the facts of the case, is shown on the face of 
that assignment. The first error of law assigned reads thus: 

" 1. The court erred in refusing plaintiff's challenge to the 
juror John Gillig for cause, and compelling plaintiff to ex- 
clude said juror bj peremptory challenge, therebj' forcing the 
plaintiff to exhaust his peremptory challenges, and thus dis- 
abling him from excluding other jurors to whom he objected; 
and, to sustain this, he refers to Exhibit A, pages 2J, 2|-, 2f 
and 3." If the assignment of errors was also to stand as a 
statement of the facts to support the error, why refer to cer- 
tain pages in Exhibit A to sustain the assignment? Un- 
doubtedly the counsel understood the assignment as the court 
does; merely as a statement of the point of argument to he 
used, with reference to another paper, for the facts to sustain 
the point. If not, why refer to Exhibit A to sustain the ex- 
ception ? 

In the transcript we find nothing which is called Exhibit 
A; but we suppose reference ismade to the statement begin- 
ning on page twelve. That statement simply shows that John 

VOL. VIII.— 11 



162 JUEOE. 

Gillig was questioned touching his qnalifioations aa ajnror; 
that, after the examination, phiin tiff interposed a ciiallenge for 
cause, wliich challenge was overruled by the conrt. Here tiie 
statement closes, without showing wliat after action was taken. 
After a ciiallenge for cause is overruled, one of two things 
usually happens; the challenging party interposes a peremp- 
tory challenge, or else the juror is sworn, and sits in the case. 
A statement, or motion for new trial, or an appeal, should 
certainly show which of these events actually happens. 

Causes are reversed, not because judges at nisi prlus en- 
tertain wrong opinions upon some point of law arising in the 
progress of the trial, but because thoygive some practical ef- 
fect to such erroneous opinions. A bill of exceptions or state- 
ment should not stop with merely showing that the judge 
expressed an opinion which was erroneous; it should show that 
some wrong step was taken in the progress of the trial. If a 
judge expresses an erroneous opinion about some material 
point in his cliarge to the jury, that opinion is error, because 
the jury are supposed to be influenced by the erroneous views 
of the court. But if a court rules that a certain kind of testi- 
mony is admissible, when in fact it is not admissible, this 
ruling, unless it be taken advantage of by the opposite side, 
does no harm, and is not such error as will reverse a judgment. 
Hence, in such case, a bill of exceptions should not merely 
state what was the ruling of the court, but should also state 
distinctly that the illegal testimony was introduced under the 
ruling. So, if a juror is challenged for cause, and the chal- 
lenge is not allowed, the statement or bill of exceptions should 
show distinctly what disposition was made of the juror. If 
that is not shown, we do not see how this court is to determine 
that error was committed. The mere opinion of the jud^e 
does no hurt to either side. It is his action founded on tliat 
opinion which is erroneous. If this court is not apprised 
of what that action was, how can it review the case? In this 
case, the statement only shows what was the opinion of the 
court; it does not show what resulted from that opinion— 
what subsequent action was taken. 

If the. opinion could only have produced one result, then, 
indeed, the statement need only have shown what tiie judge 
decided, because tliis court would have understood what nee- 



Fleeson v. Savage Silvee Mining Co. 1 63 

essarlly followed. But if an opinion of a certain character 
may have been followed by several courses of action, some 
of which would have resulted in injury to the party excepting, 
and others been perfectly harmless, we can not say whether 
any injury was done to the complaining part}'. The affirm- 
ative is on the appellant, and, failing to show error, the judg- 
ment of the court below must be affirmed. 

In our former opinion, we say it is admitted by counsel 
that Gillig did not sit in the case; and petitioner claims that , 
this admission should not bind appellant, because it was 
made simply on the facts presented by the statement as 
understood by appellant's counsel; that if the assignment of 
error is not to be considered as containing facts on which the 
court can act, neither should the counsel for appellant be 
bound by the facts therein stated which militate against his 
client. 

This position is perfectly correct. But leaving this admis- 
sion out of the case, appellant is in no better condition. 

In the first place, there is no assignment of error on the 
ground that Gillig did serve as a juror; and if the appellant 
wer6 allowed to file such an assignment in this court for the 
first time, then the record would show two assignments di- 
rectly contradictory the one of the otlier. First. That appel- 
lant was compelled to exhaust one of his peremptory chal- 
lenges to get Gillig off the jury. Second. That he (Gillij;) 
served on the jury. No possible state of facts could support 
both these points. Yet both points might have been made 
in tlie assignment of errors in the court below, and no judge, 
in settling the statement, could with propriety have stricken 
either out. The assignment of errors is in the discretion of 
the appellant. This court must judge whether the facts 
stated in the record sustain tlie assignments. In this case, 
there being no assignment of error on the ground that Gillig 
served as a juror, but only that appellant was compelled to 
cliallenge him peremptorily, we did assume that the record 
showed a peremptory challenge. We did this upon the 
s-round that if he had served as a juror it would have been a 
much stronger point for appellant. When, therefore, the 
appellant only complained of being compelled to challenge, 
we assumed that the juror had not served in the case. If he 



164 JUEOR. 

liad served, it is not likely the appellant would have failed to 
complain of it. 

Only two. results could reasonably have followed the ruling 
of the court on the challenge for cause: the one, that Gillig 
served as a juror; the other, that he was peremptorily chal- 
lenged by appellant. If he served, it was clearly error. If 
the compelling appellant to challenge peremptorily was error, 
tlien certainly the case should be reversed, because error, in- 
jurious to appellant, was the necessary result of the ruling, 
and it would be unnecessary to determine whether this injury 
resulted from the juror serving or from the challenge. 

But as, in our opinion, one of these results would have 
been error and the other not, it becomes necessary for us to 
determine, if we can, which result did follow the ruling; or, 
if we can not determine that, then to settle what the rule 
should be in a case thus left uncertain. As we before said, 
the appellantmust niakeout his case, and if he only established 
the fact that something was done wliicli might or might not 
have produced a result injurious to himself, he has failed. 

So, too, all reasonable presumptions are to be indulged in 
favor of the regularity of proceedings in the court below. 
This last rule has not much force in this case, because it is 
conceded the judge below did err in his rulings; but still, as 
the chances were even as to whether that error of judgment 
was followed by action injurious to appellant, or that which 
was perfectly harmless, even in such case the rule is perhaps 
not altogether inapplicable. 

As there was an assignment of error on the ground that 
appellant was compelled to exhaust his peremptory chal- 
lenges on Gillig, and none on the ground that Gillig served 
as a juror, certainly the presumption is tliat he was chal- 
lenged. Whether this exhausted liis peremptory challenges, 
or whether he still had one, two or three at "his disposal, 
did not appear of record. The question then arose, whetlier 
this was sufficient to reverse the case. This question was one 
of very great doubt with the writer of this opinion. Upon 
an examination of authorities, we find a most decided prepon- 
derance in favor of the views we took in the case. The Vir- 
ginia cases seem to hold that the simple fact of compellinff a 
party to cliallenge a juror peremptorily when he should have 



Fleeson v. Savage Silver Misting Co. 165 

been set aside for cause, would be good ground for granting a 
new trial. 

These decisions were in criminal cases. Possibly the rule 
might be different in that State in civil cases. There is also 
a dictum in 3 Gill. 368, to the same effect. This was also in 
a criminal case. On the other side, we find the several cases 
referred to in the original opinion. As the record fails to 
affirmatively show that appellant did exhaust his challenges, 
we think the original opinion must stand as the law of the 
case. In this case probably, the appellant, on a more full and 
complete statement, would have been entitled to a new trial. 

"We always regret being compelled to decide a case on a 
mere technicality not affecting the merits, but we can not go 
outside of the record. 

A rehearing is denied. 

Johnson, J., did not participate in this decision. 

1. Verdict set aside on account of jury being treated by successful party. 
Sacramento Co. v, Showers, 6 Nev. 291. See Schiselerv. Chisshire, 5 M. 
R. 309. 

2. Challenge to juror on account of opinion as to certain vein forma- 
tions: Weill V. Lucei ne Co., 3 M. R. 372. 

3. Rejection of juror on court's own motion: Atlas Co. v. Johnston, 1 
M. R. 388. 

4. It is objectionable to allow a law text book to be read by counsel to a 
jury: Gelberson v. Miller M. Co., 5 W. C. R. 503; the same as to scientifle 
works: 6 M. R. 21, note 10. 



166 Laches. 

BlEMINGHAM CaNAL Co. V. LlOYD. 

(18 Vesey, Jr., 515. ' Hi{{h Coiivt of Chancery, 1812.) 

■lujuiiction refused on account of laches. Injunction being' soujfht 
against the draining of a co.il mine prep irntory to working the same on 
account of allejrfd injury to a canol, it was refused on account oi the 
laches of plaintiffs for two years, permitting expenditure. 

The plaintiffs being authorized by an act of Parlimnent 21 
Geo. Ill, to make reservoirs to snpplj the canal with water, 
had applied to that purpose some pieces of wiiter, called 
Broadwater, arising from the siibterraneons communication of 
water in some exhausted coalmines. The defondnJits, who 
were proprietors of neighboring;' euil mines, in consequence of 
a ))revious promise to the phiintiiTs, gave them notice in April 
rslO, of the intention of tlie delendants to open an old sough 
or level made for the purpose of draining the exliausted mines 
and at the expiration of six mouths to draw off the water pre- 
paratory to working their minns. A counter notice was given 
by the plaintiffs that they wou'd sue the defendants at law lor 
damages if they siiould jiroeood. The delendants having pro- 
ceeded before they commencfd to wurk their collieries, t!ie bill 
was filed, praying an ill junction against opening or proceed- 
ing witli any sough, drain or cliaunel, owimected oV communi- 
cating witi\ the said pools or pieces of water, or in any otlicr 
manner draining any of tlie wafer from the Siiid pool or res- 
ervoir of Broadwater by means whereuf the said canal or navi- 
gation may be injured. 

Stri Samuel Romu.lt and Mr. Bknyon, for the plaintiffs, 
moved for an injunction upon afHdavts, slating an expendi- 
ture by defendants of £2,000 in ereclitig fire engines, etc. 

Mr. ITabt and Mr. J. Martin, for tl»e defendants. 

The Lord Chancellor (Em.on). 

Assuming, for the present purpose, this p^o.-'o of water 
called Broadwater to be a reservoir within this j,ct of I'ar- 

' Real del Motite Co. t. Pond Co., 7 M. R. 452; King's Lynn v. Pembei- 
ton, 1 Swanst. 252. 



PlJENDEBGAST V. TrE,T05r. 167 

llament, the plaintiffs must establish their right to dtxinafres 
at law, before I ought to grant tliis injunction. I proceed 
here upon the circumstances of delny. Tiie defendants hav- 
ing, in pursuance of tlieir prom.ise to give six months' notice 
of beginning to work their mines, given notice in April, 
1810, expressly mentioning tlieir purpose to open tlie songh, 
the compan3' liaving given a counter notice that they would 
in tliat case seek damages at law, and having a right to apj^ly 
promptly to this court to prevent the act, instead of taking 
that course permit tlie defendants to expend £2,000 in pro- 
ceeding toward getting coal, by erecting lire engines, etc.. 
and wlien tliey are about to get the coal, the plaintiffs conid 
for an injunction. They ought to have commenced theii' 
opposition when they could have done so with justice; and 
though tliis is uot tlie case {Anon. Auib. 209) before Lord 
Hardwicke, of stopping a colliery actually working, yet the 
act of stopping or draining a colliery about to be wrought, 
may possibly, with reference to rival ownerships, be the means 
of making it absolutely unproductive twelve months hence, 
wlien it is to be wrought, instead of at the present time. 

I have seen the injunction granted in Lord Byron's case 
{Robinson v. Zord Byron, 1 Bro. 0. C. 588) by Lord Thurlow, 
who, though the plaintiff applied immediately, put him to go 
forthwith to trial. 

Tliese plaintiffs, tlierefore, not having applied until nearly 
two years after the notice was received, must take their chance 
at law, and this court ouglit not to interfere by , granting an 
injunction. 



Peendeegast v. Tueton'. 

(1 Tounge & CoUyer, Ch. 98. High Court of Chancery, 1841.) 

special risk— Special Tigrilance. Mineral properby, of all properties per- 
haps the most requires the parties interested in it, to be vigilant and 
active in asserting their rights. 

' Facts of the case— Delay by forfeited shareholders. The plaintiffs, 
shareholders in the" United Hills Mining Company," had paid all calls 
on their shares, when, in 1826, a new assessment was laid, against their 
protest. In 1828 their shares were declared forfeited. The concern 
was then worked at a loss till 18;!"), when it began to make a profit. In 

' Learning v. Wise, 7 M. R. 41. 



168 Laches. 

1838 tliey filfid their bill. HAil. that the rights of plainfifls wei-e 
barred by laches, and their failure to show good cause for the delay, 
allhonghthe impropL'r nature of ihe forfeiture was conceded as W(;ll as 
many other acts of misconduct by the directors during the interval. 

By an indenture dated the 8tli day ofFebrnarv, 1825, and 
made between Eicliaid Penrose of tlie first part, Sir Thomas 
Turton, Bart-., Eobert Clarke and Charles Carpenter of the 
second part, and the said Sir Thomas Turton, Eobert Clarke 
and Ciiarlcs Carpenter, and the several other persons whot^e 
names were thereunto subscribed and seals affixed of the tliird 
part (beinnf the deed of settlement of the "United Hills Mine 
Company"), it was covenanted and agreed, that 'the cajiital of 
the company should consist of the sum to be raised by the sale 
of 200 shares of £50 each, and of such further sum or sums as 
might be raised by the sale of new shares, under tlie power 
for tliat purpose therein contained, such new fhaies i;ot 
to exceed tlie whole number of shares, including the number 
of 300; that there should be three directoi'S of the company, 
each of whom should hold twenty shares, and tliatSir Thomas 
Turton, Eobert Clarke, and Charles Carpentei-, should be the 
directors and trustees of the company; that the directors 
should continue to hold' office from the day of the date of tho 
said indenture for the space of seven years then next ensuing, 
and until the first Friday which should be in the month of 
June, 1832, and then should go out of office, but might never- 
theless be re-elected by the proprietors or directors for the 
then seven years next ensuing, or for any shorter term . That 
the directors should have power to renew leases, etc. That the 
directors for the time being should give one month's notice in 
each year of a general court of proprietors, to be liolden at the 
office of the company on the first Friday in June in each year, 
by letter sent to each proprietor. That at such general court 
a report should be made to the proprietors by the directors of 
the state of the mine, and an account given of the receipts and 
expenditure. That as to all questions relating to any busi- 
ness or matter to be transacted at the general meeting, or any 
special general meeting, a majority of tlio votes of all quali- 
fied proprietors present, not declining to vote, should be suffi- 
cient to decide the same, except for altering orrescindiuir the 
laws or regulations of the company, or dissolving the same, 
as thereinafter mentioned. 



Prendergast v. Turton. 169 

That every proprietor should, on paying into the banking- 
house of tlie company his first installment, subscribe his name 
and place of abode in a book of the company, etc., and such 
signature should entitle the shareholder to be considered from 
thenceforth as one of tlie proprietors of and adventurers in the 
said company, and to the receipt of all the benefit and advan- 
tage thereof, in proportion to the shares holden by him or her, 
so long as lie or she should comply vyith the conditions there- 
to annexed, and should pay the several installments on the 
said sliares of £30 each, as the same should be called for by 
the said directors for the time being. Tiiat the directors of 
the said company should have power to call for ins'.allments 
on the said shares at such times and in such proportions as 
should be necessary, and, if necessary, should have power to 
call for the whole installments; and in case the same should, 
in the judgment of the directors for the time being, be insuf- 
ficient for carrying on the business of the said mine without 
further aid, then and in such case the directors should call a 
meeting of the proprietors, and lay before them a full and 
particular account of the state of tl)e concei'ns of the said com- 
pany, and submit to their decision tlie propriety of increasing 
the mimher of shares^ or of taking such other steps as might 
appear advisalle. That in case any installment or install- 
ments so called for by the directors as aforesaid, should be 
unpaid for the space of fourteen days after the day fixed for 
the payment thereof, the share or shares on which such pay- 
ment was called for and unpaid, and all the installments which 
siiould have been previously paid thereupon, should be abso- 
lutely forfeited for the benefit of the company, and the orig- 
inal holder thereof should cease from such period to have any 
interest or advantage or concern whatsoever in tlie said com- 
puny or mitic, in respect of tiie share or shares so forfeited. 
That if at any time or times thereafter it should become nec- 
essaiy to increase tlie said shares of the said mine or com- 
pany, by the addition of the number of one liundred more 
shares of £.50 each, as before provided, tlie increased number 
of such shares should be allotted and divided to and in equal 
proportions amongst tlie then proprietors, according and in 
proportion to their respective shares; and in case any such 
proprietors should decline to increase his or their shares by 



170 Laches. 

sncli proportionate a,ddition thereto, the shares declinecl to he 
taken by such proprietor or proprietors slionld be divided 
equally amongst such reniaininsy proprietors, etc. Tliat the 
proprietors who were in future to be eligible to fill the offices 
of directors, should be elected as follows (that is to say), every 
vacancy occasioned in the office of director by removal, death 
or resignation, or by any other means except that of going 
out at the expiration of the period for which they were. elected, 
should be filled up with all convenient speed by the election 
of a new director at the annual general meeting, or at any 
special general meeting to be specifically called for that pur- 
jjose. That the control and inaniigeniont of the funds of the 
coin]iany should be vested in the directors for the time being, 
and they were thereby authorized and empowered at the gen- 
eral annual meeting of the proprietors, to declare such divi- 
dend as in theirjudginenfshonld be proper to, be made amongst 
the proprietors according to their respective shares. 

The deed contained no provision relating to the dissolution 
of the partnership, notwithstanding the allusion to such p o- 
vlsion before mentioned. 

Tlie deed was executed by the directors and the other pro- 
prietors or shareliolders in the undertaking, and, an^ongst 
others, by a Mr. Serjeant, who was then the secretary, and 
who held twenty-five shares. Of these shares he sold four to 
Miss Mary Kent, and two to her sister, Miss Isabella Kent; 
and though the sliares remained for some time in the name 
of Serjeant, the Misses Kent were treated by the company as 
the real owners of those sliares. Upon the occasion of Serjeant 
ceasing to be secretary, their names were entered in the books 
of the com])any. 

The Misses Kent regularly paid the amount of calls which 
were made upon tiiem in respect of their shares, to the full 
extent of £50 per share. Before paying the last installment 
Mary Kent wrote a letter, dated in September, 18^(i, to Mr. 
liebden, the then secretary of the company, in which, after 
proposing to pay the tenth installtnent, due on tlie shares of 
her.^elfand sister, she requested to know whether tiiat was 
likely to be the hist call; adding that she was anxious to settle 
for all tiiat was due without loss of time, as she was on the 
eve of leaving home. To this answer Mr. Hebden replied in 



Peendekgast v. Turton. 171 

a letter dated the 27tli of September, in which he stated that 
lie had some time previously mentioned to Mr. Wilson (a gen- 
tleman who had been in the habit of paying the calls for the 
Misses Kent), that at a meeting of the shareholders it had been 
resolved to meet the expenses of the mine by additional calls 
rather than by an increase in the number ot shares, and that 
a tall of £5 a share had been made, wliich had been paid on 
the 10th inst. In reply to this letter Mary Kent wrote a let- 
ter to Ilebden, in which she said tliat she should make some 
arrangement for the payment of the additional £5 a share, 
adding, however, that she was riot prepared for this last de- 
mand, as she had been led to suppose by the former secretary 
that no more than half the original sum of £50 would be re- 
quired. ^ 

The resolution to which Mr. liebden allnded in his let- 
ter to Miss Kent, was passed at a meeting which took place 
on the 27th July, 1826, and was iti these terms: . 

"Resolved, that the mines be prosecuted with as much at- 
tention to the diminution of expense as possible; and that 
calls on each shareholder be in proportion to the nu^nber of 
shares held by each, and at intervals as great as the nature of 
the work contemplated will admit." 

In November, 1826, Mary Kent married Captain Stephen 
Prendergast. Soon after the marriajje Mrs. Prenders:ast re- 
ceived a letter from Mr. Hebden in which, on the part of the 
company, he demanded payment of the additional installment 
of £5 per share, mentioned in his former letter, and also a 
further additional installment to the same amor.nt. These 
additional payments Captain Piendergast and Miss Kent re- 
fused to make; and they qnestioned the right of the com]. any 
to enforce them._ 

A long correspondence then ensued between Captain Pren- 
dergast and Mr. Hebden, in the course of which the former 
repeatedly offered to sell his shares to tlie company at a re- 
duced rate; and by a letter of the 22d Febrnary, ]827, he 
made a specific oiier of the shares to the company at £25 per 
cent. These offers were refused on the ground that the addi- 
tional calls had not been paid up. An objection was also 
raised that the shares in question were not legal interests, but 
held in trust only. Captain Prendergast and Miss Kent then 



172 Laches. 

attempted to sell tlieir shares to third persons, and with this 
view, tendered to the company, for their approval, a draft as- 
signment of the lecjal interest. Tiie company, however, de- 
clFned to do more upon this subject, tiian to consent to a case 
being laid before counsel. 

During these proceedings, fresh calls were continually 
made for installments; and on the Gtli of June, 1828, 'a 
meeting of proprietors was held, at wliich Captain Preuder- 
gast and Miss Kent were reported by the secretary to be con- 
siderably in arrear in the payment of their installments, and 
it was ordered that they should be written to, and apprised 
that unless the arrears of their slnires were paid up in a fort- 
night, the sliares would be forfeited. On the Slst of July, 
1828, no letter havini^ been received in answer to the notices 
sent in pursuance of the foregoing resolution, the shares of 
Captain Prendergast and Miss Kent were declared forfeited. 

The bill, was filed on the StW of September, 1838, by Cap- 
tain and Mrs. Prendergast, against the then directors, Sir T. 
Turtou, Duncan, Campbell aiul Clarke, and against Serjeant 
and Miss Kent, the latter of whom had assiiiiied her intei-ost 
to the plaintiff. It alleged that in 1823 the working of the 
mine was entirely suspended; that for some years afterward 
little or no profit was derived from it; that during the whole 
of that time the plaintilTs were absent from this cuuntry, and 
in consequence of the state of the concern took no further pro- 
ceedings in respect of their shares, but that the plaintiffs re- 
turned to England at the latter end of 1837, wlien they ap- 
plied to have their shares restored to them. The bill prayed 
that tlie declaration of forfeiture of the plaintiffs' shares might 
be declared void, and that the plaintiffs niiglit be let in to 
participate in the proli',8 of the mine, upon payment of their 
share of all expenses incurred in working of it; and with ref- 
erence to certain alterations which had taken place in the con- 
stitution of the company, and certain alleged misconduct on 
the part of the directors, it prayed that the resolutions by 
which it had been attempted to subdivide the shares, might 
be declared void against the plaintiffs, and that the business 
of tlie company might be decreed to be carried on pursnant 
to the provisions of the indenture of settlement, and that the 
directors might be decreed to account for all sums of money 



Prendergast v. Turton. 173 

improperly appropriated by tliem out of the funds of tlie com- 
pany. 

The defendants, Turton, Campbell and Clarke, by their 
answer, denied that the working of the mine had, at any time 
since August, 1828, been entirely, or almost entirely, sus- 
pended; but on the contrary, alleged that it had been ev^er 
since in full work, though the working of it was attended 
with considerable loss, till about the year 1835, when it began 
to yield a profit; and they verily believed that the circum- 
stances of the mine now yielding a considerable profit had in- 
duced the plaintiffs to take the present proceedings. They 
admitted, in answer to a charge in the bill as to that particu- 
lar, that, at a meetiTig of shareholders held on the 7th of 
March, which was attended by the defendants, and of which, 
of course, no notice was given to the plaintiffs, it was resolved 
that certain clauses in the deed of settlement should be an- 
nulled and that the capital of the company should thenceforth 
consist of 4,000 scrip shares of £5 each, making a capital of 
£20,000, and that twenty new scrip shares should be allotted 
for each old share, and that the shares of the plaintiff and Miss 
Kent should be sold for the use of the company. 

With respect to the charges of misconduct in the directors, 
the following facts were admitted by the answer: That Car- 
penter, one of the original directors, died in 1831; that the 
time for Turton and Clarke continuing in office would, ac- 
cording to the deed of settlement, expire in 1832; that Tur- 
ton and Clarke, nevertheless, continued the only directors till 
October, 1834, when Clarke became a bankrupt; and that 
Turton afterward was sole director till 1835, when Campbell 
joined him in the direction. Turton, however, in justification 
of himself, stated that in June, 1832, there were no other 
shareholders qualified, who would accept the office, and that 
in June, 1835, he was re-elected. As to Campbell, it was ad- 
mitted that he, at the suggestion and with the assistance of 
Turton, qualified himself for the direction by purchasing, at 
the low price of £50, twenty shares of one Harding, who had 
been formerly a director of the company, but who had, in 1830, 
absconded from this country, while indebted to the company 
in £300; and that several sums were due on these shares for 
calls in 1829 and 1830, which had never been paid up. It 



174 Laches, 

was also admitted tliat Tarton had charged the company with his 
salary of £100 a year from 1826 to 183G, during a great part 
of which period the mine had been nnproductive. 

It appeared from the admissions that the meetings, in 
which the proceedings relative to the forfeiture of tlie plaint- 
iff's shares were discussed, had been in several resjjects in- 
formally held. 

There was no satisfactory evidence as to the exact residence 
of the plaintiffs during the time of their alleged absence from 
England. It was admitted by the defendants that in 1827 
and 1828 they were in Jersey. 

Tiiree grounds for defense were set np by the answer: first, 
want of parties; secondly, multifariousness; thirdly, the Stat- 
ute of Limitations, and length of time independent of the 
statute. 

Upon the first point, [the defendants' counsel contended 
that all the shareholders, they being all interested in the in- 
troduction of the plaintiffs into the concern, should be parties; 
but at all events, that the persons present at the making of 
the resolutions sought to be annulled, should be parties. This 
point, however, there being no necessity for it, was not deter- 
mined. 

Upon the second point, the plaintiffs' counsel referred to 
Ward V. Coolce, 5 Madd. 122, and Wijnne v. Callander, 1, 
Euss. 293. 'As to the third point, 

Mr. SiMKiNSON and Mr. Thomas Turnek, for tlie plaintiffs, 
said that the Statute of Limitations had nothing to do with 
the subject; the important part of tlie defense was that which 
rested on length of time, independently of the statute. It is 
a startling proposition to say that parties who have ad- 
vanced considerable capital, no part of which has been repaid 
to them, are to have no relief in respect of their advances, 
merely because of the lapse of a few yeaj-s. Suppose the con- 
cern had been unprosperous and the directory had dissolved 
partnership, would not the plaintiffs have been entitled to an 
account and to credit for what they had advanced? Could it 
be said in answer to such a claim that six or seven years Iiad 
elapsed since the claim arose? The length of time micrht and 
onglit to have considerable weight to induce the court to do 



Peexdekgast v. Turtost. 175 

justice to the defendants; but it would not altogether bar the 
plaintiffs, thej being recti in curia and the statute not apply- 
ing. In Lahe v. Craddoch, 3 P. W. 158, the partnership had 
been abandoned by the father of the defendant thirty years 
before the bill was filed, and it was contended that the four 
survivors were entitled to the whole concern; but the decision 
of the master of the rolls was that, though the legal estate 
survived to the four, Craddock's representative had an equity 
in one fifth. ^ [The vice-chancellor referred to Norway v. 
Rowe, 19 Ves. 144, and Senhouse v. Christian, 1 Terra, 560. 
It does not appear that the facts of this case are stated in the 
re:iistrar's book. The prayer of the bill will be found in E. 
L. 1793, B. fo. 712, and the hearing and dismissal of the 
suit is recorded in R. L. 1794, B. fo. 357.] It is submitted 
that those cases depend on circumstances differing very 
strongly from sucli as occur here, though if this case be con- 
sidered with reference to them, the principles laid down by 
Lord Eldon in Norway v. Howe, are perfectly consistent with 
those on which this case must be decided. 

This is not a case in wiiich the plaintiff has his election 
between law and equity, or in whicii there being a remedy at 
law, a court of equity gives extraordinary relief. In cases of 
that sort, no doubt the utmost promptitude is required of a 
plaintiff. In this case the remedy is entirely in equity, and 
the relief to be administered depends on the consideration of 
fraud. The defendants here can have no advantage from the 
Statute of Limitations, or from that analogy to the statute on 
which this court frequently acts; but it is suggested that their 
ground of defense is the acquiescence of the plaintiffs. But 
acquiescence as distinguished from the statutory' bar of the 
Statute of Limitations is founded intrinsically on the subject 
of fraud. Tlie parties against whom the doctrine of acquies- 
cence has been enforced, have eitlier concealed their rights or 
led the other party to believe their rights have been waived, 
and so have inveigled that otlier party into expense, leaving 
];im to expect that he should have the sole benefit. That is a 
fraud upon parties who lend out their money, upon that faith, 
and those who so act can not afterward come forward under 
color of enforcing their rights: East India Company v. 
Vincent, 2 Atk. 83; Banning v. Ferrers, Gilb. Eq. Eep. 85; 



176 Laches. 

Arnot V. Blsooe, 2 7ea. Sen. 96. But in the fonner of these 
cases, Lord Ilardwicke took the distinction as to dealing vvitii 
another person's property with or without liis acquiescence. 
If the party dealing with the property has notice of tlie other 
liarty's rights and no reason to suppose that he may not pur- 
sue thein, the doctrine of acquiescence falls to the ground, be- 
cause there is no fraud. What would Lord Hardwicke have 
said to a case in which the party was excluded from his own 
property? The plaintiffs could not enforce their right; it was 
not practicable. They have done enough to establish their 
legal rights, and are entitled to a decree with all their costs. 
The majority, without the plaintiffs' consent, thought proper 
to call on them for an additional sum; the plaintiffs did not 
agree. Were they not at liberty so to do? Having entered 
into a limited engagement, were they to be compelled to go 
into a larger one? They were not bound to submit to those 
further calls. Could they get back their capital? Admitting 
they had a legal right to determine the partnership, how was 
that to be enforced while the majority chose to go on? They 
could only dissolve it by a bill to which all the shareholders 
would be necessary parties. They were compelled, therefore, 
either to continue paying more than was required by the deed, 
or to forfeit their shares. Has this result any foundation in 
the deed or in law or in justice? The plaintiffs thought it 
unnecessary to repeat useless applications. There was a quies- 
cence for nine years, but no acquiescence foi- a moment. The 
plaintiffs offered every reasonable concession; what more 
could be done? There was no voluntary abandonment — no 
abandonment of their interests at all; and that distinguishes 
this case from Senhouse v. Christian. In that case, which is 
reported in a short note, and Norway v. lio^oe, the parties 
working the mine had reason to believe from the other parties 
that they had abandoned their interest. Here all the plaint- 
iffs did was to refuse to go on in the way proposed by the 
majority, and which was contrary to the settlement; for it can 
not be contended that such a vague expression as "takino- 
such other steps as shall appear advisable," gave them power 
to remodel the company. Supposing even they could have 
proved a case of acquiescence against the plaintiffs, they have 
not made that case by their answer. They rely on the statute 



Pkendergast v. Turton. 177 

and' also on length of time — which only means tlie statute, 
and length of time by analogy to the statute. Then they 
allege that if the concern had not turned out profitable, the 
plaintiffs would not have applied to the court. But to make 
a case of acquiescence they ought to have alleged that th« 
plaintiffs had jriven them reason to suppose that in no case 
should they apply to the court. 

Mr. Sw ALSTON and Mr. Lovat, for the defendants, were 
stopped by the court. 

The Viok-Chancei.loe. 

As to the objection for want of parties, after carefully 
attending to the argument of Mr. Swanston, I considered 
that the best course was to reserve that question till 
tlie case had been fully heard on the part of tlie plain t^ 
iffs, or on the part of the plaintiffs and defendants. The 
case has now been fully heard on the part of the plaintiffs, 
and, as 1 think, a case has not been made iipon which this 
court, according to the principles on whicii it acts, would 
be justified in giving the plaintiffs relief. I think it would be 
useless now to entei* into tiie question of parties. To decide 
in favor of plaintiffs who fail on the merits, would be unnec- 
essary; to decide in favor of tlie defendants wouUl be to drive 
the plaintiffs to amend their bill in a case where there was 
no prospect of relief. 

I beg it therefore to be understood, that I give no opinion 
whatever on the question of parties. 

Another point there is, which it is not necessary to decide, 
and which I wish not in any manner to be considered as de- 
ciding. I mean the question whether the course which the 
directors thought proper to take as to tlie forfeiture of the 
shares, was such as ought to have been pursued, and whether 
their proceedings could not liave been set aside, if steps had 
been taken in time for that purpose. My judgment is en- 
tirely consistent with the supposition that all they did was 
Tinauthorized, and capable of being impeached successfully, 
if the plaintiffs had come in due time. The point which has 
struck me from the beginning (and upon which everything 
VOL. viu— 12 



178 Laches. 

tliat conld be said has been said by counsel) is the time at 
wiiich tlie suit has been instituted, havini,^ regard to the pe- 
culiar nature of the property, and the circumstances of tiie 
case. This is a mineral property, a property, therefore, of a 
mercantile nature, exposed to hazard, fluctuations, and con- 
tingencies of various kinds, requiring a large outlay, and pro- 
ducing, perhaps, a considerable amount of profit in one year, 
and losing it the next. It requires, and of all properties per- 
haps the most requires, the parties interested in it to be vigi- 
lant and active in asserting tlieir rights. This rule, frequently 
asserted by Lord Eldon, is consonant with reason and justice. 
Lord Eldon always acted upon it, and has been followed by 
subsequent judges of great knowledge, experience and eminence. 
Now, in the present case, conceding for the sake of argument 
that the shareholders could not be compelled to contribute 
beyond £50 a share, and did no wrong in declining to make 
advances beyond that sum, yet the result of all tiie circum- 
stances of this case appears to have been, that the mine could 
not be carried on without further outlay. 

Tiie plaintiffs objected to this further outlay, and then a 
considerable discussion ensued, which was substantially con- 
cluded in 1828. Some subsequent letters were written, but 
they did not, I think, materially vary that state of the case. 
The residence of the plaintifi's was occasionally in Jersey anil 
occasionally in England; but they never appear to have been 
absent from the Queen's dominions. In this state of thin-rs, 
the concern not improving, and the plaintiff and Miss Kent 
refusing to contribute to its necessities beyond the amount 
already stated, some parties are found who are willing to stem 
the difficulties and incur the hazard, and from this period, 
through several years down to 1835, they venture to carry on 
tiie concern. In 1830 affairs begin to look better, and the 
mine, whether legally or illegally, wisely or unwisely, is in 
that year new modeled, and the shareholders are turned into 
what are called scripholders. Matters go on in this maimer 
in 1836 and 1837, and it was not till ISfovember, 1837, when 
the result of tlie struggle had appeared, that, after a profit 
had been made by the unassisted efforts of those who still ad- 
here to the speculation, the plaintiff and Miss Kent applied 
for and claimed their shares. Negotiations were then set on 



Peendergast v. Tueton. 179 

foot, demands and refusals took place in the ordinary way, 
and it was not till September, 1838, tliat the bill was filed; 
but the demand may be taken as made in 1837, 

I was anxious, being impressed very much with Mr. Simp- 
kinson's opening of the case, as it related to the conduct 
of the directors, to have the time which so elapsed in some 
way accounted for; to have the chasm between the years 1828 
and 1837 in some manner filled up; to have the conduct of the 
plaintiffs during that time in some measure explained; to have 
the case placed in a position upon which the court could fasten 
itself, in order to give the plaintiifs that property which they 
might have been entitled to, had they presented themselves 
here in due time. But I am unable to find the means of do- 
ing this. Here is a mineral property, the subject of great 
uncertainty and fluctuation. After its character has been 
established with much difficulty — after a period of nine years, 
during which they rendered no assistance to the concern, a 
claim is brought forward by those who are now willing to 
share in its prosperity. It appears to me, that although this is 
a case to be decided in equity only, and at the hearing, and 
not on any interlocutory motion, it is impossible to saj' (con- 
sistently with ray views of what are the principles of this 
court) that the plaintiffs can be assisted. 

The way in which they state their ease, as to this part of it, 
is this: (His Honor then read a passage in the bill, see ante, 
page 172.) The claim, therefore, was not brought forward 
till November, 1837, and, if there is any allegation, there is 
no evidence, of there being any recent discovery of their right. 

It has been suggested that this has not been put in issue. 
I think it has, however, in various parts of the answer, in 
pointed allusions to the value and fluctuation of the property, 
and the conduct imputed to the plaintiffs in lying by during 
the existence of the fluctuation and the struggle. I find it, 
therefore, impossible to give that relief to the plaintiffs which 
they seek. 

His Honor then said, that, unless he heard any argument 
to the contrary, he should dismiss the bill without costs. No 
such argument being raised for the defendants, the bill was 
dismissed without costs accordingly, 

Dec. 8th. — His Honor, in the course of the argument in 
TvJloch V. EaHley, (1 Y. & C. 114), adverting to the forego- 



180 Laches. 

ing case, said that though liis opinion remained the same, he 
thouffht it not an unfit case to be submitted to the Lord Chan- 
cellor. 



Clegg v. Edmondson". 

(8 DeGex, M. & G. 787. High Court of Chanc-ry, 1857.) 

, Laches of excluded partners. Managing partners in a mining partner- 
ship at -will gave notice of dissolution to the rest, and intimated their 
intention after the dissolution to apply for anew lease for their own ex- 
clusive beneiifc. They did so, obtained a new lease, and carried on the 
colliery to a profit. The excluded partners continually asserted their 
right to share in the profits, but took no active steps to enforce it for 
nine years : Held, that they were precluded by laches from any relief. 

Special risk of mines. The rules as to laches and acquiescence govern- 
ing cases of direct trust and applying to property of an ordinary charac- 
ter, do not apply to constructive trusts affecting property like mines, 
subject to extraordinary contingencies and requiring large expenditures 
without any certainty of returns. 

' Faults. Considered as an inevitiible risk of coal mining. 

Clamor without contention. The continual assertion of 'a claim, without 
any act done to give it effect, will not keep alive a right which would 
otherwise be precluded. 

' Partner renewing lease for his exclusire benefit. Although it can not 
be laid down that in no case can a partner during the partnership con- 
tract for a new lease excluding associates, yet it is difficult, and especial- 
ly for a managing partner, to make out such a case; and the mere in- 
timation to his associates of his intention so to do is not sufficient to 
exclude their interest, although the partnership is dissoluble at will. 

Tliebill in this cause was filed for the purpose of fixing a 
trust for the benefit of the plaintiffs upon two leases of mines, 
da,ted respectively the 30th March, 1837, and the 11th Decem- 
ber, 1846, for relief against the dissolution of a partnership 
in the working of these mines, which subsisted up to the 30th 
September, 1846, and against the proceedings adopted by 
some of the defendants for the dissolution and winding up of 
that partnership, and for an account of the property of the 
partnership and of the profits of the mines as well before as 
since the time when the partnership was alleged to have been 
dissolved. 

>6M. R. 38. 

'PhiTlips v. Heeder, 18 S". J. Eq., 96; Post Paktner. 



ClEGG v. EpJIONDSOliT. 181 

The circumstances of the case were as follows: 
By a lease dated 30th September, 1805, some mines, called 
the Cliviger Copyhold Mines, were demised by the Duke and 
Dnchessof Bijceleugh to several persons for the term of twen- 
ty-one years from the 29th September, 1805. By another lease 
dated the 27th of December, 1810, some other mines called 
thfe Cliviger Freehold Mines, were demised by Mr. Towneley 
to several other persons for the term of twenty-one years, 
from the 20th ]S"Qvember, 1810. By an agreement dated the 
13th of February, 1818, John Green (hereinafter distin- 
guished by the description of " John Green of Lamb Row") 
Boger Green, William Beanland, and Henry Clegg, the then 
surviving lessees under the lease of 1805, and John Collinge, 
Joiin liaigh, William Edraondson, and Robert Orinerod, the 
lessees under the lease of 1810, agreed to becqme partners in 
working both the freehold and copyhold mines, and in the 
capital and stock, mHchinery and utensils employed therein 
for the then residue of thp terui of twenty-one years, granted 
by the lease of the freehold mines, CoUinge, Ilaigh, Edmond- 
son, and Ormerod each takipg one fifth, and the other four 
partners taking the reniaining fifth between them in equal 
shares. By this agreernent it was, amongst other tilings, 
agreed between all the parties, that in case any one or more 
of them should at or previous to the expiration of the terni in 
the freehpld mines obtain or procure any fresh or renewed 
ieage of all or any pf the mines, seams, aud beds of coals or 
coileries within the said townsliip of Cliviger, such lease and 
all interest, benefit and advantage to arise or accrue therefrom 
should belong to and be enjoyed by all and every the parties 
thereto, their respective executors, administrators and assigns, 
in such shares and proportions as were thereinbefore expressed. 
And it was further agreed between all the parties, that no 
fresh partner or partners should be admitted or received into 
the copartnership or undertaking without the concurrence 
in writing o'f all the existing pai'tners and the executors or 
administrators of every deceased partner, in case any such 
there should be (other than and except only the person or per- 
sons who mnght purchase the share or shares of any of the 
copartners in pursuanceof the proviso thereinafter contained, 
and then only in respect of such share or shares). Provided 
always, and it was thereby further agreed between all tlie 



182 Laches. 

parties, tliat in case one or more of them, their or his execu- 
tors, administrators, or assigns, should at any time thereafter 
during the said term of fifteen years, become bankrupt or 
insolvent, or should propose to sell their or his share or inter- 
est in the said mines and colleries and copartnership busi- 
ness or undertaking, then and in such case it should be law- 
ful for the other partner or partners, or any of them, to pur- 
chase the share or shares of the party or parties so becoming 
bankrupt or insolvent, or proposing to sell, of and in the said 
mines and colleries and copartnersliip undertaking. 

On the 30th of September, 1825, a reversionary lease of 
the Cliviger Copyhold Mines, for the term of twenty-one 
years from the 29th of September, 1825, was granted by the 
Dacliess of Buccleugh to Mr. Towneley, and by an agreement 
dated the 16th of January, 1829, Mr. Townfeley agreed to 
assign this reversionary lease to John Haigh, John Collinge, 
Henry Clegg, and the executors of William Edmondson, be- 
ing some of the persons who were then partners in working 
the mines under the agreement of the 13th of February, 1818. 

The agreement of the 16th of January, 1829, contained a 
stipulation on the part of Mr. Towneley, that if at the end of 
the lease of the Cliviger Freehold Mines (the lease of the 27th 
December, 1810), he and the lessees should not agree for the 
further lease thereof, he would not work the freehold collieries 
and coal mines nor let the same to any other person or persons 
for that purpose, until after the expiration of the lease of the 
30th September, 1825, but would permit the said collieries 
and coal mines to remain dormant and unoccupied for the 
benefit of the said lessees until they should have finished the 
term in the copyhold mines. By virtue of this agreement to 
assign, the copyhold mines continued to be worked by the 
partnership till 1846. The Cliviger Freehold Mines, after 
the expiration of the lease of 1810, continued to be worked 
by tlie partners, the lessor allowing them to hold over. Bv 
a lease dated the 30th of March, 1837, being one of the leases 
of which the plaiiitifi's claimed the benefit, Mr. Towneley de- 
mised the mines under other lands in Cliviger to James Col- 
linge and James Haigh for tlie term of 21 years frOm the 30th 
of March, 1837. James Collinge was not an original partner 
under the agreement of February, 1818, but had become a 
partner under the will of his father, who was a party to that 



Clegg V. Edmonbson. 183 

agreement. James Haigh was not, at the date of tin's lease, 
interested in the freehold and copyhold niines, but afterward 
became interested in them. The mines demised by this lease 
formed a distinct colliery, called the Bankwell colliery, and 
these mines were worked by the two lessees to whom ihcy were 
demised down to some time in the year 1841, at which time 
the two lessees ceased to work them, it being objected by the 
parties interested under the agreement of the 13th of February, 
1818, that the mines were reached by the above mentioned 
stipulation on the partof Mr. Towneley, contained in the agree- 
ment of the 16th of January, 1829. In consequence of this 
objection these mines were not again worked until the part- 
nership created by the agreement of 13th February, 1818, was 
assumed to have been dissolved, and the profits which had 
been derived from working them down to 1841 were brought 
into the accounts which ware made up upon the occasion 
of that alleged dissolution. 

In tiie year 1846, ail the lessees nnder the leases of the 
30th of September, 1805, and tlie 27th December, 1810, who 
had been parties to the agreement of the 13th of February, 
1818, were dead, except John Haigh. There had been various 
sales and devolutions of the shares held under that agree- 
ment, and a large number of persons had become interested 
under it The devolution of interests, so far as it need be 
stated, was as follows : John Green of Lamb Row, one of the 
parties to the agreement, and who was entitled under it to 
one twentieth share, died in the year 1827, having made his 
will, dated the 30th of June, 1827, and thereby after stating 
that he had a share in certain collieries at Cliviger, Altliam, 
and other places, he declared that his son John Green of 
Accrington should have £50 a year from the produce of the said 
collieries for being the bookkeeper, likewise for the care and 
management of them, and that whatsoever other property arose 
or accrued from the said collieries, besides paying him £50 
yearly, the overplus money should be equally divided amongst 
his son John, his daughters Sally, Jane, Alice, and Margaret, 
to them and their heirs as tenants in common during the 
term of the lease granted to him; and he appointed John 
Green of Accrington and several other persons to be his 
executors. The plaintiff, Jane Clegg, was the dangiiter Jane 
mentioned in his will, and thus became interested in the 



184 Laches. 

share of John Green of Lamb Eow. John Green of Accrina:- 
ton purchased some small share belonging to another person, 
and it was alleged by the bill, that he made that purcliase 
with the profits of the sliare of John Green of Lamb Eow. 
He died in the year 184ii, having by his will appointed the 
f'eleiidant James Green and two otiier defendants named 
Dewhnrst and Chaffer, to be his executors. 

Henry Clegg, another of the parties to the agreement of 
the 13th of February, 1818, and who was entitled under it to 
aiiotlier one twentieth sliare, died in the year 1836, intestate, 
and the plaintiff, Jane Clegg, was his widow and personal 
representative, and thus interested in his share, in which the 
other plaintiffs also claimed to be interested as some of his 
next of kin. 

John liaigh, anotlier of the parties to the agreement, and 
w]>o was entitled to one fifth share under it, was living in 
1846, but afterward died and was represented in the suit by' 
the defendant, James Haigh. 

William Edmonson, another of the parties to the agree- 
ment, and who was also entitled to one fifth share nnder it, 
died in the year 1828, and his sliare passed to his executors, 
Bernard Edmonson and Jolin Barrowelongh. 

John Collinge, also a party to the agreement, and also enti- 
tled to one fifth share under it, died in the year 1832, havin,ur 
made bis will, dated 4th of May, 1831, whereby he bequeathed 
to his sons, James Collinge and Giles Collinge, both since 
deceased, all his leasehold estate and interest in his collieries 
within the township of Cliviger, to hold to them, their execu- 
tors, administrators and assigns, as tenants in common, and 
appointed his sons, John Collinge, James Collinge and Giles 
Collinge the executors of his will. Giles Collinge, who was 
entitled to a moiety of the share of the original John Col- 
linge, died in 1836, having by his will appointed his brother, 
James Collinge, and Eelix Leach to be his executors. 

The conduct of the partnership business appeared, from a 
very early period, to have been intrusted to some of the part- 
ners as managers, and for some time previous to and in the 
year 1846 the managing partners were John Haigh, James 
Collinge, Bernard Edmondson, John Barrowclough and James 
Green. James Green was placed in the management as rep- 



Clegg v. Edmondson. 185 

resenting the interests (amongst other persons) of the persons 
wlio were entitled to the shares of John Green of Lamb Row, 
and Henry Clegg. 

In tlie year 1846, when the lease of tlie 30th of September, 
1825, whieli would expire on the 29th of September, 1846, 
was approaching its termination, tiie five managing partners 
above named determined to dissolve the partnership for work- 
ing the mines, and if they could succeed in doing so, to ob- 
tain for tlieinselves a lease of the mines to the exclusion of 
the other partners. From tlie evidence in the cause it ap- 
peared that this determination on the part of the managing 
partners had become known to Robert Clegg (who had at that 
time become interested in Henry Clegg's share and assumed 
to represent the interest of the other members of the Olegg 
family), at least as early as the month of June, 1846. He ob- 
jected to the managing partners obtaining the lease for them- 
selves exclusively, and appeared to have proposed that lie 
should be admitted to the benefit of the lease on behalf of the 
Olegg family, but that others of the partners should be ex- 
cluded. This, however, was not acceded to by the managing 
partners, it being considered that from the termination of the 
lease of the 27th of December, 1810, the partnership had sub- 
sisted as a partnership at will only. The managing partners, 
in the month of July, 1846, served on the other partners a 
notice for dissolving the partnership on the SOth of Septem- 
ber, 1846. 

In the meantime Mr. Towneley had been in treaty with the 
lessors of the copyhold nunes for a renewed lease to him of 
tiie copyhold mines, and on the 4th of August, 1846, a re- 
newed lease of the copyhold mines was agreed to be granted 
to him by the Duke of Buccleugh, for a further term of twen- 
ty-one years. The five managing partners had also in the 
meantime been in treaty with Mr. Towneley for a new lease to 
be granted to them of both the copyhold and the freehold m ines, 
including the Bankwell colliery, and on the 12th of August, 
1846, they agreed for a new lease of all those mines for a fur- 
ther term of twenty-one years. In September, 1846, they is- 
sued handbills and published advertisements for the sale of 
the stock at the several collieries on the 29th of Se]itember, 
1846, and they sent copies of the handbills to the other part- 



186 Laches. 

ners, with the following notices indorsed thereon: "We, the 
undersigned, John Haigh, James Colli nge, Bernard Edinond- 
son, John Barrowclough and James Green, being five of 
the partners or persons intefrested in the stock in trade de- 
scribed in and hy the within advertisement, and having nuide 
arrangements with Peregrine Edward Towneley, Esq., the 
landlord of the premises, for granting of a fresh lease to us of 
the same or otiier premises adjoining or near thereto upon and 
after the expiration of the present lease on the 29th day of 
September, instant, hereby give yon notice that we do intend, 
either by ourselves or by some. other proper person whom we 
siiall appoint as our agent for tliat purpose, to bid at the sale 
by public auction to be held at Cliviger, on the said 29th day 
of September, instant, pursuant to the within advertisemen?, 
for the purchase of certain parts of the stock in trade and ef- 
fects described and comprised in the within advertisement- 
And we hereby further give you notice, that it will be lawful 
and competent for you and all other persons whomsoever, also 
to bid at the same sale for all or any part of the said stock in 
trade and effects, subject to such conditions of sale as will be 
produced at the said sale." 

The conditions of sale referred to in the above notice were, 
as it appeared, prepared by one of the managing partners. The 
stock at the collieries was accordingly put up to sale by auc- 
tion on 29th September, 1846, and the principal part of it 
was purchased at the auction by or on behalf of the manai^-- 
ing partners. The managing partners then proceeded to have 
the accounts of the partnership made up and a release pre- 
pared, and on the 7th of October, 1846, their solicitors sent 
to the plaintiff, Jane Clegg, the following letter: "Madam: 
— We are instructed to inform you that the partnership in 
the Cliviger collieries expired on the 30th of September last, 
and that the stock and effects of the said partnership have 
been sold and converted into money; and also that the ac- 
counts of the said copartnership are now being made out by 
an experienced professional accountant, and will be ready for 
inspection and examination on and after the 15th day of Oc- 
tober instant. And we are also to inform you that the 
m!ina,nng partners in the said late copartnership will attend 
at the Swan Inn, at Burnley, on the said 15th day of Octo- 



Clegu v. Edmondson. 187 

ber, at ten o'clock in the forenoon, for the purpose of pro- 
ducing the said accounts for your inspection and examination, 
and they will be prepared then and there to pay to you your 
due proportion of tlie said partnersliip estate and eiiects upon 
your executing a proper release for the same." 

Neither the plaintiff, Jane Clegg, nor any of the other 
plaintiffs, in any manner adopted or acted upon the accounts 
or executed the release, and consequently what upon the ac- 
counts was coming to the estate of Henry Clegg was paid 
into a bank to answer the claiim of that estate, and what was 
coming in respect of the share of John Green of Lamb Kow, 
was left in the hands of James Green. The managing part- 
ners and some of the other partners took what was coming to 
them upon the accounts, and executed the release. 

On the 11th of December, 1846, the new lease to the man- 
aging partners was executed, being a lease for a term of 
twenty-one years from the 29tli of September, 1846. From 
the termination of the partnership tlie mines were worked by 
the managing partners upon the terms of the new lease, and 
were so woi'ked without interruotion until the filins: of this 
bill in the year 1855. 

There were other matters of account between the plaintiffs 
and the defendants, James Green, Dewhurst and Chaffer, and 
in the year 1847 these matters were settled and a release ex- 
ecuted by the plaintiffs to those defendants. By this release 
the plaintiffs expressly reserved their claims to a continuing 
right of participation in the effects of the partnership, in- 
cluding the renewed lease. 

There were some other mines at Altham, distinct from and 
of greater value than the Ciiviger mines. The estates of 
Henry Clegg and of John Green of Lamb Row, were entitled 
to shares in the Altham colliery. The managing partners 
of these mines, amongst whom was one of the defendants 
sought to be made liable in this suit, had, in the year 1846, 
obtained a new lease of those mines, which they insisted upon 
holding for their own benefit. The plaintiff, Jane Clegg, and 
the defendants, James Green, Dewhurst and Chaffer, stood in 
the same rela,tion to each other with regard to the Altham 
colliery as with regard to the Ciiviger colliery, except that in 
the case of the Altham colliery those defendants were among 



188 Lachis. 

the persons sought to be excluded from the benefit of the re- 
newed lease. In the year 1849, the plaintiff, Jane Clegg, and 
some otlier of the excluded parties, instituted a suit of Clcgg v. 
Fishwiolc, for the purpose of subjecting the new lease of the 
Altham mines to a trust for their benefit, and in December, 
1852, they obtained a decree in tlieir favor in that suit. See 1 
Mac. & G. 29i. In the ye>ir 1848, a suit of Collinge v. Coin 
linge was instituted by the persons claiming under the will 
of Giles Collinjje, against James Collinge and Felix Leach, tlie 
executors of Giles Collinge, in which a decree was made ia 
the year 1855, establishing the rights of the parties interested 
under tiie will of Giles Collinge to a share in the colliery car- 
ried on under the lease of the 11th December, 1846. This de- 
cree was appealed from, and the appeal was compromised 
by a consent order dated the 10th of July, 1855, upon terms 
very beneficial to the parties interested in the estate of Giles 
Collinge. 

The plaintiffs, throughout the whole period which elapsed 
from the renewal in 1846 up to the institution of this suit, 
insisted on their right to participate in tlie benefit of the re- 
newed lease, and it was not alleged that any of the defendants 
had ever been led to suppose, or had supposed, that the plaint- 
iffs had abandoned their claim. No step, liowever, was taken 
l)y the plaintiffs to enforce their rights until this bill was filed 
in the month of September, 1855. The plaintiffs alleged that 
they had abstained from taking proceedings until the suits of 
Clegg v. Fishwiok, and Collinge v. Collinge had been dis- 
posed of, inasmuch as they considered that the result of those 
suits would decide the question raised in the present suit. 
It was established in the cause that the mine, from 1846, had 
been uniformly profitable. 

The case first came before the lords justices, on an appeal 
from an order of the master of tlie rolls, allowing exceptions 
to the answer of the defendants, who liad declined to set out 
the accounts of the business. Tiiat appeal was not disposed 
of, but an arrangement was come to that the cause should 
be heard by tlieir lordships on an early day. 

Mr. RoijNBELL Palmee and Mr. Little, for the plaintiffs.— 
Apart from the question of delay, our right to participate iu 



Clegg v. Edmondson. 189 

tlie benefit of the renewed lease is clear: Lewin on Trusts, 
page 170; (2d ed.) Tudor's Leiad. Cas. in Equity, Vol. 1, page 
35; Rahestraw v. Bre'dier^ 2 Peere Wms. 511; Rawe \. Chi- 
chester, Ainbl. 715; Fttzgihlon V. Smnlan, 1 Dow, 269; 
Featherstonhaiighv. Fenwich, 17 Ves. 298; Cdoh v. VoUing- 
ridge, Jac. 607; Wedderhurn v. Wedderhurn, 2 Keen, 722; 
4 M. & C. 4] ; Giltett v. Pepparcorne, 3. Beav. 7S; BUsset v. 
Daniel, 10 Hare, 493, 528. The notice of dissqlntion makes 
no difference. An actual dissolntion would not have done so, 
for the new lease is attributable to the partnership assets, 
which were the property of all, and the new lease must there- 
fore inure to benefit of all: Cooh v. Collingfidge, Jac. 607, 
619; Brown, v. De Tastet, lb. 284. That a new lessee was 
introduced makes no difference: Edwards v. Lewis, 3 Atlr. 
5158; nor does the circumstance of the lease of 1846 containing 
a proviso against alienation. The same circumstance occurred 
Kn Clegg v. Fishwick, 1 Mac. & Gor. 294. Then as to delay, 
the case is wholly difiTerent from Norway v. Rowe, 19 Ves. 
144, Senhouse v. Christian, lb. 157, cited, and Prendergast v. 
Tm-ton, 1 Y. & 0. C. 0. 98, afiirmed 13 L. J. (N. S.) Ch. 28S, 
wliere the property was speculative. Here the business has 
been uniformly profitable from its commencement. More- 
over those cases proceeded on the ground that a person is not 
at liberty to lie by and let other persons incur the risk alone 
witliout oifering to share it, and then come in for a share of 
the benefit. Here we continually insisted on our riglit; we 
were willing to take our share of the risk, but the defendants 
would not let us. Tliat they alone incurred the risk is their 
fault, not ours, and tliey can not use it as an argument against 
ns. We told them that we should wait until the case of tlie 
Althara mines was discussed, which involved the same prin- 
ciple. It was not decided till December, 1852, and it was 
reasonable that we should wait till then. In Brown v. De 
Tastet, Jac. 284, the delay was excused on a ground not so 
strong as ours; and Wedderbxirn v. Wedderhurn, 4 M. & C. 
41, aflirms the principle. In the former case there was a 
delay of six years; in the latter, twenty. Hart v. Cla/rhe, 6 
De G., M. & G. 232, aflBrmed 6 H. L. Gas. 633, supports our 
case, on the ground that there was not any lying by, but a 
constant assertion of our right. 



190 Laches. 

Mr. Selwvn and Mr. Eoxburgii for Edmondson, Barrow- 
clongh, and James Ilaigh.— We admit tliat a riglit to an ac- 
count of the dealings and property of the old partnership 
once existed, but we say that it is barred by lapse of 
time. As to the renewed lease, we say that the plaintiffs 
never had any right to it, and that if they had they have lost 
it by delay. This was a partnership at will, which could be 
dissolved at any time by any partner, and we contend that it 
was eff'ectually dissolved as against the plain titfs in 1846. It 
is alleged against us that before 1846 we executed works 
which could not pay unless we obtained a new lease, and that 
we left large masses of coal in order that the new ])ai'tnership 
might have unfair facilities in working. Now Mr. Towneley, 
so far as regards the copyhold mines, was only a termor, 
whose term expired in 1846, the freehold being in the Duke 
of Buccleugh; and it is absurd to suppose that we expended 
capital in the expectation of obtaining a new lease from the 
Duke of Buccleugh, with whom we had no connection. We 
had a right to dissolve the partnership in 1846, and to discharge 
for our protection all the liabilities wliich the partnership was 
under to Mr. Towneley. Notice was given to the plaintiK's 
of wluit we intended to do, and they had the same opportu- 
nities as W3. The argument of the plaintiffs proceeds on a 
series of fallacies'. They say that this case is on all fours 
with Feather stonhaugh v. FenwicJc, 17 Yes. 298, and the 
other cases of that class; but in those cases there was unfair 
dealing, and there is no rule to prevent a partner from dis- 
solving a partnership and taking a fresh lease to himself if 
his mode of proceeding is fair. 

[The Lord Justice Knight Bruce. — Does not the applica- 
tion of the rule depend upon this — who were entitled to the 
interests the existence of which gave facilities for obtaining 
a new lease?] 

[The Lord Justice Turner.— Do you say that a trustee 
could renew for his own benefit?] 

We admit that a trustee could not renew for his own bene- 
fit, but here there was no trust. The parties were similarly 
interested, all was open and above board, and the plaintiff's 
might have applied for the renewed lease themselves. In 
most cases it can not be known what the result of an applica- 



Clegg v. Edmondsois-. • 191 

tion by the party who complains of excUision would have 
been. Here the evidence shows plainly that the landlord 
would not have granted a renewal to the plaintiiFs. We had 
told the plaintiffs long before the renewal that we would 
rather abandon the mine than goon in partnership with them. 
Under these circumstances, we being unwilling to continue 
the partnership and the landlord being willing to grant a 
new lease to us but not to them, and they having notice of 
our intention to renew for our own benefit, are we, because 
we took a renewal, to be treated as having entered on a fresh 
tern; of partnership? 

[The Lord Justice Tijknee. — Can a partner renew for his 
own sole benefit before the expiration of the term which was 
partnership property?] 

We say that he nuiy, in circumstances like those of the 
present case. If the plaintiffs meant to claim the benefit of 
the renewal, they ought to have given a counter-notice that 
they should insist upon a share in the benefit of the,renewal. 
If we had actually agreed at the time to give tlie plaintiffs 
what they are now asking, they could not have had it now. 
It would have been a case of specific performance, and they 
would have been barred bydehiy. As to the continual claim 
it makes against the plaintiffs, it shows that they were fully 
aware of their rights, and knew that their title was disputed; 
yet they took no active step: lleaply v. Hill, 2 S. & S. 29; 
Ghesterman v. Mann, 9 Hare, 206, 214. Tiie delay to 1852 
is not sufficiently accounted for, since we never gave the 
plaintiffs to understand "that we would be bound by the result 
of Clegg v. Fishvnck, and the delay from 1852 to 1855 is not ac- 
counted for at all. In all the cases relied upon by tiie plaint- 
iffs, there was mala fides. In Featherstonhauyh v. Fenwich, 
17 Yes. 299, 300, stress is laid on the circumstance that the 
lease was applied for without notice to the other parties. In 
Blissett V. Daniel, 10 Hare, 493, there was an unfair settle- 
ment of accounts. Oases as to trustees and executors have 
no real bearing on the question; this disposes of Edwards v. 
Lewis, 3 Atk. 538, and Griffin v. Griffin, 1 Sch. & Lef 352. 
Supposing, however, that this point is decided against us, the 
doctrine of Prendergast v. Turton, 1 Y. & C. 0. 0. 98, S. C. 
on appeal, 13 L. J. (N. S.) Ch. 268, applies. The decision 



192 Laches. 

in that case was founded on the risks inseparable from all 
inininjy property, and time I'uns from the commencement of 
expenditure. The claimants knew that we were incurring 
great expenses and risks; that there was a profit does not pre- 
vent time from running. They knew nothing about that, and 
if they had known of it, still a loss might have occurred any 
day, which would more than absorb all the previous profits, 
and we should have had no right to call npon tliem for contri- 
bution. The rule is, that a person who means to claim an 
interest in these hazardous undertakings must take to them 
for better or worse within a reasonable time: Hart v. Clarke, 
6 DeG., M. & G-. 232. 6 H. L. Gas. 633, was taken out of the 
application of the rule by the fact tliat the plaintiff' liad a 
legal estate. Here the bill was not filed for eight years ai'ter 
the alleged right arose, and not until more than two years 
after the decision in Clegg v. Fishwick. 

Mr. Caiens and Mr. GruTORD, for James Grcdn and other 
defendants. — The right of partners to the benelitof a renewed 
lease must depend upon circumstances. Here the landlord 
was equally accessible to all, the negotiations lor a new lease 
began with him, and he wished to get rid of a number of use- 
less lessees and have only a small ))ody to look to. The plaint- 
iffs were aware at the time of wliat was going on, and h.ad 
distinct notice that those who were managing the mine in- 
tended to acquire a new lease for themselves, not for them- 
selves and the plaintiffs. James Green can not be regarded as 
a trustee even by implication. We contend, then, that 
Featherstonhaiigh, v. Fenvnck does not apply, and that, even 
if a bill had been filed within a reasonable time after the 
renewal, it must have failed. Then alter the renewal the 
plaintiffs lie by to see how the concern will turn out. There 
is no pretense that the defendants practiced any concealment, 
and every argument which the plaintiffs use in support of 
their original right tends to make their case worse on the 
point of delay. Up to the time of the filing of the bill in 
Clegg V. iA",vAii)ic7c, nothing was done beyond making parol 
claims. It would be unjust to attach any weight to such 
claims (Attorney- General v. Sheffield Gas Consumer'' a Coin- 
pany, 3 De G., M. & G. 304), as it would be allowing the 
claimant to keep up a one-sided state of things; for such a 



Clegg v. EDMONDSoisr. 193 

claim would not entitle the other party to call on him for con- 
tribution. Time must ruii from the time when the parties 
were first aware of their rights. In the case of the Altham 
mines it could not begin to run till 1849; here in 1S4(). 
Moreover, the renewal in the former case was clandestine; 
here it was not. The pendency of that suit is not an excuse 
for delay; we had not agreed to be Ijound by tlie result of it. 
The decree, if any decree is made at all, should give an ac- 
count only from the filing of the bill. A receiver and man- 
ager to carry on the mines ought not to be appointed, for we 
decline partnership with the plaintiffs; and a receiver should 
only be appointed with a view to a sale: Roberts v. Eher- 
hardt, Kay, 14S ; Orawshay y. Mavle, 1 Swanst. 495, 523. If a 
bill had been filed in 1846, all that the court could have done 
for the plaintiffs would have been to give them a decree for 
dissolution with a sale,' and they ought not to have any more 
now. To give them more would be to give them the benefit 
of our labor and of the risk' which we have run by taking a 
new lease with burfensome covenants: Townshend v. War- 
ren, 1 Jones & Lat. 221, n.; Ilardinan v. Johnson, 3 Mor. 
347; Randall v. Russell, 3 Mer. 190; Aitcheson v. Fair, 3 
Dru. & War. 524. 

Mr. Elmslet and Mr. G. Lake Kussell, for the executor 
of James Collinge. — The plaintiffs never had any title except 
in conscience. It is a constructive trust, and their title has 
no analogy to a legal title: Bond v. Hopkins, 1 Sch. & Lef 
413; Smith v. Clay, 3 B. C. 0. 640. Such a right can not 
be k^ept alive by mere assertion of it. Acquiescence is not 
needed to bar it; mere delay will have that effect, as in cases 
of specific performance; and here, not to dwell on other peri- 
ods, there is delay from 1852 to 1855 wholly unaccounted for. 

Mr. Hamilton HuMrnEETS and Mr. Pole appeared for 
other defendants in the same interest. 

Mr. Palmee, in reply. — In suits in equity time has to be 
considered in two different ways: as to its effect in barring a 
right to property, and as to its effect in barring an equity en- 
forceable against property. The defendants confound these two 

VOL. VIIl— 13 



194 Laches. 

operations. Here we ckiin a proprietary right. There "is 
the identical plant, and the mine, which, though not identi- 
cally the same, is the fruit of the property in which we had a 
sliare. This proprietary right, if legal, would not have been 
barred till the expiration of twenty years, and, by analogy, a 
less period will not have that effect in equity. To shorten 
this period, acquiescence amounting to an assent to the re- 
tainer of the property by others must be establislied; conduct 
whicii leads other parties to believe and to act on the belief 
that the title will not be enforced; and this makes it a breach 
of faith afterward to enforce it: Hawker v. Ilallewell, 2 Jur. 
(N. S.) .537, 794; Prendergast v. Turton, 1 Y. & C. 0. C. 1^8; 
13 L. J. (K S.), Ch. 268; IlaH v. Clarice, 6 De G., M. & G. 
232; 6 H. L. Gas. 633, all recognize this as the principle. 
Here there was notliing approaching to acquiescence. Our 
delay did not induce the defendants to alter their position. 
Whatever they may now say, it is absurd to suppose that our 
claiming to be partners in ]846 would have induced them to 
abandon the concern; it was too profitable for them to take 
sucli a step. The undertaking was not an "adventure," for 
the mine had been proved and was a known profitable con- 
cern. The defendants acted with full notice of our claim, 
and were in no way misled. We have left nothing undone 
which we should have had to do if we had been acknowledged 
all along as partnei-s, no contribution to expenses having been 
required. If tlie defendants intended to insist on time as a 
bar, they ought to have given us notice to enforce our claim 
within a reasonable time. They have not done so, and having 
been aware all along that we insisted on our right, they can 
not insist upon so short a period as a bar: Penny v. Pick- 
wick, 16 J3eav. 246. 

Judgment reversed. 
March 17. 
The Lord Justice Turner, after stating the facts to the 
effect of the above statement, proceeded as follows: It will 
be convenient, first to consider the case as it stands upon 
the lease of 1846. The onus of this case rests, as I think, 
upon tlie defendants, the managing partners. Having stood 
in a confidential relation, both as partners and as manao-ers, 
the consequences which, according to the ordinary rules of this 



Clegg v. Edmondson. 195 

court, flow from that relation, mnst attach upon them, unless 
they can by some means exonerate themselves from those 
consequences. The case on their part was put upon two 
grounds: Ist, that the plaintiffs never were entitled to the 
benefit of the new lease; and, 2dly, that if the plaintiffs were 
at any time entitled to the benefit of that lease, they have lost 
that right by delay and acquiescence. 

The defendants' argument on the first point was rested on 
several grounds: that the partnership which had subsisted to 
the 29th of September, 1846, was a partnership at will only; 
tliat the landlord would not have renewed to all the partners; 
and that all the partners knew of the intention on the part 
of these defendants to apply for the new lease, and had the 
same means of applying to the landlord on their own belialf 
as these defendants themselves had.. Tlie argument founded 
on tiie partnership being dissoluble at will, is not, I tliink, 
entitled to any consideration. The principle on whicli the 
court proceeds in cases of this nature is, the confidence whicli 
subsists between partners, and that confidence exists whetlier 
the partnership subsists for a limited time or is dissoluble at 
will. I attach as little weight to the argument founded on 
tJie landlord's objections. Tliat argument is, I think, dis- 
posed of by Lord Eldon's judgment in Fitzgihhon v. Scan- 
Ian, 1 Dow, 269. More consideration is, I think, due to the 
argument founded on the knowledge by all parties of the in- 
tention of these defendants to apply for the lease, and the 
means which the other parties had of applying for it them- 
selves. I am not prepared to say that in no case can a part- 
ner, during the continuance of the partnership, contract for a 
new lease to be granted to himself, of property which is in 
lease to the partnership, without the new lease being held 
to be subject to trusts for the benefit of the partnership. The 
authorities, I think, do not warrant that position; but this, I 
think, is plain upon all the authorities: that it is very diffi- 
cult for any partner to secure to himself, to the exclusion of 
his copartners, the benefit of a lease so contracted for; and 
the difficulty is certainly greater where the contracting part- 
ners are, as in this instance they were, the managing part- 
ners. In order to give validity to such a transaction, all the 
parties, ought to be placed upon an equal footing, and it is 



196 , Laches. 

difficult to see how this is to be aecoinplislicd in the case of 
managing partners. It is not, however, necessary to decide 
what would be held sufficient to support such a transaction in 
the case of managing partners. It is sufficient for me to state 
that the mere communication of the intention on the part of 
the managing partners to apply for the new lease for their 
own benefit could not, in my opinion, be sufficient for the 
purpose. I do not find that the defendants, the managing 
partners in this case, made any further communication, and I 
am of opinion, therefore, that upon the first point the defend- 
ants' case can not be supported. 

We have to consider, then, tlie question of delay and acqui- 
escence, and in determining the effect due to these considera- 
tions, we must take in to account both the nature of the right 
which is claimed and of the property in which it is claimed. 
"Wehave to deal, in this case, not with a direct but with a con- 
structive trust, not with property subject merely to tlie ordi- 
nary contingencies by which all property is affected, and main- 
tained at a moderate and scarcely varying expense, but with 
mining property, which is subject to extraordinary contingen- 
cies, and which can be rendered productive only by a laro-e 
and uncertain outlay. The authorities, I think, fully war- 
rant us in saying that the rules which govern cases of direct 
trust, and apply to property of an ordinary character, are not 
equally applicable to cases of constructive trust, and to prop- 
erty of the description which we have here to deal with. It 
was said indeed, on the part of the plaintiffs, that these 
mines had been tried, and that there was no uncertain- 
ty attaching to the value of them; but I do not find 
from the evidence that they had been explored to any 
such extent as could render their value certain, and, on the 
contrary, the evidence sliows that faults were met with in the 
workings under the new lease, and the expense of the work- 
ings would, of course, depend upon the nature and extent of 
these faults. What expenditure they would occasion, or to 
what extent they would atfect the value of the mines, could 
not, of course, bo foreseen. If they had led to ruinous expend- 
iture, and had rendered the mines unproductive, nothing 
would, of course, have been heard of this claim of the plainC 
ifis, and there would have been no claim against them. Are 



Clegg v. Edmondson. 197 

they then in justice entitled to reap the benefit when they 
conld not have been made subject to the loss? It is said for 
the plaintiffs that the expenditure has been moi'e than met by 
the profits, but this does not seem to me to vary the case, for 
the profits undoubtedly belonged wholly to the lessees, unless 
the plaintiffs were entitled to share in them,^ and to assume 
that the lessees were not expending their own money would be 
to assume that the plaintiffs were so entitled, which is the 
very question we have to decide. Now what has been thecon- 
duct of these plaintiffs? Before the termination of the old 
partnership they knew that the defendants intended to apply 
for the new lease, if not that it had been actually agreed to be 
granted. They took no steps to prevent the lease being grant- 
ed. From the period of the termination of the old partner- 
ship they have known that the defendants have been working 
these mines and incurring expenditure upon them, and until 
the filing of this bill in the month of September, 1855, they 
have not taken a single active step in prosecution of the 
claim which they have now set up. 

This conduct on tlieir part is, I think, suSicient to shift the 
onus of the case auH throw it upon them. Then what is their 
justification? There is an attempt to show something like 
an agreement that the claim to an interest in these mines 
should abide the result of the claim to an interest in the 
Altliam mines, but I am satisfied upon the evidence that 
there was no such agreement. Then the claim to the interest 
in the Altliara mines, and the pendency of the suit respecting 
it and of the suit of CoUinge v. Collinge, were relied on with- 
out reference to tlie alleged agreement. But the suit as to 
the Altham mines was not instituted until the year 1849, and 
upon tliis footing, tiierefore, a period of two years is left 
wholly unaccounted for. Besides, both that suit and the 
suit of Collinge v. Collinge were instituted not long after the 
cause of suit arose, the Altham suit having been instituted in 
1849, almost immediately upon the termination of the old 
lease of those mines, and the suit of Collinge v. Collinge hav- 
ing been instituted in the year 1848, and what might be done 
in suits commenced at more early periods could furnish no 
rule for what would be right to be done in a suit like the 
present instituted after the lapse of so many years. 



198 Laches. 

What tliG plaintiffs, however, mainly relied npon, was tlie 
continual claim on tlieir part, and no doubt they liave not 
ceased to assert their claim, but lean not agree to a doctrine 
so dangerous as that the mere assertion of a claim, unaccom- 
panied by any act to give effect to it, can avail to keep alive 
a right which would otherwise be precluded. I am not aware 
that the mere assertion of a right has ever been held to avail 
against tlie Statutes of Limitations, and if, therefore, we look 
to tlie analogy of tliose statutes, that analogy does not seem 
to furnish any ground of excuse on the part of the plaintiffs. 
Much less, I think, can such an excuse be entertained by a 
court of equity, which, in cases of this nature, has gone be- 
yond the analogy of tlie statutes. In my opinion, therefore, 
tlie defendants are entitled to our judgment in their favor 
upon this second point of their defense. 

It was attempted on the part of the plaintiffs to derive some 
aid to their case as to the lease of 1846, from the fact of the 
lease of the Bankwell colliery not having expired when the 
lease of 1846 was granted, and the plaintiffs also contended 
that in any event they were entitled to fix a trust upon the 
Bankwell lease; but it is clear npon the evidence that tlio 
lease of the Bankwell colliery was not originally taken for 
the benefit of the partnership, and that that colliery was not 
worked after 1841, and that it ceased to be worked at that 
time in consequence of objections raised by the partners in 
the concern in which the plaintiffs were interested, and the 
lease, as I understand the case, is not now subsisting, but was 
put an end to by the arrangement of 1846, and under these 
circumstances 1 think the plaintiffs can derive no aid to their 
case from the subsistence of that lease, and are entitled to no 
relief in respect of it. The reasons which have been assigned 
against fixing a trust upon the lease of 1846 apply with 
greater force against any equity which the plaintiffs might 
have had to set up as to the lease of this colliery. 

A case is also made by this bill as to the sale of the plant; 
but I think the same reasons which govern our decision as to 
the other parts of the case apply to tiiis part of the case also. 
The plaintiffs liad notice of this sale, and that the manawinw 
partners intended to bid. They might if they had tliouglit 
fit have attended the sale and have bid for tliemselves and 



Clegg v. Edmondson. 199 

they were invited to do so. Tliey might have impeached 
the sale, as they might have impeached the lease, at a more 
early period, bnt at this distance of time 1 think they can not 
be permitted to do so. If they desire an acconnt of the pro- 
ceeds of the sale and of the profits of the mines from tiie 
date of the last settlement on their behalf, I think tlioy are 
entitled to it, reserving the costs, bnt in other respects I think 
tliis bill must be dismissed, though certainly without costs. , 

The Lord Justice Knight Bruce. 

In the observations that I propose to make on this cause it 
may be convenient, and it is my intention, to describe the 
persons in whom from time to time and for the time being, 
ever since tlie year 184:5, have been vested the rights, interests, 
and claims upon which the plaintiffs found their case and are 
proceeding — to describe them all, I say, including the plaint- 
iffs, by the single name of Hobert Clegg, one of the number ; 
and although James Oollinge, lately a defendant, is dead, to 
designate by his single, name all the lessees named in tlie 
lease in dispute, namely, that of December, 1846, and those 
who from time to time have claimed the benefit of it adversely 
to the persons whom I describe under the name of Robert 
Cleffff. I think it an immaterial circumstance that one of 
the lessees of December, 1846, was not (if in truth he was 
not) interested in or under the lease that expired in September, 
1846, for all the others of them were so interested. Nor do 
I consider it necessary to decide the question whether the 
lease of December, 1846, was a lease in the benefit of which 
Robert Olegg was entitled to participate: I assume Robert 
Clegg to be entitled to have that question decided in his favor, 
but decided subject to the other defense or defenses on which 
James Collinge, upon that hypothesis, relies. 

The trust, however, by which I thus assume James Collinge 
to have been affected as to the lease, was what lawyers call a 
constructive trust, not one declared or expressed; and there 
are some considerations applicable to the former that are 
inapplicable to the latter, as various authorities show. Here 
the right of Robert Clegg (a right merely equitable) arose 
from his beneficial interest in a former lease or former leases 
of the mines comprised in that of December,. 1846, wiiich 
former lease or former leases had expired in or before the 



200 Laches. 

preceding September, in wliicli James Oollinge had also been 
interested, and under which lie was, on behalf of all interested 
for the time being, the worker and manager of the mines 
tln-onghout September, 1846, and for a considerable period, 
next before tliat time. 

' IS'ow, the bill in this canse was not filed before September, 
1855, and the niain subject of dispute being an alleged equi- 
table right to participate in tlie profits of mines, a right vvijicii 
commenced, if at all, in the year 1846, tlie question arises 
whetlier the suit has been instituted too late. Can Eobert 
Clegg, under such a bill, obtain the relief Aviiich he would, I 
assume, have been entitled to obtain if he had commenced his 
suit in 1846 or early in 1847? lie was not in the year 1845, 
nor has at any time since, been under any disability, and he 
has, ever since the determination of the last expired lease, been 
uniformly excluded from the mines and all participation in 
their produce or profits, perfectly aware during the whole 
time of his alleged rights, nor ignorant of any material fact, 
and especially not ignorant tliat his title and, liis claims were 
uniformly denied and opposed, as they were uniformly denied 
and opposed by James Oollinge; he nevertheless, as 1 have 
said, institutes no suit until September, 1855; nor was James 
Oollinge on his side ignorant of any material fact at any time, 
and especially he \vas all along aware that Kobert Olegg, deem- 
ing the exclusion wrongful, alleged continually a title to par- 
ticipate in the profits. Bat Robert Olegg did nothing. James 
Oollinge, on the other hand, was continually working the 
mines, expending money and bestowing his time, labor and 
skill upon them with a view to his own profit alone. 

llobert Clegg's apologies for delay are, that he continually 
claimed and did so to the knowledge continually of James 
Oollinge; that there is no bar from any Statute of Limitations; 
that if the subject in dispute had been an ordinary farm of 
which James Oollinge ha4 been receiving the rent, instead of 
mines which he worked, there would have been no answer to the 
suit; and that themiHes having been (as they have in fact been) 
uniformly prosperous, nor having required (as in fact they 
have not required) any outlay which the produce did not more 
than meet and cover, and James Oollinge having, from hislonw 
acquaintance practically with the property, known (as he must. 



Clegg v. Edmondson. 201 

be taken in fact to have known) all alono; its probable safety 
and probable advantages, there is no reason for treating or 
dealing with tlie claim, otherwise than as a similar claim in 
respect of an ordinary farm of which James Collinge had been 
receiving the rents might properly be. 

This argument is plansible, bnt lias not convinced me. A 
mine which a man works is in the nature of a trade carried 
on by him. It requires his time, caro, attention and skill to 
be bestowed on it, besides the possible expenditure and risk 
of capital, nor can an}' degree of science, foi esight and exami- 
nation, aiford a sure guarantee against sudden losses, disap- 
pointments and reverses. In such cases a man having an 
adverse claim in equity on the ground of constructive trust 
should pursue it promptly, and not by emptj' words merely. 
He should show liimself in good time willing to participate 
in possible loss as well as profit, not play a game in which he 
alone risks nothing. 

There was here, in my opinion, no sufficient apology, no 
excuse for the delay from 1846 to 1855. The existence of the 
suit respecting the Altham mine was and is immaterial, and 
even that suit, commenced not before the year 1848, was de- 
termined in or before 1853. I think, therefore, that as to the 
lease of December, 1846, and the produce of the mines from 
the expiration of the lease that expired in September, 1846, 
the bill should be dismissed, but, I agree, without costs. 

If the plaintiffs desire an account of what, if anything, is 
due to them in respect of produce and profits before that ex- 
piration, without disturbing or going alx>ve the last settled 
account, which I understand to have been in 1845, I think 
that they may have it; and they should be paid, I conceive, 
with interest, their tshares of the value of the rails, plant and 
stock, in and about the mines at that time. But after the 
full notice given in September, 1846, of the intentions of the 
new lessees, the knowledge that all concerned then had, and 
the length of time allowed to pass before the commencement 
of the suit, the plaintiffs must, in my opinion, be bound by 
the prices produced at the sale, however irregular the bid- 
dings, and however null the proceedings would, to a great ex- 
tent at least, iiave probably been deemed to be, if properly 
disputed in good time. As to these portions of the case, 



202 Laches. 

however, the parties can, I suppose, with respect both to 
principle and to interest, make an arranj^einent ainon;? them- 
selves without prejudicing any right of appeal to the House 
of Lords as to the residue. 



Sharp v. Wright. 

(28 Beavan, 150. The Rolls Court, 1859.) 

'Royalty implies covenant to worli. An agreement for a lease calling for 
no rental except the royalty out of coals to be tliig construed to require 
the lessee to commence working iramsdia.tely and to proceed continu- 
ously. 

''Delay prevents spcciJlc porformnnco. In Mnroh, 1850, defendant agreed 
to grant the plaintiff a lease of twenty-one year.s on a coal mine. Three 
months after, defendant gave notice that unless plaintiff commenced 
work in a month, he would consider the agreement abandoned. Two 
years after, plaintiff entered and commenced working but was resisted 
by defendant. The working, however, proceeded, until abandoned 
in 1853. Five years later plaintiff attempted to re.surae work, and filed 
a bill for specific performance. It was dismissed, with costs, on the 
ground of laches. 

By articles of agreement dated on tlie 9th of March, 1850, 
the defendant agreed to grant the plaintiff a lease of some 
mines and seams of coal. The agreement was in the follow- 
ing t^rrns: 

" Jacob Wright liercby agrees to demise and let unto John 
Sharp, who hereby agrees to accept a lease of all the mines 
and seams of coal under three fields containing sixteen ncres, 
or thereabouts, situated near Brentwood, named the F(ire, 
High and Middle Labsdale fields, on the terms followiui;-: 
The first or top seam to be paid for at and aftei- the rate of 
one shilling ahd sixpence per score of twenty peck tubs 
(three and twetity tubs to the score), all other scams below to 
be paid for at and after the rate of two shillings and sixpence 
per score of twenty peck tubs (three and twenty tubs to tlie 
score), for all coals drawn out of the said seams before men- 
tioned. The land used to the extent of half an acre for sink- 
ing the pit on and other purposes, to be allowed free of any 

' Lovs V. Mabury, 59 Cal. 484. 

" Pullard V. Clayton, 1 Kay & J. 462j Post Suhpace Support. 



Sharp v. Wright. 203 

rent or damage; hut all land above that quantity to be paid 
for according to the value thereof. The said John Sharp to 
be allowed full powers of outstroke and instroke into the ad- 
joining royalties. The coal to be worked in a fair and proper 
manner, and all usual privileges granted in leases of coal on 
the Wear and Tyne to be allowed the said John Sharp; but 
the coal belonging to Jacob Wright as aforesaid to be worked 
first, in preference to any other. But should the coal in ad- 
joining royalty belonging to John Bowes, Esq., be brought 
out of the shaft on the hinds of the said Jacob Wright, a 
shaft rent of twenty pounds per annum to be paid for the use 
of the said shaft, for all coal brought ont of it or any other 
royalty adjoining. The rent to he paid quarterly; the lease 
to be for a term of twenty-one years." 

The plaintiff not having proceeded to work the coal mines 
agreed to be demised, the defendant, on the 16th of June 
1850, gave him notice that unless lie commenced working the 
coal within one month he should consider the agreement null 
and void. 

The plaintiff did nothing until September, 1852, when per- 
sons acting under him entered upon the land and commenced 
sinking a pit. The defendant forcibly resisted these proceed- 
ings, and was, in consequence, summoned before the magis- 
trates for an assault; the magistrates, upon the defendant's 
promising not to molest the men workins;, merely ordered 
him to pay the costs of the summons. The men then pro- 
ceeded to sink a pit, but in February, 1853, the plaintiff 
finding it unprofitable altogether abandoned working it. 

This continued until June, 1858, when the plaintiff aLj;ain 
made an attempt to resume workinsr, which was resisted by 
tiie defendant; and in November, 1858, the plaintiff instituted 
this suit to compel the defendant specifically to perform the 
agreement and grant the lease in accordance with it. 

The defendant insisted that the agreement had been un- 
fairly obtained from him, and that it was improvident in its 
terms, for that all such leases in the neighborhood usually re- 
served a " fixed or sleeping annual rent," and which was made 
payable, whether the colliery was worked or not, and for 
which a definite quantity of coal might be worked, but there- 
by securing the working of the mine by the lessee. 



204 Laches. 

Mr. E. Palmee and Mr. Bates, for the plaintiflF. 

Mr. Selwyn and Mr. Fabek, for the defendant. {Mac- 
Iryde v. Weekes, 22 Beav. 533.) 

The Mastee of the Eolls, Sik John Eomilly. 

I am of opinion that the plaintiff is entitled to no relief. 
On'the construction put on this agreement on belialf of the 
plaintiff, he was not bound to work at all during tlie twenty- 
one years, unless he found it profitable; but I think tlie con- 
struction of this agreement is, thattiie plaintiff was bound to 
work it immediately and continuously. No one, it is true, 
can know whetlior it could be worked out in twenty-one or 
any otlier number of years; there is no evidence on the sub- 
ject. 

The case is this: The agreement expressly directs how the 
mine is to be worked, and the rent is made payable quarterly, 
clearly inferring that it was to be worked immediately. That 
is the construction which was put on it from the commence- 
ment by the defendant, who said, " If you do not commence 
working in a month I shall consider our agreement at an 
end.'' Tiie plaintiff took no steps for two years, and then 
when he came on tlie ground he was resisted by the defend- 
ant. Some violence was used and he was treated as a njere 
trespasser; they go before magistrates in Durham, wlio con- 
sider the case, and finding there had been an assault, say, " If 
you agree not to molest the workmen we shall merely make 
you pay the costs." A shaft was then sunk, bnt there was no 
working of the mine, and it was abandoned until 1858. In 
1858 .the plaintiff, finding the price of coal improved so as to 
make it profitable to work this mine, then attempts to renew 
the works, but he is again resisted, and in November, 1858, 
that is about eight years after the contract had been entered 
into, he files this bill for specific performance. 

It is not necessary to refer to the cases on this subject, but. 
I think that Southoomb v. The Bishop of Exeter, 6 IJare, 
213, goes much further than is necessary to enable the court 
to say, in this ease, that tlie bill must be dismissed with 
costs. 



Ebnest v. ViYiAisr. 205 

Eenest v. ViviAisr. 

(33 Law Journal Chancery, 513. Court of Chancsry, 1864.) 

' Laches applied to sale of mine. The defense of laches applies with 
peculiar force to a bill seeking to set aside a sale or lease of mineral prop- 
erty. 

Purchaser siibrog'ated to rights of vendor. Where property of which 
a defective lease has been granted is subsequently sold, the purchaser 
takes the property subject to the burden of any delay of which the ven- 
dor may have been gailty; and in reference to a defense founded on 
laches, the purchaser can stand m no better position than the ven. or 
would have done if he had never parted with the property. 

Bill to set aside lease and for an accountinar— Laches defeats at- 
tempt to avoid the lease. A was tenant for life of estates, 
with an ill-defined power of leasing the! minerals thereunder. In 
1840 he granted a lease of the mines for a long term of. years, and 
died the same year. B, the remainderman in tail to the property, was 
then an infant. He entered into possession and attained his mnjority 
in 1846, when he executed a disentailing deed. He then first discovered 
the existence of the lease granted by A, and proteste.I against the va- 
lidity of it, as not being authorized by the power, and as being obtained 
by fraud; and he refused to receive the rents and royalties reserved 
thereby. In 1852 he agreed to sell the whole estate to E, but with a 
stipulation that he should receive the rents and profits of the mines of 
the estate until August, 1856. In 1855 B and the representatives of E, 
who had died, conveyed the whole property to the plaintiff in this suit, 
who had throughout acted as B's agent. B died in 1856. In 1860 the 
plaintiff filed this bill, alleging that he had then first ascertained the 
nature of the lease of 1840, and the cii-cumstances under which it was 
granted, and praying a declaration that it was void, or that it was ob- 
tained by fraud, and ought to be set aside and an injunction, or in the 
alternative, if the court should think the lease valid, then for an ac- 
count and further relief. Held, that on the ground of laches alone, the 
plaintiff was not entitled to a decree on the first part of his prayer, and 
the bill must be dismissed; but without prejudice to his filing a bill for 
an account on the footing of the validity of the lease, or to his taking 
such proceedings at law as he might be advised. 

Purchase without notice. The defense of purchase for valuable consid- 
eration, without notice, is available when the subject-matter purchased 
is an equitable estate. 

This suit was instituted by Henry Ernest, for the purpose 
of setting aside a mining lease under the following circum- 
stances. 

' Clarke v. Hart, 6 H. L. Gas. 655. 



206 Laches. 

Leonard Bilson Gwyn, by his will, dated the 25th of March, 
1708, after devising certain estates, not including one called 
the Cadley estate, to trustees, for the payment of his debts, 
devised the residue of his real estates, including the Cadley 
estate'and the mines thereunder, to his daughter, Catlierine 
Middleton Gwyn, for her life, without impeachment of waste, 
otherwise tlian by his will was afterward mentioned; with 
remainder to trustees to preserve contingent remainders with 
remainder to the sons and daughters of his daugliter, and the 
heirs of their respective bodies, and ip default of such issue, 
to such one of tiie several persons named in the will, and the 
heirsof their respective bodies, as his daughter should by will 
devise the said estates unto; but in case she made no will of the 
said estates, he devised them to his nephew, the Rev. Thomas 
Powell, and the heirs of his body. The will then contained a 
power for Catherine Middleton Gwyn, and all persons entitled 
in possession under the limitations of the will, to grant sur- 
face leases for twenty-one years, at the best improved rent 
to commence in possession, and not in reversion; the ten- 
ants to be restricted from the commission of waste, and from 
assigning their interest, without the consent of the lessor, witli 
a special reservation to the lessors for the time being during 
their respective lives, of a right to dig for and carry away 
minerals, and to cut timber. And the testator declared that 
it should be lawful for his daughter to work or contract for, 
lease, or set out to be worked and wrought, all mines and 
minerals under such ofhis real estates as were not specially 
devised for payment of his debts, legacies and funeral ex- 
penses, and that all issues and net proceeds and profits aris- 
ing therefrom should be paid over by his daughter to his 
trustees and their heirs, and be by them in the first place ap- 
plied in payment of debts, in case the personal estate and 
real estate therein before devised should prove insufficient, 
and after payment thereof, in the purchase of real estates, to 
be settled to the same uses as his real estates not specifically 
bequeathed for payment of debts were tliereby settled. 

The testator died in May, 1798, leaving his daughter, his 
only child, him surviving, and she afterward married CfEsar 
Adam Marcus Count do Wuits. 

In 1837 Joseph Martin and two other persons, named 



.Ernest v. Vivian. 207 

Michael Williams and John Henry Vivian, established a 
company called the " Swansea Coal Company." 

On the 2d of May, 1840, the Conntess de "Wuits, in as- 
sumed exercise of the power given to her by the testator's will, 
granted a lease of the mines under the Cadley estate to Mar- 
tin, for the term of twenty-oneyears from the 25th of March 
then last past, and (if she had power under the testator's will 
so to do) for the term of sixty years from the same date. The 
net rent was fixed at £A0, with a royalty of 4". per wey of 
coal beyond the iirst 200 weys. The lease contained the 
usnal covenants and stipulations as to notice, etc., and pro- 
vided that the lessee should not assign it without the consent 
of the lessor. 

Shortly after that lease was granted, Martin retired from 
the Swanson Coal Company, and in the early part of 184.6, 
agreed with the remaining partners in the company for the 
sale of the lease to them at the price of £2,.509; and accord- 
ingly, by adeed dated the 5th of March, 1846, he covenanted 
with M. Williams and J. II. Vivian to hold his interest in 
the lease in trust for them; but no actual assignment was 
made. 

The testator's nephew, the Rev. Thomas Powell, died in 
the lifetime of the Countess de Wuits, leaving Thomas Ga- 
briel Leonard Carew Powell, his grandson and heir-at-law; 
and in December, 1840, upon the death of the Conntess, in- 
testate and without having had any children, T. G. L. C. Pow- 
ell then became entitled to the Cadley estate, as tenant in 
tail thereof, under the will. He took the name of Gwyn; 
and on the 10th of February, 1846, the day after he had at- 
tained his majority, he executed a disentailing deed of the 
estate. 

The fact' that the above mentioned mining lease had been 
granted by the Countess to Martin, and that the coal mines 
were held by the Swansea Coal Company as claiming there- 
under was then discovered, and the validity of the lease was 
strongly protested against by Mr. Gwyn; in fact he refused 
to receive the rents and royalties, and threatened to take pro- 
ceedings to set it aside. 

In March, 1852, Mr. Gywn agreed to sell the property to 
which he was entitled under the testator's will, including the 



208 • Laches. 

Cadley estate, to Mr. Joseph Edgar, but with a slipnlation 
that he should continue to receive the rents and profits of tiio 
mines and minerals of the Cadley estate till tlic 2d of Ang-ust 
1856. Joseph Edgar died in December, 1853, having, l)y his 
will, dnly devised the Cadley estate to Lucy Edgar and Jo- 
seph llaytliorne Edgar. 

Some corrc'spoiwlence liad in the meantime taken place 
between Mr. Gwyn and the solicitors of M. Williams and J. 
11. Vivian, with respect to the effect of the lease granted by 
the Countess; and as appeared from the answer of the prin- 
cipal defendants, the result of that correspondence was, that 
the following notice to quit was served by Mr, Gwyn on M. 
Williams and J. II. Vivian. 

"Sept. 28, 1854. 
" Sik: — I hereby give you notice to quit and deliver up 
possession of the whole or so much of the pi'emises described 
in the schedule hereunder written, nuw in yonr possession or 
occnpation, which you hold as tenant, on the 25th of March 
next, or at the end or expiration of the current year of your 
tenancy, which will expire after the end of the half year from 
the date hereof." 

To that notice was appended a schedule containing the same 
parcels as were in the lease granted by the Countess. 

On the 25th of May, 1855, Mr. Gwyn assigned the rents Of' 
the estate and the royalties of the mines under them to the 
plaintiff in this suit, but only until the 2d of August, 1856. 
On the 28th of September, 1855, Mr. Ciwyn conveyed the 
Cadley estate to Lucy Edgar and Joseph llaytliorne Edgar, 
subject to the plaintiff's rights therein; and on the 29th of 
September, 1855, Lncy Edgar and Jo!=eph llaytliorne Edgar 
duly conveyed the estate, with the mines thereunder, to the 
plaintiff. 

Jolm Henry Vivian died in 1855, having, by his will, a])- 
pointed the defendant, Henry Hughes Vivian, his executor, 
who, upon the death of J. H. Vivian, became a partner with 
Michael Williams in the Swansea company; and in 1858 
Michael Williams died, having by his will duly appointed the 
defendant, John Michael Williams, his executor, who then 
joined 11. li. Vivian in the partnership. Mr. Gwyn died on 
the 12th of May, 1860, having by his v.iV duly appointed his 



Ekkest v. Vivian. 209 

wife and Alfred Atkinson Pollock his executrix and executor, 
tiie latter of whom alone proved his will. 

In 1860 the plaintiif filed the bill in this suit against IT. 
H. Vivian, J. M. Williams and A. A. Pollock (the executors 
of J. Martin were made parties by amendment), charging 
that the lease granted by the Countess in 1840 was ultra vires 
on her part; that it was, in fact, obtained from her by fraud; 
but that he only knew in I860 the circumstances under which 
it had been granted, and praying a declaration that the lease 
so granted by the Countess was not authorized by the power 
of leasing contained in the testator's will; or if this court 
should be of opinion that the Countess had power to grant it, 
then that it was obtained from her by fraud, and that, in 
any event, it was not binding on the plaintiff, or those inter- 
ested in tlie estates in remainder. The bill also prayed for an 
account of all coals and minerals got since the Swansea com- 
pany began to work, and for damages in respect of alleged 
improper working; for an inquiry as to the possession of the 
property by the company, and what was due from them, and 
that the amount, when ascertained, might ha paid to the 
plaintiff; that the defendants, IT. IT. Yivian and J. M. Will- 
iams might be ordered to ddiver up the possession of the 
mines to the plaintiff, and be restrained by injunction from 
Working them; or, if this court should think the lease a valid 
one, then for an account on that footing, and that the last 
named defendants might jiay the costs of the suit. 

The plaintiff did not make any affidavit in support of the 
allegation in his bill, but a great deal of evidence was gone 
into to establisli the alleged fraud practiced on the Countess 
when she granted the lease. As, however, the judgment of 
the vice chancellor proceeded solely on the ground of 
"laches" on the part of the plaintiff in instituting this suit, 
it is unnecessary to do more than to refer to the judgment 
itself for the nature and effect of the evidence adduced. 

The defendants, H. H. Yivian and J. M. Williams, by their 
answer, set out the correspondences which had passed on the 
subject of the lease, and also the notice to quit of the 28th of 
September, 1854. They submitted that John Henry Vivian 
and Michael Williams were pnrchasers of the lease of the 2d 
of May, 1840, for valuable consideration without notice; that 

VOL. VIII — 14 



210 • Laches. 

the pliiintifF pnrcliaaed the Cadlej' estate, with full notice of 
the lease and of the claims of the Swansea Coal Company, 
which company had been allowed to incur larafe expenditure 
in working the mines; and that the plaintiff was barred by 
laches, acquiescence and lapse of time. 

Mr. Glasse and Mr. Lindlet appeared for tlie plaintiff, and 
contended that the Countess de Wuits had no power under 
the testator's will to grant a lease of the mines, to endure be- 
yond the period of her own life. They also relied upon the 
alleged fraud practiced upon her, and on the terms of the 
lease; which latter they insisted were most improvident, and, 
in tliemselves, alone sufficient to render it void against the 
plaintiff. The plaintiflf was clothed with the same equities 
as Mr. Gwyn would Jiave possessed had he come to the court 
to set the lease aside and Mr. Gwyn had giveii the notice to 
quit in 1854, and had constantly protested against the validity 
of the lease. At all events, tiie plaintiff was entitled to the 
inquiry, and to the accounts for which he prayed by his 
bill. 

Tlie Attobney-Geneual, Mr. W. M. James and Mr. Speed, 
for the defendants, Vivian and "Williams, argued that the re- 
lief prayed by the bill was inconsistent. The question 
wl?ether the Countess had power to grant tlie lease was a legal 
one, and if so, tlie plaintiff's remedy was at law by t^'ectment. 
Tiiey denied the alleged fraud upon the Coimtess, and insisted 
tliat Mr. Gwyn had recognized the lease as valid; and there- 
fore the plaintiff, who upon his own case stood in Mr. Gwyn's 
shoes, could not question it. He had virttially been guilty of 
champerty if it, were otherwise, for he must have bought a 
right of suit. Moreover, the defendants were purchasers for 
valuable consideration without notice. But, above all, the 
plaintiff was aware of all the circumstances with respect to 
the lease long before 1860; in fact when he purchased the 
property from Mr. Gwyn. The lapse of time was, therefore, 
a bar to him in this court, and amounted to such laches on 
his part as must exclude him from the relief lie soudit 

Mr. CiiARr.Es P.MtKic, for A. A. Pollock. 



Ernest v. Vivian. ,211 

Mr. Maetindale, for the executors of J. Martin. 

Mr. Glasse, in reply. 

The following authorities were cited in the arguments. 

As to plaintiff's remedy being at law, and not in equity: 
25 &, 26 Vict., 0. 42, S. 4; Jones v. Jones, 3 Mer. 161; 
Webster v. The South Eastern Eailway Company, 1 Sim. 
(N. S.)272; S. C, 20 Law J. Rep. (JS". S.) Clianc. 194; Walters 
V. The Northern Goal Mining Company, 5 De Gex, M. & 
G. 629; S. 0. 25 Law J. Eep. (JST. S.) Ohanc. 633. 

As to the case being one to which the defense of a purchase 
for value without applied: Phillips v. Phillips, 31 Law J. 
Eep. (]Sr. S.) Chanc. 321; Joyee v. BeMoleyns, 2 Jo. & La T. 
374; Wallwyn v. Lee, 9 Ves. 24; Pinch v. Shaw, 19 Beav. 
500; S. C, 6 H. L. Gas. 905; 26 Law J. Rep. (JST. S.) Charic. 
65. 

As to laches and acquiescence on the part of the plaintiif: 
Clegg v. Edmondson, 36 Law J. Rep. (N. S.) Ohanc. 673; S. 
C, now reported, 8 De Gex, M. & G. 787; Prendergast v. 
Turton, 1 Yon. & 0. 0. C. 98; aifirmed on appeal, 13 Law 
J. Eep. (]Sr. S.) Chanc. 268. 

As to the accounts: The Bishop of Winchester v. Knight 
1 P. Wins. 406; Dean v. Thwaite, 21 Beav. 621. 

As to the plaintiff's havini:; purchased " a right of suit": 32 
Hen. 8, 0. 9; Prosser v. Edmonds, 1 You. & 0. 481, 498; 
Williams v. Protheroe, 5 Bing. 309; Scully v. Delany, 2 
Irish Eq. Eep. 379; Knight v. Bowyer, 2 De Gex & J. 421. 

As to the effect of the notice to quit: Woodiall's Landlord^ 
and Tenant, 295; Pleasant v. Benson, 14 East, 234. 

As to plaintiff not having filed an affidavit: Norway v. 
Rowe, 19 Ves. 144. 

As to the relief prayed by the bill being inconsistent: 
Cruiclcshank v. J/' Vicar, 8 Beav. 106 ; and Lewin on Trusts 
3d Ed. 752, n., Whalley r. Whalley, 2 De Gex, F. & J. 
IfOO, were also cited. 

KiNDERSLEY, Y. C. (Dcc. 22, 1863), after referring to the 
facts above stated, continued thus: 



212 Laches. 

Tho evidence in tliis case clearly negatives tlie allegation 
that Mai-tin agreed with the Countess on behalf of tiie Swan- 
sea Coal Company. He dealt entirely on his own behalf, bnt 
not being able to assign his interest in the mines witiiout tho 
consent of the party in possession of the estate, he covenanted 
that he would hold tlie lease in trust for Williams and Vivian. 
Williams and Vivian died. The bill in this suit was tiled in 
December, 1860, against their representatives, praying, first, 
a declaration that the lease of 1840 was not autliorized by the 
■will of the testator; secondly, that if the court was of opinion 
that the Countess had a right ui\der tlie will to grant tlie 
lease, it might be declared that it was obtained by fraud; 
thirdly, that it might be declared that it was not binding 
cither on the persons entitled to the Oadley estate in remainder 
expectant upon the determination of the life estate of the 
Countess, or on the plaintiff, and that it might be set aside 
for an account and payment by the defendants, Williams and 
Vivian, of what should be found due; for delivery up of the 
mines, and for an injunction to restrain the continuance of 
the working of them, or in the alternative, that, in case the 
court should think the lease valid and binding on the plaint- 
iff, then there might be an account of the rents and royalties, 
etc. To that portion of the prayer I shall advert last. 

The relief which is sought by the bill is founded on the one 
or theother of two distinct grounds, viz., either on the ground 
that the lease is ipso facto in itself void, or that if not void it 
was obtained by fraud, and ought therefore to be set aside. 
If the plaintiff is right on the first ground, viz., that the lease 
is void, his title is purely legal, he having been since August, 
1856, as to the minerals, the owner of them in fee, but as such 
an owner, in the position of a man whose minerals had been 
wrongfully abstracted. As to the minerals prior to that time 
they were purchased from Gwyn although the legal title to them 
was not in the plaintiff, but in tho representative of Gwyn, 
as trustee for the plaintiff, who might have sued at la.w in the 
name of such representative, and have then compelled him to 
convey by bill in equity. But that is no ground for askin* 
equitable relief as against the present defendants. If, there- 
fore, the plaintiff on the first; ground has a right to come into 
equity as between him and the defendants, his right is this: 



Ernest v. Vivian. 213 

his remedy was oris^inally at law, but as the subject of the 
right was minerals, this court will direct an account, which a 
court of law can not do, because it does not possess tlie req- 
uisite machinery. If the plaintiff were to succeed in setting 
the lease aside, the inquiries and accounts would seem to fol- 
low. 

It is not my intention to express any opinion on the ques- 
tion whether tlie will does or does not contain a power to 
lease for longer than the Countess' life, nor on the question 
whether the terms of the lease were improvident, nor whether 
it was obtained by fraud, because whatever opinion I may 
entertain on any of those questions, tliere is one ground of 
defense insisted on by the defendants wiiich is applicable to 
each and all of them, appears to me conclusive, namely, laches 
and delay in applying for relief. Tiie subject-matter of this 
suit is the right to mines. Mining operations are of a particu- 
lar character; they are an uncertain and speculative and hazard- 
ous adventure. That observation applies more especially to 
mines unopened or recently commenced, the expense of which 
is only compensated bj' a long course of successful working. 
It is true as to every mine that the preliminary outlay, though 
the heaviest, is not the only one, for a large capital and an 
expenditure to a serious amount is necessary to meet the 
exigencies of the case. There is also a continual and an 
increasing risk, for a mine profitable to-day may by to-morrow 
become worthless. Similar observations have repeatedly been 
made by other judges. Now, if a person has a just right to 
mines of which he is not in possession, as against those who 
are in possessioTi of and working them, and if he claims to be 
the rightful owner (the person in possession being aware of 
liis rights or supposed rights), if such owner, not being pre- 
vented by fraud or concealment, stands by for a long period 
of time whilst those in possession are working the mines, this 
court will not lend him any assistance. Whatever remedy he 
may liave at law, he can have none here, because it is not 
equitable to allow him to wait till it is ascertained that the 
persons in possession have succeeded or may have been ruined, 
and if the subject result in profit, to ask to put that in his 
pocket, if in loss, to repudiate the loss. It is not necessary, 
even if possible, to prove whether he acted from premed- 



214 Laches. 

itated design or carelessness. These observations apply not 
only to mines, but have a far wider range, and extend to every 
kind of trade; and not only so, but to every ordinary crko, 
though not perhaps with such force. It would be waste of 
time to indicate, by citing cases, the reasonableness of this 
proposition to show how continually it is acted upon by tlio 
court; but I will now state the reasons for my conclusions. 

First, there is the extent or degree of laches; and, secondly, 
whether the plaintiff or Gwyn, from whom he claimed, was 
aware of the right sought to be established. Althongh the 
plaintiff did not acquire the estate till 1S55, tbe delay for 
which he is responsible is not limited to the five or six j'ears 
before the bill was filed. When he purchased, in May, 1855, 
he purchased the right to the rents; and again, in September, 
he took a conveyance of the fee; but he also took Gwyn's 
interest with the burthen of Gwyn's delay and added his own. 
As the plaintiff in the suit he can stand in no l)etter position 
than Gwyn, if he had never parted with his interest. If Gwyn 
would have been disentitled to relief, so is the plaintiff, 
although at that time unacquainted with the fact. But it 
appears that he was as well acquainted with thp facts as Gwyn 
was. How then most the time be computed ? The Countess 
died in December, 1840, and from that time Gwyn's right to 
insist on the validity of the lease commenced; but he was an 
infant, and so far, therefore, time could not weigh against him 
or the plaintiff. Gwyn came of age on the 9th of February, 
1846, when he received the accumulated income and half a 
year's rent from Martin, and from that day the time must be 
computed. No bill was filed till the JJlst of December, 1860 
(fifteen years within a little). But this court has repeatedly 
refused relief on the ground of delay for a far shorter period; 
and therefore as to the question of extent or degree, the case 
clearly comes within the principles of this court on the 
subject. 

The next question, is, how far Gwyn was cognizant of his 
rights? Ass'to Jiat it is materini to distinguish the grounds 
of relief As to the yjower under the will, that is a more 
question of conatruetion on the will, as there is no other 
instrument having any bearing on that under which Gwyn 
derived his title, and of the contents of which he was aware; 



Ernest v. Vivian. 215 

and as to the lease being void, the lease and the will were the 
only materials, and Gwyn and his agents were well aware 
qf them, as appears by his acts since he came of age. The al- 
le^^atio.ns in the bill that he was not cognizant of these tilings 
are in the most general terms, namely, that lie was on service 
and never able to discover the iiistcury of the lease, etc., but 
admitting in fact, that he knew its terms. As to the alleged 
fraud, the question is, whether Gwyn was informed of thaf ; 
and the answer is, that on the 10th of March, 1848, a letter 
was sent to Mrs. Powell, Gwyn's mother, which contained 
another document conclusively showing that at that time 
Gwyn knew of the circumstances' alleged to constitute the 
fraud. It makes no ditrerence on that question who was the 
person sending those documents; but it was no other than the 
plaintitf, who, from the time Gwyn attained twenty-one, was 
assisting to get rid of the lease; and it is clear that Gwyn was 
aware of the grounds on which it was alleged that the lease 
was void. It might he sufficient for me to stop here and say 
that the plaintiff is not entitled to relief; but the subsequent 
acts of Gwyn and his agents make tlie justice of that con- 
clusion still more clear. There were communications and 
threats of proceedings in 1847 and 1848; and from that time 
for full six years, not only were no proceedings taken, but no 
communication passed on the subject; and it might have been 
thought that he had abandoned the claim, but that he never 
asked for rent. In January, 1854, an agent of Gwyn wrote to 
the solicitors of the defendants for an account of the coal under 
what he called the alleged lease, without prejudice to any 
question between the parties in any future litigation, eitiier at 
law or in equity; and three months after the defendants were 
served with a notice from Gwyn to quit, with a schedule an- 
nexed, being a verbatim copy of the parcels in the lease. 
Gwyn, therefore, treated Vivian and Williams as tenants, con- 
scious, perhaps, that the receipt of rent might have created a 
tenancy from year to j'ear; and he recognized them as liable 
and rightly in possession as yearly tenants. Suppose the 
plaintiff to be otherwise entitled to an account, how can he 
insist upon one in the face of that notice? On a question of 
laches mere notice of claim can not stand in the place of pro- 
ceedings. It only makes the delay more glaring. Laches is 



216 Laches. 

not only absolutely doing nothing, but simply neglect to take 
proceedings; and it appears to me that no case ever occurred 
in wliich the principles of this court, with regard to laches, 
were more peculiarly applicable than to the present. The 
lease alleged to be invalid was granted in 1840; the subject 
matter was mines, continuously worked by those claiming un- 
der the claimant's title (the plaintiff and Gwyn standing in 
the same position); Gwyn, in 1846, coming of age, and well 
knowing what his claims were, and the grounds on which they 
rested; all the materials in liis own possession; noconcealmenl 
or fraud to prevent his asserting them; and not having either 
the excuse of poverty or the want of experienced legal ad- 
visers. 

But here let vis panse for a' moment and ask, Who was the 
plaintiff and who were the defendants? The plaintiff from the 
beginning was Gwyn's agent, and in 1855 bought up this 
already sufficiently stale demand, and added to its staleness by 
himself waitiiig five or sijc years more. He then comes to this 
court to assert his riirhts, but not until Gwyn, Vivian and Will- 
iams are all dead. The defendants are not the persons alleged 
to have committed the fraud, but the representatives of those 
who, not being parties to or cognizant of such alleged fraud, 
purchased the leaHC, and during their lives continuously worked 
the mines at their own risk, as have the defendants since their 
deaths. 

The matter might rest here, bnt one defense as to the fraud 
ought not to be passed over, viz., that Vivian and Williams 
were purchasers for valuable consideration, without notice. 
That defense must be sustained. It is true that Vivian and 
Williams did not acquire the legal estate; but it has been de- 
cided that such a plea is good as to an equitable estate. Be- 
ing clearly of opinion, however, that on the ground of laches 
the plaintiii is debarred, it is unnecessary for mo to go fur- 
ther in this part of the case. 

As to the last part of the prayer, that if the court should 
think the lease valid there should be an account, the fact is 
that an account was never refused, and has always bfioii ren- 
dered whenever applied for; in fact it was provided for by the 
lease. The mode of asking relief is anomalous; but I am 
not prepared to say that in no case would the court give it on 



EiGisTEY V. Small. 2i7 

a bill so framed. But it ought not to be given here for two 
reasons — first, it is asked on the assumption that the court 
would decide the lease to be valid, when it has decided notli- 
ing with respect to it, except that even if invalid, relief would 
be refused on the ground of laciies; and secondly, that to 
grant it would be a great oppression upon the defendants, 
there being a mass of pleadings and evidence, avery small 
portion of which has any relation to a mere account under the 
lease. Tnere are 45 printed pages of bill, 100 of answers, and 
300 of evidence; nine tenths being exclusive of the question 
of tlie validity of the lease. If the plaintiff thinks fit to file 
a bill for an account on the footing of the lease, I will not 
preclude him; but I express no opinion on the point, except 
that he can not have the account now. On the whole the bill 
must be dismissed, with costs; but without prejudice to any 
proceedings at law which the plaintiff may be advised to take, 
or any bill on the footing of the validity of the lease. 



EiGNEY V. Small et al. 

(60 Illinois, 418. Supreme Court, 1871.) 

' Irregular foreclosure cured by delay of debtor. Where a psirl^y gave a 
mortgage to secure several notes, and the assignee owning the whole 
indebtedness sued on a portion of them, obtamed judgment and sold 
the land, which was not redeemed, and the party obtaining the sheriff's 
deed had entered upon the land and opened a coal mine: Held, upon 
bill filed by a grantee of the mortgagor to redeem nine yeais after the 
sale, that the sale was a foreclosui-e, and that the great length of time 
before an effort to redeem was made, waived any irregularity in the 
sheriff's sale. 

Irreg'nlarities ou execution sale, waived by delay. A sale ma.de at four 
o'clock in the forenoon does not conform to the statute and renders the 
sale voi'-lable, and so also does a sale of property en masse where it was 
susceptible of division; but by unreasonable delay amounting to laches 
the debtor loses the right to have the sale set aside. 

Increased value. A party can not lie by and await the increase in value 
of property by mining, and then assert his rights as against a sale 
merely voidable. 

"Writ of error to the Circuit Court of Will County; the 
Hon. Josiah McRoberts, Judge, presiding. 

^Kreutz v. McKnight, 6 M. B. 314. 



218 Laches. 

Messrs. Broadwkll & Spkingeb, for tlie plaintiff iu error. 

Mr. G. D. A. Parks and Mr. S. W. Munn, for the defend- 
ants in error. 

Mr. Justice Walker delivered the opinion of the court. 

This was a bill in eqnity filed by plaintiff in error, in the 
"Will Circuit Court, asjainst defendants in error. The bill al- 
leges that complainant, on the lOtli day of April, 1868, recov- 
ered a jndginent in the Grundy Circuit Court, against Keeffe, 
for tlie sum of $4,850 and costs of suit, and an execution was 
issued thereon to the sheriff of Will county, who levied the 
same on the southwest quarter of section 5, township .">2, north, 
range 19, east, third meridian, in Will countv. The hill al- 
leges that Keeffo has no other property out of which to sat- 
isfy the execution. 

It is alleo;ed that, in September, 1S56, one Philander Mor- 
ton and his wife conveyed the land to Kuelfe, who, to secure 
the purchase money, therefor, executed a mortgage thereon to 
Morton for the sum of $2,220; that Morton assigned the mort- 
gage to lieriry Fish, and that the s;une had passed by sncoes- 
sive assignments to Small, who became the equitable owner 
of the mortgage and indebtedness; that Fish, whilst he owned 
the mortgage and notes, sued upon one or more of them and 
recovered judgment for $103.78 and costs against Keeffe, sued 
out execution, and had the land in conlroveriy sold there- 
under as the property of Keeffe; that the property was pur- 
chased at the sale by George W. Morton, who had become the 
assignee of the judgment, and a certificate of sale was filed in 
the recorder's, office showing the sale was made on the Bath of 
September, 18.58. The land not having been redeemed on the 
9th day of July, 1865, the sheriff of Will county executed" a 
deed to Small reciting successive assignments of the certificate 
of purchase from Fish to him. The bill in general terms and 
without stating facts, charged the judgment to have been 
fraudulently obtained, the execution, levy, advertisement and 
sale, irregular, and charges notice thereof to G. W. Morton, 
who by the sale intended to defraud Keeffe out of his home- 
stead. 



KiGNEY V. Small. 219 

The bill charges that the property was susceptible of divis- 
ion, and that either forty acres of the quarter was sufficient in 
value to have satisfied the execution in favor of Fish; that the 
quarter was worth about $3,000; that the sale was made at a 
time unauthorized by law, and that it was for an inadequate 
price; that about the time tiie sale occurred Keeffe left the farm 
and went to Iowa to pertorni a contract for labor on a railroad, 
to earn the money necessary to redeem the premises from the 
sheriff's sale; that he had given to G. W. Morton a cliattel 
mortgage on a large amount of property, which, if it had been 
properly manager!^ would have been sufficient to have paid the 
remaining unpaid purchase money on the land, but was 
fraudulently converted to his own use by Morton. The bill 
charges that if the judgment, execution, sale and sheriff's 
deed are regular, still Small Only holds as mortgagee, and 
that Keeffe or his assigns have a right to redeem; that 
Small had opened a valuable coal mine on the land since he ■ 
received his deed and has gone into possession. 

The bill further charges that Keeffe was embarrassed; that 
he took a contract on a railroad to earn the money to redeem 
the land, and had obtained the amount necessary, but through 
misfortune lost it all and became penniless, and in that con- 
dition got to some place in ihe State of Missouri, when the 
troubles in the country broke out, and he was until they 
ended unable to return to redeem or to protect his rights in 
the premises; that, after his return, he being unable to re- 
deem, and being indebted to plaintiff in error, he and his 
wife on the 13th of August, 1867, conveyed the premises to 
plaintiff in error by a quitclaim deed, to aid him in collect- 
ing his debt from Keeffe; that the plaintiff in error thereupon 
recovered judgment against Keeffe, sued out execution and 
had the levy made. 

Complainant prays that the deed to Small be Set aside and 
he be deemed a mortgagee, and that the mortgage be decreed 
satisfied out of the rents and profits received by Small before 
Keeffe conveyed to complainant, and that he pay to complain- 
ant the rents and profits since that date; and that complain- 
ant's title be decreed paramount; and that the judgment, 
execution, sale, mortgage and deed, to Small, be removed as a 
cloud, and that possession be decreed to complainant. 



220 Laches. 

To this bill a demurrer was filed which was sustained by 
the court, and the bill dismissed at the September terra, 1870. 
Tlie record is brought to this court and errors are assigned 
tliereon, questioning the correctness of the decree. 

It is urged that the bill charges the judgment, execution 
and sale, were fraudulent, and the exhibits are referred to as 
showing in what the fraud consisted. On examining the ex- 
ecution levy and return of the officer we can perceive nothing 
irregular or fraudulent in them. They all seem to confoiMii 
to the statute. On examining the certificate of purchase we 
find that it recites that the sale was made by the sheriff on 
the 25th day of September, 1858, at four o'clock in the fore- 
noon. If the sale was made at that hour of the day it was 
contrary to the statute, and that formed ground for setting 
aside tlje sale and awarding an alias execution. Tlie statute 
has declared that all such sales shall be made " between the 
hours of nine in the morning and the setting of the sun of 
the same day." And the same section, after prescribing all 
the regulations for the sale, and for a punishment of the offi- 
cer for disregarding tliein, provides that no sucli offense or 
any irregularity on the part of the sheriff shall affect tiie va- 
lidity of the sale unless it be made to appear the purchaser 
had notice of the irregularity. 

This, then, would have cured all defects, unless it be the 
time of the sale, and there is not the slightest pretense that 
Small had notice of any otiier. And under these provisions 
it is apparent that such irregularity does not render the sale 
void, but only voidable. Until the notice is brought home 
to the purchaser, the law presumes the sale valid and effectual. 
And there can be no question that all objections to a voidable 
sale may be waived. Thus it has been held in such cases, 
that a party to avoid a sale must proceed to do so in a 
reasonable titne. Laches, in such cases, will bar the party of 
equitable relief. In tliis case the defendant in execution must 
have known of the sale and satisfaction of the judgment 
against him, and he will be presumed to have known of tliis 
defect if one existed in fact. The probability is strong that 
the sale was made as required by the statute, and a mistake 
occurred in filling a blank certificate, as the sheriff is pre- 
sumed to have understood tlie requirements of the statute; 



RiGNEY V. Small. 221 

and had lie designed to aid in defrauding the defendant, he 
would have, in all probability, made his certificate in due 
form. Eor does the bill charge that the sale was made at the 
hour named. It was only gronnd for setting aside the sale 
if other rights had not intervened, reviving the judgment and 
awarding an alias execution against him. Knowing this ho 
slumbered on his rights, neither moving the court to set aside 
the sale before the redemption expired, nor by doing any 
other act for nearly nine years, and then he merely releases 
his claim to plaintiff in error, and no suit is brought until 
in Ma}"^, 1869, more than ten years and a half after the sale 
was made. 

Here is a case where the parties have acquiesced in a judi- 
cial sale for a greater period than would have formed a bar, 
with the performance of the other requirements of the statute, 
to a suit in ejectment, under at least two limitation laws of 
the State. The defendant by his indifference and non-action 
treating the sale as valid, and apparently accepting the credit 
given him by the sale for so many yearsj must liave been 
esatisfied with the result of the proceeding. He never offered 
to restore plaintiff in execution to his rights by doing any 
acts until, by the growth of the country, the property has no 
doubt greatly appreciated, and large sums, we may infer, have 
been expended upon the land, as the bill alleges a coal mine 
has been opened bj' Small which has rendered large profits. 
To permit Keeffe to lie by and be governed entirely b}' cir- 
cumstances for nine years, whether he would treat the sale as 
a satisfaction of his debt, or would declare the sale void- 
able and recover the property, would be highly inequitable 
and devoid of justice. He should, if he desired to avoid the 
sale, have acted in a reasonable time and before innocent per- 
sons had acquired rights; and having failed to do so, he must 
be held to have waived all irregularities and to have ratified 
the sale. 

The sale en masse is but an irregularity. If there was such 
an irregularity in this case it was merely ground for havini>' 
the sale set aside. It did not render it void, but only void- 
able, and all we have said in reference to the time of sale 
applies for the same reasons to this objection; and the as- 
signee of Keeffe can not occupy a better position than Ids 



222 Laches. 

assignor, as he took the property precisely as Keeffe lield it. 
Small had a right to suppose, after such a length of time, 
that Keeffe had elected to ratify the sale and claim that the 
judgment against him was satisfied, and having purchased 
under such circumstances it is but reasonable and just that 
he be protected in the purchase. 

There was, therefore, no error in dismissing tlie bill in the 
court below, and the decree is affiiuned. 

Decree aifirmed. 



Watts' Appeal. 

(78 Pennsylvania State, 370. Supreme Court, 1875.) 

Waiver of teclmical exceptions. If technical exceptions be not brought 
to the notice of the court in a formal manner and at a proper time, it 
will be presumed that the party elects to proceed on the merits. 

Action by shai'eholders against directors. Where mismanagement by 
directors of a corporation is so gross as to amount to fraud, a bill may 
be maintained against them personally by a shareholder. A shai-eholder, 
may, under proper circumstances, interpose for the protection of the 
corporation. 

Directors not liable for mistalce in exercise of discretion. The direct- 
ors of a corporation for the sale of land rejected offers for the purchswe 
of its land; although this wa^ imprudently done, yet being a matter 
resting in their discretion, if without fraud, they were not responsible. 
When directors act honestly for what they esteem the best interests Or 
the corporation, and do not wilfully pervert their powers, but only mis. 
judge them, they will not be hel'd to account for money expended in such 
case. 

' Essential powers of corporation. The power to execute and issue bonds, 
contracts and other certificates of indebtedness, belongs to all corpora- 
tions, public and private, and is inseparable from their existence. 

Implied powers. The power to contract necessarily involves the power to 
create a debt. The charter of a land company gave the directors 
power to dispose of its land by deed or lease; the power to mortgage 
land on a proper occasion and for a proper debt is implied. 

Inpidental powers. The corporation owning a very large body of lands, 
had power by their charter " to aid in the development of minerals and 
other materials, and to promote the clearing and settlement of the 
country." J?«ZcZ, that the building of saw mills and an hotel for the 
accommodation of those having business in connection with carrying 
out the prime object of the corporation, was within its powers. 

' Mining Co. v. Anglo Cal. Bank, 104 U. S. 192. 



Watts' Appeal. 223 

Ultra Tires affected by laches. Even if such expendituiea were ultra 
vires, stockholders knowing of them and not objecting until long after 
their completion, could not compel the directors to account for the 
moneys expended. 

Assent of stockholder presumed. When an act of directors is in excess 
of their authority, but done with a bona fide intent of benefiting 'the 
corporation, and a shareholder, knowing of it, does not dissent within 
a reasonable time, his assent will be presumed, and he can not gainsay 
it. 

' Protest not enang'h, without suit. When the act of the directors com- 
plained of is to be followed by a large expenditure, the shareholder 
should not only make his protest within a reasonable time, but should 
follow it up by active preventive measures. 

'•' Lachss operates as a bar. It is agamst good con-cience that one having 
power to prevent should stand by and see his associates spend money 
which may result to his benefit, and afterward charge them with it. 
His neglect to act at the proper time effectually bars his right. 

Statute of Limitations. Even if the directors were held to the liabilities 
of a trust relationship, six years would bar an action for misuse of the 
corporate property. 

Corporate bonds arc cash to the corporation. The stockholders di- 
rected public sales of their lands, and that payment might be made in 
cash and in their bonds: Held, the payment in bonds was equivalent 
, to cash. 

Purchase by directors at public sale. Directors bought at the sales at 
fair prices, and the sales were conducted openly and fairly. Held, the 
sales to them were valid. 

June 2, 1875. At Plarrisbiirg. Before Agnkw, 0. J., 
Shaeswood, Mercce, Gordon, Paxson and Woodwaed, J. J. 

Appeal from Nisi Frius. In Equity. IS'o. 2, to July 
term, 1870. 

Tlie bill in this ease was filed by Henry M. Watts, John M. 
Bickel, Lewis Seal, Charles E. Anspach and James Anspacli, 
plaintiffs,again8t The McKean and Elk Land and Improvement 
Company, John C. Cresson, "William Biddle, Frederick Fra- 
ley, Samuel Mason, Mordecai L. Dawson, John Livezey, 
Samuel Welsh, James E.G reeves, Frederick Collins, William 
Hacker, Cliarles H. Hutcliinson, Hurry G. Clay, William 
Welsh, Eobert P. Kane, The Pennsylvania Company for In- 
surance on Lives, etc., the executor, etc., of I. P. Hutchinson, 
deceased, the executrix, etc., of S. M. Leiper, deceased, the ex- 
ecutors, etc., of Jeremiah Hacker, deceased, S. Mason and E. 

' Chgg v. Edmondson, 8 M. R. 180. 
2 rratl V. Califoinia Co., 1 W. C. R. 87. 



224 Laches. 

F. Gaj, trustees of McKcan and Elk Land and ImiDrovemeTit 
Company under a first niortga(?e, C. H. Hutchinson and li. 

G. Clay, trustees of same company under a second mortgage, 
The New York and Erie Mining Company and The Erie Min- 
ing Company. 

On the 6th of February, 1856, an act was passed to incor- 
porate Tiie McKean and Elk Land and Improvement Com- 
pany. It recited tliat Samuel M. Leiper died seized of an un- 
divided fourth of land in the counties of Elk and McKean, 
etc.; that the other owners wei-e desirous of converting their 
interests into the stock of a corporation, established by the 
act; that the interests of the widow and children would be in- 
jured by a sale of the lands by proceedings in partition wiiicli 
were threatened by the other owners, and that the executors 
of Leiper had no authority to convey the land to such corpo- 
ration and receive as the other owners were about to do, pay- 
mcTit in stock of the corporation; it was enacted: 

Sect. 1. That tlie executors, etc., of Leiper, mi^jht sell and 
convey to the corporation the interest of Leiper in tlie lands 
and receive its stock in payment. 

Sect. 2. That Henry M. Watts, John K. Kane, Frederick 
Fraley, John C. Cresson, Samuel Mason, John Livezey, 
Joseph Cresson, Jeremiah Hacker, Mordecai L. Dawson. 
Samuel Welsh, James K. Greeves, L P. Hutchinson, William 
Eiddle, Thomas Struthers, and the executors of Leiper, their 
associates, successors and assigns, should be a corporation 
under the name of The McKean and Elk Land and Improve- 
ment Company, with all the privileges, etc., of a corporation. 

Sect. 3. The corporators above named should, as soon as 
convenient, elect seven directors, to serve for one year; each 
share of stock to entitle the holder to a vote; the directors to 
choose one of their number for president, and other officers 
might be elected and appointed; the governor to issue letters 
patent on notice of the organization of the corporation. 

Sect. 4. The corporation to value their lands and convert 
them into a common stock, to be divided into a convenient 
number of shares, which were to be apportioned amongst the 
owners of the lands according to their interests respectively 
for which shares certificates should be issued. 

Sect. 5. The directors to sell the land and receive "any 



Watts' Appeal. 225 

moneys, mortgages or other securities, including the certifi- 
cates of stock of this corporation, in payment, * * * pro- 
vided that the said corporation shall sell and dispose of at 
least one half of all their land within ten years, and the re- 
mainder, except 2,000 acres, within twenty years from tlie 
date hereof. 

Sect. 6. The corporation to have power to lease for a period 
not exceeding twenty years, any of the lands and the right, 
etc., of mining and carrying away iron ore, coal and other 
minerals and materials from the land, and " to aid in the 
development of the minerals and other materials, the use and 
transportation of them to market, and promote the clearing 
and settlement of the country; * * * to employ their 
capital in the construction of such railways, not exceeding 
twenty miles in length, as may be necessary from such mines 
to intersect the Sunbury and Erie or the Allegheny Valley 
Railroad; * * * to create a capital stock of $100,000, for 
the purposes specified in this section." 

Sect. 7. Dividends from the sales of lands, etc., to be made 
amongst the shareholders at least once a year, " and when the 
proceeds of the sale of lands are paid to the holders of certifi- 
cates of stock, such certificates shall be surrendered to the 
corporation and canceled, and new certificates issued accord- 
ing to a uniform rule of equitable adjustment of the rights of 
shareholders, * * * so that whenever the whole of the 
lands shall have been sold the certificates representing the 
same shall have been entirely exhausted and canceled." 

On the 14th of April, 1864, a supplement to the foregoing 
act extended the time for selling the lands of the company five 
years. 

Another supplement, passed March 16, 1867, authorized 
the company to borrow money for purposes of improving 
and developing their lands, and for all other purposes of tlie 
corporation, at such rate of interest as they might deem ad- 
visable, or by sale of the bonds at a discount, and secure the 
payment of the money borrowed by mortgage or mortgages on 
their estate. 

A supplement was passed February 10, 1852, to the act to 
incorporate the Sunbury and Erie Railroad Company (passed 
Apr.il 3, 1837), It autliorized municipal or other corpora- 
voL. VIII— 15 



226 Laches. 

tions to subscribe for the stock of the Siinbiiry and Erie Il;ii]- 
road Coittpany, and to borrow money to pay tlierefor; tiie 
b^nds that might be issued by snch corporations bearing in- 
terest at six per cent, per annum might be received by the 
railroad company as cash in payment of the si;bscriptious for 
stock, etc. 

The bill set out: 

1. That H. M. Watts, July 1, 1855, was owner of one 
fourtli, Leiijer's representatives one fourtli, Fraley, Cresson, 
Hacker, Greeves, Biddle and Hutchinson's estate were owners 
of the other half of land in McKean and Elk counties, com- 
prising between 120,000 and J 50,000 acres ; and the act (above 
stated) to incorjwrate the McKean and Elk Land and Im- 
provement Company. 

2-9. Set out the provisions of the act, its acceptance, issue 
of letters patent, etc. 

10, 11. Conveyance of the land to the corporation, and its 
conversion into stock; 108,000 shares issued to the owners of 
the land,' and 12,000 shares reserved for incidental expenses. 

12. That plaintiffs held more than 30,000 shares of the 
stock; and charging the directors with neglect of duty, mal- 
feasance in office and perverting the purposes of the corpora- 
tion. 

13. Tiiat the directors neglected to sell the land as required 
by the act of incorporation, viz,, one half in ten years, and the 
remainder in twenty. years, and make dividends of the pro- 
ceeds at least once a year. 

14. Subscribing witiiout authority of law for 1,625 shares 
of the stock of the Snnlmry and Erie Railroad Companj', to 
be paid for, $100,000 in cash and 5,000 acres of land. Watts, 
who was president, voting against the subscription and re- 
signing. 

15, 16. Watts' various protests and efforts to withdraw his 
land. 

17. Assessment of 60 cents per share on the stock. 

18. The unlawful execution of a mortgage, February 1, 
1863, for $200,000 to Mason and Gay, trustees. 

19. 3i. Selling and conveying land to the Erie Mining 
Company, and the New York and Erie Mining Com])any in 
1865, and accepting 11,750 shares of the stock of those com- 
panies in payment. 



Watts' Appeal. 227 

20, 21. Unlawfully executing a mortgage, June 22, 1867, 
for $267,000, to 0. H. Hutchinson and Harry C. Clay, as 
trustees; the bonds secured by both mortgages taken by tl\e 
directors, wlio were makers, sellers and purchasers. 

22. Sale in 1857 of 9,000 acres of land for $51,654. 

23-25, 32. In 1868 the directors proposed to sell 98,795 
acres and sold 35,600 acres at various prices, 62 per cent, paj- 
able in stock, 36 per cent, in mortgage bonds, and 2 per cent, 
in cash; the 35,600 acres were part of 98,600 acres estimated 
by a committee of the directors at $2,254,788; the sales were 
to shareholders, creditors and directors, on terms prescribed 
by themselves, and would exceed $400,000. 

26, 27. Since November, 1859, Watts had been persistent 
in his efforts, by written and verbal communication, to with- 
draw his land or purchase it; and the refusal of the directors 
to sell to one Putnam, who proposed to purchase 15,000 acres 
at $25 per acre. 

28. The directors, by accepting conveyances of the land 
from the owners, assumed all the duties imposed by tlie 
charter, which they have neglected and refused to perform, 
etc. 

30, 33. The directors, without authority of law, had con- 
tracted debts, and engaged in the erection of saw mills, hotels 
and other buildings, and had inisappropriated the funds in- 
stead of dividing them amongst the shareholders. 

31. The directors mortgaged the lands so that they neces- 
sarily became purchasers of the bonds secured by the mort- 
gages; on the 20th of February, 1870, they threatened to 
foreclose the mortgages if the stockholders did not raise money 
to pay taxes. 

The relief prayed for was for a decree: 

That the two mortgages were void, and not a lien; that the 
sales to the two mining companies be set aside, or if valid that 
the directors individually pay the plaintiffs their proportion of 
$117,500, the value at which tliey estimated the shares of these 
companies' stock; tiiat the subscription to the Sunbury and 
Erie Railroad stock was without authority of law, and the di-, 
rectors pay the plaintiffs the damages they may have suffered 
by it; that an account be taken, and defendants pay, etc.; 
that the land to which plaintiffs may be entitled be conveyed 



228 Laches. 

to them clear of incumbrance; or, if that can not be done, 
tliat tlie directors individually pay the plaintiffs the value for 
each acre they should not be able to convey; that the sale of 
the 35,600 acres was without authority and void, or that the 
directors pay plaintiffs their proportion of their value; that 
they pay the taxes; and an injunction restraining a sale by 
the trustees under the mortgages; there was also a prayer for 
general relief. 

The answer of the McKean and Elk Land and Improvement 
Company denied the allegations of the 12th paragraph of the 
bill; denied the ciiarges in the 13tli paragraph, and averi'ed 
that they had done all in their power to effect a sale of the 
land; the land was inaccessible, except in the neighborhood 
of the Sunbury and Erie Eailroad; the completion of this 
road had been' delayed for nearly nine years; outlays wei'C re- 
quired for roads, etc., without funds to make them; all tiie 
large shareholders, except Mr. "Watts, were willing to contrib- 
ute; there was always an asjent residing in the neigliborhood 
to make sales; whilst Mr. Watts was president, the price of 
farm land had been fixed at $5 per acre, but under the direc- 
tion of the defendants, in January, 1861, the price was fixed 
at $2 per acre without obtaining purchasers; no sales of any 
magnitude had been made during Mr. Watts' presidency, nor 
had he, although often requested, suggested anj' plan for ef- 
fecting sales. Denied recollection of allegation in 27th para- 
graph, that Putnam offered to purchase land at $25 per acre; 
demanded proof of it and of his ability to pay. Admitted the 
subscription to the Sunbury and Erie llailroad stock. They 
averred that the importance of the railroad as an outlet to the 
lands, even at a large outlay, was appreciated from the begin- 
ning and recognized by Mr. Watts in drafting the charter. In 
1858acommittee, of wln'cli he was one, reported tluit a fair price 
could not be obtained without such outlet. The act of Febru- 
ary 10, 1852, conferred authority to make the subscription; a 
committee was appointed to negotiate with the railroad com- 
pany, the effort being to save the construction of a connecting 
road by securing a change of route, and obtaining a route 
which was contiguous to and ti'aversed the lands for many 
miles; authorityi'rom the stockholders to make subscription, of 
which $91,000 of first mortgage bonds were agreed to be taken 



Watts' Appeal. 229 

There was a failure to make any arrangement with Mr. Watts 
because of his unreasonable demands, and because he claimed 
an allowance for the charter and to be free from a.uj respon- 
sibility to the Sunbury and Erie company, and that he asked 
warrants along the line of the railroad. 

There was a large indebtedness for taxes, surveys, etc.; the 
shareholders, who had previously assisted, declined to con- 
tribute further on account of Mr. Watts' persistent refusal to 
aid or permit the lands to be sold at public sale, or to raise 
funds, and his dissent from any assessment on the sharehold- 
ers to pay the liabilities, and interposing difficulties to rais- 
ing money from sale of lands, and warning the company not 
to permit them to be sold for taxes. The stockholders, on the 
16th of May, 1862, authorized the first mortgage to pay the tlien 
present indebtedness and the subscription to the railroad; $91,- 
000 of the mortgage bonds were appropriated to pay thei sub- 
scription and remainder to legitimate indebtedness; none 
of the proceeds of the mortgage were converted to the private 
use of the directors or misapplied. The second mortgage was 
made with the approval of the stockholders, under the act of 
March 16, 1867. Watts admitted the propriety of investing 
funds for improvements, and that the act of 186T removed 
most of his objections to the carrying on of improvements, 
etc., by the corporation. Tlie bonds were not chiefly taken 
by the directors; opportunity was offered to Watts to sub- 
scribe; he agreed to subscribe to a working capital, and with- 
drew his subscription because, as he alleged, it had been made 
with the understanding that he was to be president. 

At a stockholders' meeting in February, 1868, a plan for 
the division of the land amongst them was recommended, 
which was referred to a eommittee for conference with the 
directors; there were other meetings for the same purpose, 
and on May 29, 1868, a public sale was authorized, should 
the plan of division fail; it did fail, and there was a public 
sale October 20, 1868. 

There were throughout the answer denials of neglect of duty 
and of misapplication or misappropriation of the funds. 

Separate answers of the other defendants were filed, deny- 
.ing, amongst other things, misappropriation of the funds and 
neglect of duty. Some of these denied any connection with 
any of the matters charged. 



230 Laches. 

Eeplications were filed, and an examiner appointed, wlio 
took and reported a great mass of testimony. William J.- 
Price, Esq., was appointed master, llo reported elaborately 
and at i^reat length. IIo found the following facts: 

At a meeting of the directors thoy resolved tliat tlie shares 
of stock to be issued should be equal to the nnmher of aeies, 
and then bhould not exceed 108,000 shares, each siiare to rep- 
resent one acre, and to bo estimated at $.")0 till otherwiso 
ordered; the sliares reserved were 12,000, and were to abido 
the future action of the company. The directors acted with 
great promptitude to carry on the primary objects of the cor- 
poration. The lands were of great value for timber, coal and 
iron, and also for agricultural purposes, but it was an almost 
unbroken wilderness, and away from public highways, so that 
their resources could not be made available. The Sunbury 
and Erie Railroad and the Allegheny Valley Eailroad were 
looked to as soon to furnish outlets to market. The loading 
object of the company was to sell the lands and divide the 
proceeds amongst the stockholders. All the directors labored 
earnestly to interest capitalists and make sales of the lands. 
In May, 1858, a committee of the directors was appointed to 
endeavor to effect sales of the lands and stock, and ascertain 
if anything could be done to aid in procuring an outlet to 
market. In September the committee reported, that obtain- 
ing a fair price for their lands could not be accomplished until 
there was an outlet for their mineral product, and that which 
seemed likely to benefit them first was the western portion of 
the 8unbury and Erie Eailroad; this railroad (afterward the 
Philadelphia and Erie Eailroad) was not opened till seven years 
after the report; its first train went through in October, 1865. 
This delay prevented sales of lands and there were no dividends; 
but the accumulation of taxes and the necessary expetises 
were large and to be provided for. In 1859 the company 
subscribed for $162,500 of the stock of the railroad company, 
in order to secure a railroad through their lands; the sub- 
Bcription was paid in 1863, by $91,000 of the mortgage bonds 
mentioned in the bill, 4,800 of the reserved 12,000 shares of 
stock, and 200 acres of land. The first mortgage was issued 
February 1, 1863, to Samuel Ma,son and Edward F. Gay, as 
trustees; the bonds secured by it amounted to $200,000, and 



Watts' Appeal. 231 

were to meet the subscription to the railroad stock and other 
liabilities. During the oil excitement in 1864, 1865, a lease 
was made to an oil company of some of the company's lands 
supposed to contain oil. This enterprise failed; while the 
excitement continued, the stock of the Land and Improve- 
ment Company was sought after and sold at increased prices; 
some was sold at $20 per share, but npon the failure of tlie 
•efforts for oil its value decreased; Lewis Seal, one of the 
plaintiffs, bonght 800 shares for $1 per share. 

In September, 1866, tlie stockholders authorized the direct- 
ors to raise by loan $200,000 to meet liabilities accrued, and 
provide means to meet future liabilities, and to issue bonds to 
be secured by a second mortgage. Mr. Watts denied tlie power 
of the company to raise funds in that way; the act of March 
16, 1867, supra, was passed to confer the power. A second 
mortgage and bonds were executed June 22, 1867, Charles II. 
Hutchinson and Harry C. Clay being the trustees. 

The master found that the failure to sell more land within 
the time limited by the charter could not be attributed to the 
neglect of the directors or to a disregard of the provisions of 
the eliarter. Tlie long delay in the opening of the Pliiladel- 
piiiaand Erie Railroad contributed in a large measure to tlie 
disappointmeutof the objects and calculations of the original 
owners of the land. 

" In this condition of things, the successive boards of di- 
rectors were oliliged to assume a difficult and at times a deli, 
cate management; but they appear to have communicated fre- 
quently with the other stockholders, and to have conducted their 
management under the counsel and with the approval of a 
large majority of them. In the opinion of the master, the 
evidence fnlly justifies the conclusion that the successive boards 
of directors proceeded from time to time in such manner as 
they honestly believed to be for the best interests of all the 
stockholders." 

As to the subscription to the Sunbury and Erie Eailroad, 
* * * " The railroad company being without means to 
complete the undertaking, those who were supposed to be 
benefited by the road were called upon to contribute to its 
construction. The location of the road at some points was 
made dependent upon the manner in which such calls were 



232 Laches. 

responded to. * * * Tlie railroad would not have tonelied 
tlie land of the McKean and Elk company at all, if the sub- 
scription had not been made; but that it would have been 
laid at least ten miles away. With the subscription, however, 
the road was laid about fourteen miles through the company's 
land, and added considerably to its value. 

"Tiie following facts show wliat action was had in the Mc- 
Kean and Elk company, in relation to the subscription com- 
plained of, so far as it appears in the evidence. The attention 
of the board of directors was called to the sul)ject by Mi'. 
Fraley, iu August, 1857. The directors' minutes, under date 
of December 14, 1857, sliow that the president laid before 
the board a programme for a basis of land operations between 
the McKean and Elk company and tlie Sunbnry and Erie 
Railroad Company, wiiieh was referred to a committee of 
tliree stockiiolders — John C. Cresson, John K. Kane and 
Henry M. Watts — to report at a future meeting. On Dc- 
csmbor 26, 1857, that committee presented a comniiinica- 
tion to the board, which was considered; arid it was agreed 
tliat the company would negotiate with the Snnbin-y and Ei'ie 
Railroad Company for 15,000 acres of land, at six dollars ])er 
acre, to be paid for in the stock of the railroad company at 
par. That transaction does not appear to have been consum- 
mated as proposed; but at a meeting of directors, lield on the 
5th day of May, 1859, called for the purpose of considering 
the subject of subscribing to the stock 6f the Snnbury and 
Erie Railroad Company, a committee of three — Henry M. 
Watts, Frederick Fraley and James R. Greeves — was ap- 
pointed, with authority to ,make a subscription of $100,000, 
conditioned on the adoption of the route by the West Clarion 
and Two-mile-rnn, the subscription not to be payable until 
the road was completed. The subscription appears to have 
been made on the 14th day of June, 1859, payable in 5,000 
acres of land at $12.50 per acre, and $100,000 in cash upon 
completion of the road. It appears also to have been made 
by the directors for and in the name of the McKean and Elk 
company. The directors at that time were Henry M. Watts — 
who was also president of the company — John 0. Cresson, 
Samuel Mason, Mordeoai L. Dawson, Frederick Fraley, Jatnes 
R. G-reeves and Robert P. Kane. Mr. Watts resigned as 



Watts' Appeal. 233 

president and director on the 12th day of ]S"ovember, 1859. 
The subscription thus made by the directors for the company 
was ratified by the stockholders. The answer of the McKean 
and Elk company in this case supported by the minutes of a 
stockholders' meeting held May 16, 1862-, shows that the 
act of the directors was adopted, and that they were authorized 
by the stockholders to borrow $200,000, to pay, among other 
things, the subsct-iption to the Sunbury and Erie Railroad 
Company, and to issue bonds of the McKean and Elk com- 
pany, secured by a mortgage of its lands for repayment of 
the money so borrowed. 

" At a meeting of the directors of the McKean and Elk 
company, held March 13, 1863, Mr. Fraley, of the commit- 
tee to subscribe, reported that the Philadelphia and Erie Rail- 
road Company had agreed to settle the McKean and Elk com- 
pany's subscription by receiving $91,000 of six per cent, bonds 
of said company, 200 acres of land at or near the summit — to 
be selected bj' mutual agreement — and 4,800 shares of the re- 
served stock of the company, for which the McKean and Elk 
company was to receive $162,500 of the stock of said railroad 
company at par. This proposition was accepted by the board 
of directors. 

The master was of opinion that the company had power to 
make the subscription. 

As to the first mortgage: 

* * * "At the time of the creation of this mortgage, 
the taxes upon the lands of the company for the years 1860- 
61, amounting to $11,600, were due and payable, and the 
lands were liable to be sold for the taxes. The company 
was without money, and stood indebted to stockholders 
for advancements to a considei'able amount, to pay cur- 
rent expenses. It was indebted also for surveys and ex- 
plorations of the lands, necessarily incurred in preparing 
them for sale, and as part of the efforts of the directors to 
induce purchases. The company was also under obligation to 
meet the subscription to the stock of the Sunbury and Erie 
Railroad Company. The efforts to raise money by sales of 
lauds had proved abortive, as had also an attempt to obtain a 
loan by assessing the sum ratably upon the stockholders. In 
this condition of affairs, a stockholders' meeting was held on 



2 34 Lachks. 

the 16tli of May, 1862, to consider and take action npon the 
financial condition of the conripany, at wliicli meeting it was 
unanimously ' resolved that tlie directors be and they are here- 
by authorized to borrow the sura of $200,000 for the purpose 
of paying off the, present indebtedness of the company; for 
the payment of the subscription to the stock of the Pliiladel- 
phia and Erie Railroad Company, and for such other purposes 
as the interests of the company may, in their judgment re- 
quire, * * * and the repayment of the money so borrowed 
shall be secured by mortgage of the real estate of the com- 
pany.' 

" Tlierenpon the board of directors resolved to borrow the 
sum of $200,000 in the name of the company, and to execute 
and issue bonds for the saine, * * * and a mortgag(3 of all 
the lands of the company to Samuel Mason and Edward F. 
Gay, in trust, to secure the payment of the jirincipal and in- 
terest of the said bonds. * * * Tiie bonds and mort-age 
were thus created by the company, and the proceedings of tiie 
directors therein were grounded upon tiie action of tlio stock- 
holders as the source of autiiority for wliat they did. It is 
true that the cliarter of the company is silent upon tlie sub- 
ject of borrowing money. It neither expressly authorizes nor 
forbids it; and it may be assumtd that such a transaction was 
not contemplated when the cliarter was obtained. * * * 
A corporation has incidental authority, when not specially re- 
stricted, to borrow money for any of its lawful purposes, and 
when by its charter it is authorized to purchase in fee or for 
any less estate all such lands, tenements and liei-editaments as 
shall be necessary and convenient in the prosecution of its 
works, and the same to sell and dispose of at their jileasure, 
it has power to mortgage its real estate to secure the payment 
of a debt. The master is of the opinion, therefore, that the 
said first mortgage, dated the first day of February, 1863, was 
not ultra vires and void as chara-ed in the bill. 

"The second mortgage stands upon a footing different from 
thefirstone, under the act of March 16, 1867, «M^m. * * * 

"At a meeting of the stockholders, held the 18th day of 
September, 1866, the directors were authorized by resolution 
to raise by loan the sum of $200,000, ' for the purpose of dis- 
charging the present and providing funds to meet future obli- 



to 



Watts' Appeal. 235 

gations of the company.' * * * The bonds with six per cent, 
interest * * * to be secured by mortgage of the estate of 
the company. And the directors were authorized to sell the 
bonds at sncli time, at such rates and on such terms as they 
should deem best for the interests of the company'. At a 
meeting of the directors, on the 24tli of September, it was 
resolved that, agreeably to the said anthoi'ity given by the 
stockholders, the sdm ot $200,000 should be raised by a sale 
of six per cent, bonds of the company; * * * tliat the pay- 
ment of the said bonds should be secured by a iirst mortgage 
on the lot of ground and buildini;;s now erecting thereon for a 
hotel, and the lots of ground and buildings to be erected 
thereon by the company for dwelling and boarding-houses, 
situate in the town of Kane; and also by a second mortgage 
on the other estate of the company, said mortgage to be made 
to trustees, and to contain provisions for the release of the 
mortgaged' premises, in the case of sale, on the payment to the 
trustees of the proceeds, of not less than one fourth of the 
purchase money, or of the securities received therefor. It 
was also resolved to offer the bonds to the stockholders at the 
rate of seventy-five cents on the dollar. The foregoing au- 
thorizations are recited in the raorto'ao'e. * * * TUe 
master is of the opinion that the mortgage is within the terms 
of the supplement to the charter of the company, already re- 
ferred to at large, and therefore valid." 

As to the sale of land to the mining companies, " Tliere 
were certain portions of the lands of the McKean and Eik 
company interlaced with lands belonging to other parties, 
some of which latter Gen. Thomas L. Kane had purchased 
and obtained rights to purchase, and which were known to 
contain limestone and outeroppings of coal. On the 11th day 
of May, 1865, at a meeting of the directors of the McKean 
and Elk company — called toconsider the propriety of placing 
a portion of the lands of the company lying in Johnson's Eun 
Coal Basin in two coal companies about being formed, one 
to be called the Erie Mining Company, the other the New 
York and Erie Mining Company — Gen. Kane attended, and 
it was proposed to start these organizations with each about 
300,000 acres of land, of which it was thought the McKean 
and Elk company could furnish nearly one half, the remain- 



236 Laches. 

der to be farnislied by the parties owning very valuable coal 
lands, adjoining lands of the McKean and Elk company. 
' The board believing the interests of our stockholders would 
be promoted by these companies being organized, it was, on 
motion, resolved that the proposition be accepted on the 
terms to be agreed upon by the committee on real estate.' " 

" On the 7th of JS'ovember, 1865, it was resolved by 
the directors to make those sales to the two mining 
companies, and to receive in paynient therefor, shares of 
the capital stock of tiibse companies, and that one half 
the stock thus received in payment should be transferred 
and paid over to Samuel Mason and Edward F. Gay, trust- 
ees of the first mortgage, upon their executing proper 
releases of the land sold. The conveyances were subsequently 
made and tlie stock received. The entire stock of the mining 
companies was distributed to the McKean and Elk company, 
and to the private owners, in proportions corresponding with 
the lands contributed by them, respectively, to the companies. 
The lands conveyed to said mining companies were so inter- 
laced with others, not belonging to the McKean and Elk 
company, as to be incapable of being worked to advantage, 
and were without outlet, isolated and practically valueless, 
unless incorporated with the other adjoining lands. This 
transaction is not charged in the bill to have been fraudulent 
or intentionally wrong; and the defiendants claim, through 
the answer of the McKean and Elk company, that the trans- 
action was a fair one, advantageous to that company, and 
that it was approved by the body of the stockholders. * * * 
The mining com.panies appear to have been formed at about 
the time the Philadelphia and Erie Ilailroad was opened for 
business, and were no doubt looked to as a means of develop- 
ing the mineral lands which were conveyed to tliem, and of 
yielding to the McKean and Elk company a full share of the 
wealth which the lands were supposed to contain. 

"It is apparent from the evidence that the transaction in 
question was explained to and approved by most of tiie stock- 
holders of the McKean and Elk company, though the master 
does not find any evidence that Mr. Watts was present, or 
that he gave in his assent. Whether Charles E. Anspaoh was 
then a stockholder, does not clearly appear, though he became 



Watts' Appeal. 237 

one some time in the month of ISTovember, 1865. Neither of 
tlie other plaintiffs became.stockholders until some time after- 
ward. The plaintiffs have not proved a want of good faith 
on the part of the directors of the McKean and Elk company 
in the transaction, nor that the directors were, in any event, 
to acquire personal gain beyond that which might come to 
tliem as stockholders, and in common with all the others. It 
is quite possible, however, that there may have been an error 
of judgment about it, wiiich h3,s been rendered most apparent 
by subsequent experience; but if that be so, it was an error 
in which the body of the stockholders participated. * * * 
The stock of the mining companies was believed to be valua- 
ble when received in payment for the lands sold to those com- 
panies, with prospects of considerable increase in value at no 
distant day. The plaintiffs substantially affirm thus much in 
their bill, when they give the directors' estimate as to the 
stock. It was at that time certainly equivalent in value to 
the land convej'ed by the company, or thereabouts, for the 
shares of stock had been apportioned according to the values 
of the lands which constituted the capital of the mining com- 
panies, and were issued to the respective vendors of the lands 
accordingly. If the stock thus taken has since depreciated in 
value, or even become worthless, without willful neglect or 
wrongful misconduct of the directors of the McKean and Elk 
company, yet those directors are not required by the charter 
of the company to become guarantors of the ultimate value of 
the securities which they are authorized to receive in payment 
for lands sold; nor are they individually liable for honest mis- 
takes of judgment in relation to present or future value of 
the securities taken in paj'ment. 

" Tiie master is not aware of any ground on which he 
would be justified in reporting either that the sale was made 
without authority of law, or that the directors, individually, 
should account and pay to the pliiintiffs in respect of it. 

'•The lands of the mining companies w^re sold for taxes in 
June, 1870, and bought in at the treasurer's sale by Gen. 
Kane, under previous arrangement, which has since been put 
into the form of an agreement. By the terms of that agree- 
ment. Gen; Kane holds the lands which belonged to those com- 
panies before the treasurer's sale in trust for and to convey 



238 Laches. 

tliem to said companies respectively. So that if those land* 
were part of the most valuable mineral lands of the McKean 
and Eik company, as averred in the bill, the stock of the 
mining companies held by the McKean and Elk company 
must still possess value." * * * 

As to tlie public sales of land: " There are upward of thirty 
persons interested as pnrchasers under the sale of October, 
1868, and those which followed it upon the same terms, who 
had paid for and taken conveyapces of the land so purchased, 
according to the terms of sale, but who have not been made 
parties to the bill." * * * 

"The opening of the Philadelphia railroad, whilst it had 
enhanced the value of the lands, had not caused them to l)e 
immediately salable. The only sale made for cash after its 
opening was to Jackson Shultz in August, 1867, for about 
9,000 acres, at $6 per acre, the minerals underlying being 
reserved; he established a large tanner}', but would not have 
bought if the railroad had not been opened; it appeared that 
tiie other lands could not be sold in a reasonable time for 
prices satisfactory to the stockholders. On the 10th of Feb- 
ruary, 1868, the directors submitted to them a report, advo- 
cating a conversion of the stock and bonds into the land itself 
by such stockholders as might desire to do so; this was unani- 
mously adopted. The land was immediately divided into 
suital.)le parcels, having regard to their character and value, 
and maps, etc., prepared, showing the location of each ])arcel 
and its position relatively to mineral, timber and other ad- 
vantages; this preparation showed great labor and care. At 
a special meeting of the stockholders. May 12th, l.S(;8, the 
plan was recommended by a committee of the directors, who 
made an elaborate report on the subject. Tlie report was 
ordered to be printed and a copy sent to each stockholder; 
the meeting adjourned for two weeks. The report con- 
tained a valuation of the land which, after deducting an 
amount sufficient to pay the bonds, other liabilities, and leav- 
ing a cash balance, showed that, "the value of eacii share of 
stock or its purchasing power " would be $20.44. The pur- 
chase money was to be payable in cash, or in the mortgage 
bonds of the company, and stock in the following proportions; 
80 per cent, in stock,, 7 per cent, in first mortgage bonds or 



Watts' Appeal. 239 

casli, 8 per cent, in second mortgage bonds or cash, and 5 per 
cent, in cash; any of the payments conld be made in cash. 
At an adjounied meeting of the stockholders, May 29, 1868, 
the plan was approved, and they resolved that the directors be 
authorized to sell the lands to the stockholders, or anj' other 
persons who would buy on the conditions of the plan before 
the next July loth; that the bondholders be requested to agree 
to release the lien of the mortgages on any lands sold on the 
terms mentioned in the resolution; that if the bondholders 
would not agree to release, or the whole of the lands should 
not be taken, the directors were authorized to sell the lands 
at public sale in Philadelphia on the third Tuesday of the 
next October, after notice by publications specified in the res- 
olution and in such manner in addition as should be calcu- 
lated to give full information. All the shareholders did not 
agree to the plan and the sale was held at the Philadelphia 
exchange on the 20th of October, 1868. The terms were cash, 
or 36 per cent, of the purchase might remain secured on the 
premises sold, payable in five annual installments; 62 per cent, 
in the company's stock at $6 per share, and 2 per cent, cash to 
be paid when the land was struck off; any of the payments 
might be made in cash. Purchases were made by stockhold- 
ers only and amounted to 28,000 acres for $342,617, of which 
2 per cent, was paid in cash and the remainder in the mortgage 
bonds of the company. On the22d of October the directors 
authorized the president and treasurer to sell the remainder 
of tlie land, at the minimum price and on the terms proposed; 
18,000 acres were sold to the stockholders, the prices aggre- 
gating about $160,208. 

" By this plan, while the purchasing power of the stock was 
reduced from $20.44 to $6 per share, the minimum prices of 
the lands offered for sale were reduced in corresponding pro- 
portion. It was believed that, by reducing the minimum 
prices to correspond as year as practicable with the prices at 
which similar lands near to or adjoining those of the McKean 
and Elk company had then recently been sold at private sales, 
persons who were not stockholders might be induced to pur- 
chase at this public sale. Tracts of land were sold at various 
prices, the average of which was about $11.25 per acre. Pur- 
chasers paid the 2 per cent, in cash, surrendered their mort- 



240 Laches. 

gage bonds and stock, and received conveyances fmm t' e 
company, discliarged from the lien of the mortgages, and tlie 
mortgage debts and outstanding sliares of stock were coire- 
spondingly reduced, before tiie bill in this case vi^as filed, 
* * * If it were conceded that the terms of sale were thus 
uneqnal — and to that extent unfair — :\vould the concession 
justify either decree for which the plaintiff's liave prayed in 
that behalf? It might have furnished a ground for setting 
the sales aside, or an injunction against the consummation of 
them, remedies which must be sought before the price was 
paid and deed of conveyance delivered; but it is difficult 
to see that the sales were for that reason void, and could be so 
decreed upon complaint made eighteen months afterward. 
The bill was not filed until April, 1870. 

"As to a decree that the directors do individually pay to 
the plaintiffs their due proportion of the value of tlie lands sold, 
and that they pay the taxes assessed and due npon the land, 
that would really be bnt a decree for individual damages, 
which are not recoverable in equity. The directors appear to 
have acted in this affair, as in others already noticed, at the 
instance of and in conjunction with the stockholders, and 
within the chartered powers of tlie corporation. The master 
is unable, therefore, to recognize that the directors have in- 
curred individual liability in respect of the sales complained 
of. * * * 

" The master has been unable to find any proof that either 
of the plaintifi"s offered or even desired to purchase any of the 
land at the October sales. Afterward, in May, 1869, Charles 
E. Anspach, signing for himself and others, agreed to take five 
of the remaining sections, on the terms of the sales in Octo- 
ber, but he did not comply with his agreement. It would 
appear from all the evidence taken together, that whatever 
may be the intrinsic value of the lands, they brought a fair 
market value; and if any particular tract or tracts were sold 
at a sacrifice, the fact has not been established bv proof. If 
the prices at which other lands in the same neighborhood 
were sold, or the price of that sold by the company to Jack- 
son Shultz, or the market value of the stock of the company 
at that time — each share representing one acre at least— is 
taken as a criterion of value of the land sold in October, it 



Watts' Appeal. 241 

Will be found in either case that the prices then obtained 
may well be regarded as fair market prices." * * * 

The master then went into a calculation to show that the 
results of the sales did not produce injury to the plaiiitijTs. 

"There is still the objection contained in Sec. 32 of the bill, 
tliat tlie directors became purchasers at tlie public sale in Octo- 
ber, 1868, 'upon such terms and conditions as lliey them- 
selves had prescribed.' The master is of the opinion, in view 
of the facts already stated, that the terras and conditions of 
the sale, and the sale itself, should rather be regarded as hav- 
ing been prescribed by the stockholders, and that the duties 
of the directors in relation to it were ministerial only." 

As to the buildings: "It is claimed in the ans\f'er that' the 
buildings complained of were erected for the purpose of stim- 
ulating sales of the land?, and that the work was done witli 
the full knowledge and approval of the stockholders, in an- 
nual and special meetings assembled; that the hotel and build- 
ings were erected at the town of Kane, under a promise of 
the Pennsylvania Railroad Company (lessees of the Philadel- 
phia and Erie), to make that a stopping- place for their ti-ains 
and the site of their machine and work shops, if thoy were 
finished in accordance with a certain plan; before that was 
done, there were no accommodations for persons visiting tlie 
lands; that they were authorized to be built in 1865, but not 
finished until 1868, being several times stopped for want of 
funds; and the stockholders were from time to time notified 
of the progress of the hotel, and appealed to for contributions- 
of funds to complete it; that during the, presidency of Mr 
Watts, the company became possessed of a saw mill. A new 
one was erected with a view to furnishing the timber for the 
hotel and buildings, and to showing the company's resources 
in timber, and thereby encouraging sales. * * * The 
real question, therefore, relates to the power of the McKean 
and Elk company to erect the buildings. 

" The averments of the answer appear to be supported by 
the evidence in relation to the buildings, and the motives for 
erecting them. The contest has been chiefly carried on con- 
cerning the hotel, which appears to have cost about $60,000. 
The cost of the other buildings doe? not appear in the evi- 
dence; and it is inferi-ed, from what little lias been said of the 
VOL. VIII — 16 



242 Laches. 

dwelling-lioases, that they were erected in part for tlio use of 
employes of the company, and at no great expense. 

" If it is trne tliat the company was autliorized by its charter 
to erect a hotel upon its land, then the master would not re- 
port that it was injudicious to erect. the one in question; for 
if it has drawn to the same immediate locality a railroad sta- 
tion, depot, work shops, and a machine shop, and formed the 
nucleus of the growing town of Kane — on the line of the Phil- 
adelphia and Erie Railroad— it can hardly be called an inju- 
dicious improvement to stimulate sales of the lands. And it 
has not been' shown that stockholders have been injured by it, 
for the company still owns the hotel, and the evidence fur- 
nishes no reason to conclude that it is not worth all it cost. 

" The directors acted in this matter under a belief that they 
were authorized by the charter, and still more directly by the 
supplement of March 16, 1867, to improve the property of 
the company in the manner they did. Such also appears to 
have been the opinion of the principal plaintiff in this case; 
for it is in proof that Mr. Watts, speaking of the said supple- 
ment to the charter, said to one or more of the directors, 
' This, gentlemen, is just what you want. Yon can do any- 
thing under this you please.' Neither of the other plaintiffs 
was a stockholder when the work was undertaken. * * 
* The master is of the opinion that the hotel was not 
such an improvement as the company was authorized to make. 
It has appeared to him that both Mr. "Watts and the directors 
were mistaken — but fairly and honestly mistaken — in their 
construction of the power conferred by the supplement which 
authorized the borrowing of money ' for the purpose of im- 
proving and developing the lands of the said company, and 
for all other purposes of said corporation;' and that the 
phrase, ' for all otlier purposes of said corporation,' is referable 
to such purposes as were justifiable under the charter as it 
stood before the supplement was passed. * * * 

''The master has been unable to find evidence of objection 
on the part of any stockholder other than Mr. Watts, prior to 
the institution of this suit, to either of the matters complained 
of in the bill. It is considered by the master that neither of 
the plaintiffd, except Mr. Watts, has shown that he has a 
status to contest the subscription to the Sunbury and Erie 



Watts' Appeal. 243 

Railroad, nor the first issne of bonds and tlie mortgage made 
to secure them; nor the erection of the hotel. They did not 
become stockholders nntil after the subscription had been 
made and settled for, and the bonds had been issued, and the 
hotel liad been authorized and was in course of erection. The 
same may be said in regard to the sales of land to the Ei'ie 
and to the New York and Erie Mining Companies which ap- 
pear to have been authorized at a directors' meeting held on 
the 11th day of May, and the terms of sale concluded on the 
5th day of November, 1865. Hence, the master considers 
that Mr. Watts is the only one of the plaintiffs who has 
shown a status to inquire into or contest either of those trans- 
actions. It may be important, then, as bearing upon the 
questions of laches and limitations — urged for the defendants 
— to know what was Mr. Watts' course of dealing with the 
several matters complained of prior to the commencement of 
this suit. The following facts are deduced from the evidence, 
as bearing upon this branch of the case." 

The master then recapitulates the facts of Mr. Watts' dis- 
satisfaction with the railroad subscription, with the mode 
proposed to raise money to pay, occurring ten years before 
filing the bill ; that first mortgage bonds were issued seven 
years before filing the bill, Mr. Watts then asserting that the 
measure was not within the corpoi'ate powers of the company; 
that he knew that the other stockholders and directors differed 
from liim and that they were managing the corporation in 
accordance with their own views; and that he know of various 
other matters of which he complains in the bill, at times con- 
siderably anterior to filing the bill; that whilst protesting 
against many of tiiose things of which he complained, he took 
no otlier steps to arrest them; that he saw and had knowledge 
of the improvements being made, and of many of the expend- 
itures complained of, without making objections within a 
reasonable time, in some cases not until the institution of • 
tiiese proceedings. 

" The master is of opinion that it was the duty of Mr. Watts 
— if he meant to contest the subscription to the Snnbury and 
Erie Railroad, or either of the issues of bonds, or the mort- 
gage made to secure them, or either of the sales of lands, or the 
erection of the hotel or of the saw mill — to make his appli- 



1-1 



244 Laches. 

cation to a court of equity witliont unnecessary delay. And 
further, that the delay which preceded the commencement of 
this suit — regarded in connection with the lar<;e snms of 
money invested by directors and stockholders of tiie company, 
as well as by third persons in the intervening time, and upon 
the faith that the proceedings of the company were legal — 
has been sufficient to warrant a denial of relief to the plaintiffs 
in a court of equity. The plaintiffs' duty to proceed at an 
earlier day was, in the view of the master, no less to the 
directors and other stockholders of the company — who con- 
templated investing their own money in large sums, incurring 
heavy expenses, and assuming new relations to tlie property, 
in the belief that they were acting by due authority and for the 
general good — than to third persons who were to enter into 
contracts and invest their money also, upon the faith of the 
legality of the company's acts. The Various periods of delay 
between ten years as the longest, and eighteen months as the 
shortest, were surely long enough, under the circumstances of 
this case, to raise a counter equity against the plaintiffs. And 
it will be remembered that the rule, that a party guilty of 
unreasonable delay in the enforcement of his rights thereby 
forfeits his claim to equitable relief, is more especially appli- 
cable to cases in which he lies by until other parties have in- 
curred expenses, invested money, or entered into relations or 
engagements of a responsible or burdensome character." 

The master reported that in his opinion the plaintiffs' bill 
should be dismissed*, he reported also the form of a decree in 
accordance with his opinion. 

The plaintiffs filed exceptions to the report. 

The court at Nisi Prius (Williams, J.) overruled the ex- 
ceptions, and decreed that the bill be dismissed. 

The plaintiffs appealed to the court in banc, and in a num- 
ber of specifications assigned the decree for error. 

S. G. Thompson and H. M. Watts, p. p., for a]>pellants. 
— The subscription to the stock of the railroad company was 
not within the powers conferred by the charter, and to such 
powers the corporation was restrained: Coleman w. Eastern 
Co., 10 Beav. 15; Solomons v. Laing, 12 Id. 252; Taylor v. 
Chichester c& M. Bailroad Co., Law Eop. 2 Exch. 370. The 



Watts' Appeal. 245 

charter does not authorize the corporation to execnte a mort- 
'^age ; it therefore could not do so: Cormnonwealth v. Erie & N- 
E. Railroad Co., 3 Casey, 339. The act under which tlie sec- 
ond mortgage was made, authorized the borrowing money to^m- 
prove and develop the lands; the mortgage was authorized by 
the stockholders to discharge the present indebtedness, and pro- 
vide for future obligations; it was therefore ultra vires. The 
lands w^re conveyed to the corporation under the condition 
in the cliarter tliat there should be an annual dividend; when 
that failed the land owner had the right to have his stock can- 
celed, and the land reconveyed to him: Pitts. c& C. Railroad 
Co. v. Stewart, 5 Wright, 55; Turnpike Co. v. 'Wallace, 8 
Watts, 316. Neither was there power to sell the lands to the 
mining companies, and take in payraeat their stock, and thus 
deprive tliemselves of the means of carrying out the objects 
of tlieir charter: Bedford Railroad Co. v. Bowser, 12 Wright, 
30, Tlie plan for the public sale of the lands gave a pref- 
erence to shareholders who were creditors of the company, and 
was in violation of the rights of the others: Reese v. Bank, 
7 Casey, 79. The directors were liable individually for in- 
jurious acts or omissions which they did not labor fairly to 
avert: Kane v. People, 8 Wend. 203; Robinson v: Smith, 3 
Paige, Ch. 222; Koehler v. Iron Co., 2 Black, 715; Percy 
v. Milander, 3 Louisiana, 568. If the act is clearly ultra 
vires, the director is liable, though acting honestly: Spering^s 
Appeal, 21 P. F. Smith, 11. 

PI. G. Clay, J. G. Johnson, G. W. Biddle and J. A. Clay, 
for appellees. -^-Directors are liable only where they have 
been guilty of some fraud on the corporation or connived at 
it in others: Spering's Appeal, 21 P. F. Smith, 11; Hodges 
V. N. E. Screw Co., 1 R. I. 312; Calhoim's Estate, 6 Watts, 
185; Neff's Appeal, 7 P. F. Smith, 91; Konigmacher v.Kim- 
mer, 1 Porina. R. 215; Eyster's Appeal, 4 Harris, 372; Dun- 
das'' Appeal, 14 P. F. Smith, 325; Knight v. Lord Plim»uth, 
3 Atkyns, 480. The plaintifts have been guilty of such laches 
as prevent theqi from obtaining relief: Graham v. Birken- 
head Railway Co., 2 Maen. & G. 146; Ffooks v. Railway 
Co., 19 Law & Eq, 7; Cooper v. Hublooh, 30 Beav. 162. 
Protects alone are not sufficient: Clegg v. Edmondson, 8 DeG., 



246 Lachfs. 

Macn. & G. 787; Gr. West. Bailway Co. v. Oxford, 3 [d. 
318; Peabody v. Flint, 6 Allen, 57; Fuller v. Melrose, 1 Id. 
166; Hilton v. Granville, 1 Craijw & Phil. 292; Learning v. 
T^ise, 23 P. F. Smith, 173; Ifegley v. Lindsay, 17 Id. 226; 
Ashhursfs Appeal, 10 Id. 290. Tiie primary duty of the 
company was to sell their lands; unless snch rond as the Sun- 
bury & Erie Railroad were built this conld not be accom- 
plished; the power to subscribe forthe stock was necessarily in- 
cidental. The act of 1852 gave this power; being an enabling 
public act, It was not necessary that the stockholders should 
accept it, and it was a general law when this company was in- 
corporated: Brown v. Commissioners, 9 Harris, 37; Com- 
monwealth V. Slifer, 3 P. F. Smith, 71; Commonwealth v. 
Montrose, 2 Id. 391. The company having authority to con- 
tract debts, the bonds are good, though the mortgages were 
unauthorized: McMasters v. Reed, 1 Grant, 47; Common- 
wealth V. Perkins, 7 Wright, 402. A purchaser of a bond 
has the right to presume that every prerequisite to give it 
force has been complied with: Commonwealth v. Pittsburg, 
10 Casey, 520. A power in a corporation to purchase real 
estate implies a power to sell and mortgage: Jackson v. 
Brown, 5 Wend. 590; Angell & Ames on Corp., 200; Barry 
V. Merchants^ Exch. Co., 1 Sandf. Ch. 280; Brady v. Meyer, 
1 Barb. 584; Curtis v. Leavitt, 15 N. Y. 9; Leavitt v. Blatch- 
Jord, 17 Id. 521; Barnes v. Ontario, 19 Id. 152; Fay v. No- 
ble, 12 Cash. 1; Davis v. Meeting House, 8 Mete. 321; 
WhiteWater Canal Co. v.Vallette, 21 Howard, 414; Strauss 
V. Eagle Ins. Co., 5 Ohio, 59. A power to borrow implies a 
power to mortgage: Susquehanna Bridge Co. v. Ins. Co., 3 
Md. 305; Biohards v. Memmac Co., 44 IST. H. 127; S. P. 4 
Mete. (Ky.) 199; Leggitt v. N. J. Bank Co., 1 Saxton, 541; 
Gordon v. Preston, 1 Watts, 385; Zane v. Kennedy, 23 P. 
F. Smith, 182. A director or officer of a corporation who is 
its creditor, may purchase its property : Murray v. Yander- 
bilt, S9 Barb. 157; Mickles v. Bochester Bank, 11 Paige, 119; 
Worcester Turnpike Co. v. Willard, 5 Mass. 80; Middlesex 
Turnpike v. Swan, 10 Id. 384; Ashhursfs Appeal, 10 P. F. 
Smith, 290. 

Mr. Justice Goedon delivered the opinion of the court, Oc- 
tober 12, 1874. 



Watts' Appeal. 247 

In tlie absence of a demurrer, we treat as waived those 
objections to the bill which are urged on the ground of mul- 
tifariousness, both as to the parties and tlie relief prayed for. 

Exceptions of this kind are but technical, and if brought to 
the notice of the court in a formal manner, and at a proper 
time, opportunity is furnished to the plaintiff to meet thorn 
by amendment. If, however, the defendant does not see 
proper thus to bring them to the notice of the court, it wil 
be presumed that he elects to proceed with the case on its 
merits. 

Besides this, the court generally has power, by its decree, 
to meet and obviate any difficulties that may arise from causes 
of this kind. We therefore proceed, at once, to the investi- 
gation of tlie charges made against the directors of the Mc- 
Kean and Elk Land and Improvement Company, who are the 
real defendants in this case. 

The plaintiffs, shareholders of the stock of this company, 
clitirge the directors with a mismanagement of the affairs of 
this corporation, so obvious and gross, and so willfully per- 
versive of tiie charter thereof, as to amount to a fraud upon 
their rigiits and interests. It is for cause of this kind that 
our intervention as a court of equity is demanded. 

That a bill may be maintained against directors personally, 
under circumstances such as above alleged, is well established 
by many authorities. Among the most recent we cite the 
ease of Spering^s Appeal. 21 P. F. Smith, 24. 

Not only may the shareholder thus call the directors to a 
formal account where he has been fraudulently deprived of 
money justly belonging to him, but he may also, under proper 
circumstances, interpose for the protection of the company 
itself: Gravenstine's Appeal, 13 Wright, 310, Thompson, J. 

Having thus disposed of the technicalities incumbering the 
c.tso, we proceed to examine the specific charges brought by 
the plaintiffs against the defendants, and upon the truth or 
falsehood of which this case must be determined. 

The directors, defendants, are charged with the commis- 
sion of the following acts, either wholly without warrant or in 
excess of the powers vested in them by the charter of incor- 
poration, viz.: 

1. Subscribing for sixteen hundred and twenty-five shares 



248 Laches. 

of tlie Sunbury and Eric Eailroad Company's stock, to be paid 
i'or by one hundred tiioiisand dollars in cash, and tive thousand 
acres of land. 

2. Execnting two mortgages upon tlie land of the company, 
one dated February 1, 1863, and the other June 22, 1867; the 
lirst to secure the payment of bonds, therein recited, to the 
uinonnt of two hundred thousand dollars, and the second to 
secure the payment of like bonds to the amount of two hun- 
dred and sixty-seven thousand dollars. 

3. , Exrcuting, in the year 1865, deeds for a large body of the 
company's land, to the New York and Erie and the Erie 
Mining Companies, and taking in exchange therefor 11,750 
shai-es of their stock. 

4. Selling 35,600 acres of the company's land to tho stock- 
holders, including themselves, to'be paid for in the manner 
following, viz.: sixty-two per cent, in the stock of the corpo- 
ration, thirty- six per cent, in the bonds thereof, and but two 
per cent, in casii. 

5. Erecting saw mills, a hotel and other buildings upon tho 
corporate property. 

In this brief of the plaintiff's specifications of the misdeeds 
of the defendants we havq not included one or two of minor 
import, which we may now notice and dispose of. 

It is alleged tliat Mr. Watts has persistently since Novem- 
ber, 1859, endeavored to purchase from the directors so much 
of the lands of said company as he might justly be entitled 
to, offering to pay for the same in shares of its stock, and that 
they have as persistently refused to accede to his oH'ers. 

It is further alleged that they refused a bid of twenty-five 
dollars per acre from one Mr. Putman for four thousand acres 
of said lands. 

In the first of these alleged cases, we are not sufficiently 
informed, from the evidence, to determine whether the direct- 
ors did well or ill in rejecting these offers. 

In the second case, the evidence leaves it very doubtful 
wheiher any such offer was made with the lonajide intent to 
purcliase. ' 

Admit, however, that this offer was made in good faith, 
and that in both cases tho propositions were imprudently 
rejected, yet, as they were matters resting wholly in the judg- 



Watts' Appeal. 249 

ment and discretion of tlie directors, they are beyond our 
power of review. Tiieir conduct in tlie premises may have 
been unwise, bat it was not legally reprehensible. 

Without regard to the order of the charges as contained in 
the bill, we proceed to discuss the items thereof as they pre- 
sent themseh^es to our mind in apparent legal sequence. 
First, then, had the directors power to contract debts for the 
company, and to execute bonds and mortgages to secure the 
payment thereof? In the case of the Commonwealth ex rel. 
Eeinboth v. The Cowicils of Pittsburg, 5 Wright, 28i, Jus- 
tice Strong says: "The power to execute and issue bonds, 
contracts or other certificates of indebtedness, belongs to all 
corporations, public as well as private, and is inseparable from 
their existence." If this be good law, and we think it is, the 
question as to tiie power of the directors of the McKean and 
Elk Land and Improvement Company to contract debts and 
issue the bonds of the corporation therefor, would seem to be 
settled. The very power to contract necessarily involves the 
cognate power to create debt; and a corporation without such 
power would be a body watliont life, utterly effete and worth- 
less. If, however, it be objected that one may have the 
power to contract debts binding upon his principal, and yet 
not have the power to bind liim by deed, it is answered, tiiese 
directors have such power under the charter. They have the 
power to d spose of the whole of the company's lands, by deed 
or lease, and as they possess this superior power, the minor 
one of the mortgaging those lands npon a proper occasion, and 
for a proper debt, may be inferi'ed: Lancaster v. Dolan, 1 
Hawle, 231; Gordon v. Preston, 1 Watts, 385. 

The inquiry, then, is not as to the general authority of these 
men to contract debts on tlie credit of the company, and to 
provide for tlieir payment by issuing of bonds secured by 
mortgaa'e, but it is rather, had they the power to contract the 
specific debts complained of? If not, was the contracting 
thereof so clearly beyond their powers that we must impute 
to them the commission of a willful wrong or a carelessness 
so obvious to ordinary discretion that it amounts to the same 
tliinj>? 

There is nothing in the evidence whieli tends to sliow that 
what these directors d'id in the premises was intended to 



250 Laches. 

benefit tlieinsolves beyond or above tlieir fellow sliareholders, 
or to implicate them in any actual fraud. Under such a state 
of facts, we will not consent to charge thein with the results 
of such ordinary errors of judgment as men of common pru- 
dence miglit fall into, in the conduct of their own business. 

The status of directors, and the amount of judgment, care 
and skill required of them, is so clearly set forth in the opin- 
ion of our brother Sharswood in Spering^s Appeal, 21 P. F. 
Smith, 11, that we are relieved from the necessity of further 
investigation or elaboration of these points. 

From this case we learn that directors are mandatories only, 
and as such held to but ordinary skill and diligence, and are 
not responsible to their fellow corporators for the want of 
judgment and knowled^j;e. They are personally liable only 
where they are guilty of fraudulent conduct or of acts clearly 
ultra vires. 

"With this light upon the subject it is not difficult for us to 
determine that the charge of the misappropriation by the di- 
rectors of the funds of the company by the erection of saw 
mills, a hotel and other buildings, can not be sustained. For it 
will be observed oar inquiry is limited to the question of the 
power to make such improvements. If they had such power, 
we, as already intimated, will not sit to determine whether or 
not they erred in judgment in respect to the character or cost 
thereof. 

Now this corporation had, inter alia, these very general and 
necessary powers, to wit: '• To aid in the development of the 
minerals and other materials " in and upon the lands, and " to 
promote the clearing and settlement of the country." 

We know of no other material upon these lands more abun- 
dant or more obviously requiring development, than the tim- 
ber, which covered them in an almost unbroken forest., 
Neither can we conceive of anything bettor calculated to de- 
velop this kind of material than saw mills. So we regard a 
hotel, of some kind, in so large a territory of wild lands, as 
not only a convenience, adding greatly to the settlement of 
country, but a necessity. 

Conceding, however, that we have misread the charter, and 
■ that the defendants exceeded their power in the erection of the 
buildings, yet, as none of the plaintiffs or others of the share- 



Watts' Appeal. 251 

holders objected during the time of their erection, nor until 
tlie filing of this bill, some two years after the completion of the 
last one, the hotel, it would indeed be a very strange kind of 
equity that would compel the directors to account for moneys ex- 
pended in an enterprise in which the plaintiffs, by their silence 
if nothing more, acquiesced. Furthermore, it is not alleged 
that the hotel, the building concerning which the greatest 
complaint is made, has not accomplished its purpose; that the 
company did not derive all the advantages which wei-e ex- 
pected, or that the building is not worth all it cost. As, there- 
fore, no loss has been wrought, no account can be taken. 

With regard to the subscription to the stock of the Sun- 
bury and Erie Railroad Company, we are inclined to tliink 
that this act, though perhaps not wholly beyond the powers 
conferred by the charter, was at least in excess of that author- 
ity. The subscription amounted to one hundred and sixty- 
two thousand dollars; the stock was worth only about thirty- 
six dollars in the hundred, lience there was in effect a dona- 
tion to the railroad company of about one hundred thousand, 
dollars, but this amounted to as much as the entire capital 
stock authorized by the act of Assembly to be raised for im- 
provement purposes. 

Notwithstanding this, the question remains, was this act so 
clearly in excess of their authority that the directors were 
bound to know and avoid it? Because, if, while thes6 men 
were acting honestly, and for what they esteemed the best in- 
terests of the company, they were not willfully perverting their 
])Owers, but only misjudged the same, we can not consent to 
compel them to account personally for the moneys thus ex- 
pended. In order to arrive at a correct conclusion in this 
Triatter we must consider all the circumstances by which they 
were surrounded. 

The powers already noticed, to aid in the clearing and set- 
tling of the country, as well as the further power to build not 
more than twenty miles of railroad, were conferred upon the 
company in order to make the main object of its organization, 
i. e., the sale of its lands, at remunerative prices, feasible. 

This property lay in a section of the State remote from any 
large stream, and some forty or fifty miles from the nearest 
railroad. Even the common roads were few and almost im- 



252 Laches. 

passable. Under snoli circumstances these lands were, so far 
us a prcsont market valne was concerned, not worth the taxes 
annually assessed on them; yet they contained within tl.eni 
valuable minerals and were clothed with forests of excellent 
timber. But these were useless without the means to trans- 
port them to market. Wlien, therefore, the directors of the 
Sunbury and Erie Eailroad proposed, upon a subscription to 
their stock of one hundi'ed and sixty-two thousand dollars, to 
adopt a route for their road which would carry it through tliu 
heart of the McKean and Elk Land and Improvement Com- 
pany's land, it is not surprising that not only the directors but 
also the stockholders thereof should have agreed to the proposi- 
tion. That they had the power to build both common roads 
and railroads, or to aid others to a reasonable extent in so do- 
iny;, is beyond doubt. Under such circumstances, their sub- 
scription, though larger than was warranted, looks to me more 
like a mistake in judgment than a willful perversion ot ]iower. 
But passing this we come to another phase of this case, which 
we regard as definitive. This subscription, as before observed, 
was made for the honest purpose of benefiting the company, 
it was not made in haste, but was some four _year8 in jirocess 
of consummation. In the meantime it met the api)roval of 
the stockholders at their meeting, May 16, 18(!2. There 
was, tlierefore, am]>le notice to all concerned, and ample time, 
for protest and the intervention of the preventive process of the 
law. Without any procedont iuithority we might woll corn's 
to the following conclusions: fii'st, that when an act done by 
directors is in excess of their authority, yet has been done 
with the hoaajide intent of benefiting the corporal ion which 
they represent, and a shareholder knowing thereof di>cs not 
dissent within a reasonable time, his assent to the act will be 
presumed, and he will be estopped from gainsaying it. For 
his silence, when he ought to apeak, is such a neglect of duty 
toward those who are gratuitously serving his company,'tliat 
he is entitled to no consideration in a court of justice. 

Second. That when the act complained of is to be followed 
by a large expenditure of money, the shareholder should not 
only file his protest within a reasonable time, but should fol- 
low up the same l)y active preventive means. For it is ob- 
viously against good conscience, that one having the power 



Watts' Appeal. 253 

to prevent it slioald stand by and see his associates expend 
money that may result to his benefit, and afterward chaige 
thetn therewith. He may not thus pocket the gain resulting 
from his delay, or thus wait in order to observe the result of 
the experiment, and when it fails to produce the result ex- 
pected, fall back upon his protest as a saving of his legal rem- 
edies. His neglect to act at the proper time bars his right of 
action as effectually as his neglect to protest. 

These doctrines are, however, abundantly supported by the 
authorities quoted by the learned counsel for the defendants: 
inter alia. Great Western Railroad Co. v. Oxford, 3 DeGex, 
Macn. & G. 341; Ole(jg v. Edmondson, 8 Id. 787; Aak- 
hurst's Appeal, 10 P. F. Smith, 290. 

So far as we are informed, none of the plaintiffs, except Mr. 
Watts, so much as interposed an objection to this action of 
the directors. Tliey are therefore so clearly in default and so 
obviously estopped by their neglect, that we may dismiss their 
claims without further consideration. 

Henry M. Watts, however, did interpose his dissent. He did 
so in his letter to the company dated November 19, 1859. 
Again, in his letter to John C. Cresson, president of the com- 
pany, dated 24th day of February, 1862, he reiterates the 
opinion that the subscription was ultra vires. It was not, 
however, until the 19th day of September, 1866, that he so 
much as intimated the possibility of a suit for the purpose of 
testing the action of the board in making this subscription and 
executing the mortgage. Were these expressions of dissent 
sufficient to relieve, him from the charge of neglecting the 
proper assertion of his rights until through his own laches he 
had forfeited them? 

From 1859 to 1863 this matter was in abeyance, unconsum- 
mated. He was fully informed of every step in the pro- 
gramme. He knew that in 1862 the stockholders had ratified 
the action of the directors, by authorizing the execution of 
the bonds and mortgage in order to raise the money with 
which to pay the subscription. Yet, during all this time, he 
contented himself with a mere dissent. A dissent, clear 
enough, indeed, as to the doubts and legal propositions therein 
raised, but nothing but a dissent. Under the circumstances, 
we think he did not djD all that was required of him. Had 



254 Laches, 

he at the proper tiine invoked the restraining power of the 
courts, all things would have been properly adjusted, and all 
improper actions arrested. Instead of this, he refrains frora 
this obvious course of action until the matter is fully consum- 
mated, and until he has derived every possible benefit there- 
from. He permits the experiment to proceed to completion 
before he attempts to call his fellow corporators to an account. 
Under such circumstances we could not have helped him had 
he commenced his proceedings immediately after the payment 
of the subscription to the railroad company. But his case is 
entitled to still less consideration, because he allowed no less 
than seven years to pass between the consummation of the 
transaction and the issuing of his legal process. 

Were we to hold these directors to the duties and responsi- 
bilities of trustees, yet six years would bar an action against 
them for misuse of the corporate property: Ashhursfs Ap- 
peal, supra. 

The charge relating to the transfer of lands to the New 
York and Erie and Erie Mining Companies, and the taking 
of their stock therefor, can not be sustained. Whilst we are 
inclined to think that this exchange of land for stock of com- 
panies other than their own was unwarranted, yet no harm 
has been done upon which the plaintiffs can found a bill. If 
this act of the directors was ultra vires, it is very clear their 
deed conveyed no title. All persons dealing with them for 
the lands of the company were bound to take notice of the 
extent of their powers, and if the companies named chose to 
deal with them outside of those powers, they took nothing 
thereby. It follows that, as the companj- lost nothing, the 
directors are liable for nothing. If, however, the act was 
within their powers, they did what their .judgment dictated 
as best to be done, and we can not interfere to review a mat- 
ter of discretion ; a fortiori, when the shareholders interposed 
no dissent at the time, nor until the bringing of this bill. 

With reference to the sales made in 1868, a few words will 
suffice. These sales were ordered by the stockholders them- 
selves. Payment in the bonds of the company was equiva- 
lent to payment in cash, and payment in the stock of the com- 
pany was expressly authorized by the act of incorporation. 
That the directors should be permitted to purchase was part 



Evans' Appeat.. Kuhn's Appeal. 255 

of the arrangement, and was beneficial to all parties. They 
were therefore witliin the rule asserted bv Justice Strong in 
Ashhursfs Appeal. 

The whole aifair was conducted openly and fairly; the lands 
brought good prices, much better than could have been real- 
ized at cash sales, and we can not see what good could be ac- 
complished b}' setting them aside. 

Thus, upon a careful review of all the points made in this 
case, and of the facts revealed by the master's report, and the 
paper books submitted to us by the parties, we have no hesi- 
tation in coming to the conclusion that the decree of the Court 
of Nisi Priu's was correct. 

Appeal dismissed at cost of appellant. 



Evans' Appeal, Kuhn's Appeal. 

(81 Pennsylvania State, 278. Supreme Court, 1876.) 

' Laches, within limitation period. As a general rule, a constructive trust 
as to personal rights may be asserted at any time within six years after 
the knowledge of the facts creating it; but laches, for a shorter period, 
aided by other circumstances, will bar the right. 

Delay of stockholders to assert fraud of organizers. Plaintiffs filed a 
bill alleging that they and defendants were associated in the formation 
of a company; that defendants purchased lands and sold them to the 
corporation at a price much beyond cost, concealing the price paid, 
whereby a resulting trust arose; praying for an account of the profits, 
etc. Under the circumstances of the case the bill was dismissed, on the 
ground of laches in filing it, four and one half years after knowledge of 
the facts. 

Belief sought through corporate equities. Where the bill is brought 
by stockholders, praying the payment of money not to themselves but 
to the corporation, and seeking relief through the equitable rights of 
the corporation, the knowledge and conduct of the corporation become 
essential to be considered; and the facts on which relief is asked ap- 
pearing on the minutes of the corporation, a delay of nearly six years 
amounts to an acquiescence. 

Bights intervening, pending the delay. Allowing money to be borrowed 
and judgments against the company to be obtained and their property 
sold, the facts for relief being meanwhile patent to the plaintiffs: Held, 
such intervening circumstances as made the delay unreasonable, and 
fatal to the bill. 

' Warner v. Daniels, 6 M. R. 4S6. 



256 Laches. 

Laches will bar a plaintiff against acts originally voidiible. 

Subsequent plaintiffs. The laches of parties made plaintiffs by nniencl- 

ment after the suit was commenced, considered as running up to the 

time of their seeking to become parties. 

March 1, 1876. Before Shakswood, Mkkcue, Gokdon, 
Paxson and Woodwaed, JJ. 

Appeal from the Court at Msi Prins, No. 56, to January 
term, 1870. In equit}'. 

The bill in this ease was filed March 19, 1870^ by Manliiis 
G. Evans and Hartman Kulin against Cliarles L. Borie, Henry 
P. Borie, Edward V. Maitland, Charles WisteFj Samuel 
Wood, Edward M. Hopkins, Charles P. Bayard, Edward T. 
Shaw, Joseph C. Harris, William Harris, John P. Bell, Ezra 
Bowen, George S. Fox, Camille D'lnvilliers and The Key- 
stone Zinc Company. 

On the 9th of September, 1870, an amendment to the bill 
was filed. On the 13th of December all the defendants, ex- 
cept Wood, Shaw and William Harris, filed answers. On 
the 16th of December a replication was filed. Testimony 
was taken in the cause until Jnne 15, 1872, and on the lot of 
July and the 24th of October, 1872, respectively, Charles 
Weils and H. F. Kenney, on their petitions, were allowed to 
become plaintiffs in the cause. On tlie 11th of January, 
1873, on affidavit of plaintiffs, an amendment was made, al- 
lowing the plaintiffs to add the names of Adolph E. Borie, 
George Trotter, George T. Lewis and iSTathan Bartlett, as de- 
fendants. 

The answers of Adolph E. Borie, George T. Lewis and 
George Trotter, were filed on the 30th of January, on the 
10th of February and the 17th of May, 1873, respectively. 

On the 2d of October, 1873, Edward Olmstead, Esq., was 
appointed master. His report set out the bill and answers 
much at larffe. 

The bill, which was on behalf of the plaintiffs and such 
other stockholders of the Keystone Zinc Company as should 
come in and contribute, etc., was substantially as follows: 

On the 9th of May, 1854, Charles Wister and others, their 
associates and assigns, were incorporated by the name of the 



EvAKs' Appeal. Kuhn's Appeal. 257 

Keystone Zinc Company, for mining zine ore and manufact- 
iirinof and selling zinc pa4nt in the counties of Nortliainpton 
and Lehigh. 

In March, 1864, the defendants formed the design of mak- 
ing profit fi'om hind in Blair county of whieli they had lieard 
as containing zinc ore; and they announced that they had se- 
cured lands containing zinc ore and were forming a company 
to develop them, the capital stock to consist of 200,000 
shares, at $5 per share. 

In consequence of these representations, about March 24, 
1864, Evans, plaintiff, took 1,000 shares and paid $5,000 for 
tiiem, believinjj; tliat he thus became an original subscriber; 
at the filing of the bill he still owned 300 shares. Kuhn, 
plaintiff, took 6,000 shares, and paid $30,000 for them, be- 
lieving the stock belonged to the company and the purchase 
money would go into their treasury; he still held all tlie 
stock. 

Kuhn took no receipt, but Evans and others, who subscribed 
for stock, took a receipt in the following form: 

*' Received of dollars, in full for a subscrip- 
tion to shares of stock in a company, to be hereafter 

organized under the title of the Keystone Zinc Company, 
with a capital of one million of dollars, divided into two hun- 
dred thousand shares, at five dollars each." 

Subsequently certificates for the number of shares sub- 
scribed for by the plaintiffs were received by them. 

Large sums of money were thus received by the defend- 
ants on these representations for stock; this money was in part 
paid to the owners of land, and the remainder appropriated 
to the defendant's own use and never entered on tiie books of 
the company. "Whilst taking measures to obtain these moneys, 
the defendants were negotiating for the land and taking meas- 
ures to secure them for the company which they were organ- 
izing. On tlie day Kuhn paid for his stock, C. L. Barie, act- 
ing for the defendants, obtained from Lewis, one of the 
defendants, a contract to convoy to him, Borie, two tracts of 
land in Blair county, containing, together, 186 acres, for 
$100,000. On the next day C. L. and H. P. Borie, defend- 
ants, obtained from H. B. and Gi. IN". Tatliam a contract to 
convey certain leaseholds in the same county for $50,000; 

VOL. VIII. — 17 



258 Laches. 

tliese were also secured for tlie company by tlie two Borics 
with the intention of vesting the title in the company. The 
plaintiffs averred tliat all the defendants were jointly con- 
cerned in the common object of endeavoring to make an 
illegal profit by buying lands for a company which they were 
forming at one price and selling to the company at a higher 
one. At the same time the defendants were engaged in ob- 
taining a charter and organizing nnder it. On March 28, 
1864, there was enacted an act supplementary to act of ISiH 
before mentioned, extending its provisions to Blair county. 
The company was organized by a meeting of Charles Wister 
and two others of the corporators named in the act of 1854; 
at this meeting a book for subscriptions for stock was opened 
and subscriptions were made by several of the defendants be- 
, fore any money had been paid to the company for stock or a 
conveyance made to them, and without notice to the plaintifi's 
and others to whom stock had been sold, C. P. Bayard was 
elected president, C. L. Borie, treasurer, H. P. Boric, G. S. 
Fox, E. V. Maitland, J. P. Bell and Charles Wister, direct- 
ors. Tlie defendants were affected with a fiduciary relation 
to those whose money was thus obtained, and were bound to 
pay for any stock which they took, and to put all the money 
which they received for stock into the company's treasury, 
and to buy the lands at the lowest prices without any profit 
to themselves, and every right and interest in the land boueht 
from Lewis and the Tathams belonged to tiie company. 

On the morning of the 8th of April, 1864, the day after 
the land had been paid for by defendants and the title made 
to C. L. Borie, they procured a meeting of the directors, who 
resolved to buy the land from C. L. Borie for $200,000; they 
afterward procured another meeting in the afternoon of the 
same day, at which they rescinded this resolution and passed 
one to pay Borie for the land by one hundred and ninety 
thousand shares of stock at the par value of $5 per share, that 
heing the entire stock of the company, except ten thousand 
shares. 

These 190,000 shares or the money raised by the sale of 
them, were divided among the defendants. This resolution 
actually passed to Borie and the defendants the cash pro- 
ceeds of shares already sold which were far more than all that 



Evans' Appeal. Kuhn's Appeal. 259 

had been paid for the land, and also the unsold shares, if anjj 
to fill up the one hundred and ninety thousand shares. The 
Slim actually paid for the land was $200,000. 

The defendants owned or controlled a majority of the stock 
of the company, and some of them were its directors and 
officers, and neglected and refused to take measures or to per- 
mit the company to take any measures against themselves for 
the purpose of granting the relief the plaintiffs prayed for; 
and that, therefore, no relief through the intervention of the 
company could be obtained. 

The plaintiffs prayed: 

1. That the defendants might be compelled by the decree 
of this court to pay into the treasury of the company $5 per 
share for each of said 190,000 shares of said stock so allotted 
or transferred bj' resolution of April 8, 1864, to defendants, or 
to Borie for them, with interest, deducting the sums actually 
ionafide paid for the lands so acquired for said company. 

2. Or if the court shall be of opinion that such a decree is 
more consonant with equity, might compel defendants to pay 
into the treasury of the company, with interest, all sums re- 
ceived by them or any of them from sales of said one hundred 
and ninety thousand shares, or any part of them, less what 
they paid for said lands, and might surrender all of said 190- 
000 shares which they have not so sold. 

3. That if such a course be necessary in order to enable 
the court to reach such a decree, or prepare the way therefor, 
the company might be compelled to take such steps and 
commence such proceedings against said defendants as maj' 
be or become proper or necessary for the purpose of enforcing 
against them the redress sought by this bill. 

4. Further relief. 

The bill asked for relief by reason of a trust arising by im- 
plication of law, more than five years before filing the bill; 
the plaintiffs were therefore barred by the 6th section of the 
act of April 22, 1856. 

The individual defendants answered. 

Lewis was the owner of the farm in Blair county, and had 
also an interest (with one Taylor) to the extent of one half 
in the Tatham leasehold. 

For at least a year before March, 1864, Lewis had been 



260 Laches. 

epealdng to C. L. Bor!e and Hopkins, and liad made many 
representations as to its valne. Wister had also endeavored 
to induce his co-defendant to unite with him in piirchaeing 
the lands of Lewis, the Induoements being its intrinsic value, 
and the certainty of being able to sell at an advance; node- 
termination had been readied as to tiie mode of turning it to 
profit. On March 1, 1864, Wister procured from Lewis a 
contract to sell his farm in Blair county to G. L. Borio, Hop- 
kins and Wister, the price being $100,000 with an option 
for a month to buy or refuse; the contract was secured by 
"Wister without consultation with the others, his object being 
to secure for himself power to participate in the purchase. 

While these three had this option Tatham asked Boric to 
unite in forming a company with leasehold property held by 
them; Borie said he and his associates thought of doing tliat 
witii the Lewis property, and suggested to Tatham to join 
both properties in one company; the Tatharas were informed 
tliat the Lewis property would bo put in at $100,000, the 
Tatham at $50,000, two thirds of the stock to belong to the 
owners of the Lewis land and one third to the owners of the 
Tatham land. Tathama declined this, but gave Borie by 
writing an option till April 1st, to bny their property 
at $50,000. On the 24th of March, Wister urged Borie 
to close with Lewis, assuring Borie that he, Lewis, could im- 
mediately re-seil at a profit. 0. L. Borie, for himself and 
Henry Bqrie, said he would sell at $200,000, which would 
yield $50,000 profit, the Tatham property to be included, 
though no reference had been made to that property, Wister 
believing from inquiries that he could at that price find pur. 
chasers, they intending to form a company, the land to be con- 
verted into stock. This was the only proposal made to these 
defendants, and on this they consented to join. Borie, at 
Wister's request, drew a paper to be signed by persons enter- 
ing into the project; it was as follows: 

"We, the undersigned, hereby agree to pay to Mr. Charles 
Wister or his assigns the sums opposite to our names, or a 
pro ^-ato proportion of the same toward the purchase of the 
zinc property in Blair county, embracing the entire interest 
of Mr. G. T. Lewis in a farm or farms containing 200 acres 
of ground, more or less, certificates of stock to be issued to us 
as soon as the cornpany can be organized; cash to be paid on 



Evans' Appeal. Kuhn's Appeal. 261 

execution of the deed, in the name of such party as we may 
agree upon, for a sum not exceeding $200,000." 

Borie then bought the property from Lewis. 

0. L. Boi-ie had expected tiiat,the $100,000 would purchase 
Lewis' interest in the leasehold as well as his farm, but 
Lewis declined and required that he should be paid for liis 
leaseliold interest as much as theTathams were to receive; 
this interest had not previously been referred to, and Borie 
had no right to agree ibr the others. He entered into a con- 
tract for tliis interest for himself and H. Borie intending the 
others to take it if they cliose. Wister procured signatures to 
the paper to the extent of $130,000, but it was not deemed by 
any that there was a binding contract, both because there 
were but $130,000 subscribed, and the contract was but ver- 
bal with Borie, although he had contracted in writing with 
Lewis. Borie was then unwilling to sell unless the new 
interest in tlie leasehold was included and the price increased 
to $250,000; of tliis Wister and otliers who had signed the 
paper were informed. There was then no binding contract 
aifectiniT the title bought by Borie from Lewis, except Wister 
and Hopkins, nor any supposition tlien that Borie could not 
vary his offer. One of the signers to the paper proposed that 
they should give tiie Bories and their associates forty thou- 
sand shnres of stock in the company intended to be organized 
in addition to the cash price they had agreed to pay. This 
being agreed to by Borie, he, on behalf of his firm and others 
wiio had authorized him to do so, subscribed enough to make 
up the $200,000 and to form a corporation, the capital of 
which was to be tlie land and tlie stock, to be issued to the 
owners of the property in the proportion of their interests. 
There were then added to the paper tlie names of several per-- 
Bons on whose belialf Borie undertook to sign, and the whole 
amount of $200,000 filled by subscriptions in sums of $20,000) 
$10,000 and $7,500. The names of all the original individ- 
ual defendants, except Woods, were to the paper, and also th6 
names of A. E. Borie, Trotter, Lewis and Bartlett, afterward 
brought in as defendants. At this time no one was interested 
but tliose who had signed the paper, and none of those who 
had oriLnnally sijinedwere bouud, because of the change after 
they had signed; but on the same day they ratified the 



262 Laches. 

clian.2:e. None of them supposed that the Borles, Wistcr or 
Hopidns had been their a<,'oiits. Tliey were tlieti under no 
obli|?ation to apply for a charter, and wlien they obtained it 
none were inohided but those whom the grantees of tlie fran- 
chises admitted as associates; "and, tlierefore, wlien the cor- 
poration was formed it was bound by tlie terms of tlio ]mr- 
chase, which had been settled before the contract was apjjlied 

for. 

When the Bories, Wisterand Ilopldns a,a;reed to seH to those 
about to form a corporation, there was a refusal at the cost, imd 
a demand for an advance which was accepted. There was then 
no power in anybody to require the purchasers to sell on any 
terms, and no pretense that they acted as a'^ents for any one. 
Those who bought and agreed to convey to the corporation 
agreed subsequently among themselves to contribute 10,000 
siiares to be sold and the proceeds paid to tiie company for 
working capital. The organizers of the company agreed to 
pay for the land $200,000 and 40,000 shares. 160,000 shares 
were received by the owners of the property as the price of 
giving it to the corporation, and they sold 10,000 shares of 
the 1(50,000, and ffave the proceeds to the corporation as 
working capital. Forty thousand of the one hundred and 
ftfty thousand remaining, were sold to reimburse the cash 
paid for the property. One hundred thousand shares, more 
than a year iifterward, were distributed amongst the owners 
in proportion to their rights. The larger portion of these' 
shares was still owned by these parties. Twenty-eight thou- 
sand shares were sold more than a year after the company 
was organized at the then market price; and it is impossible 
for any one claiming in the right of the corporatioTi to de- 
mand, as the property of the corporation, the difference 
between the cost of the property and the amount realized by 
the purchasers out of their stock sold, on the ground that 0. 
L. Borie and his associates bougiit as agents of the corpora- 
tion. On the 24th of March, 1864, the contract was signed to 
buy from the purchasers from Lewis. The Tathaui property 
was not included. Some of those buyers, deeming the con- 
trHCt complete, offered to sell tlieir proportion of shares of the 
stock they were to receive. They had offers to take it at the 
price named by them. These offers were without representa-. 



Evans' Appeal. Kuhn's Appeal. 263 

.tions as to capital or property or cost; all that was stated was 
that it was a zine farm; and tlie price five dollars per share. 

Neither of the plaintiffs were amongst those offering to 
buj'; those who did offer were afterward referred to the broker 
authorized to sell for all tlie owners jointly; they made their 
contract with him, paid him the money and received their 
etock. All. these were "the private acts of the individuals 
who, expecting to complete an inchoate bargain, had in antici- 
pation proposed or agreed to sell the property they wonld re- 
ceive if that bargain had been carried out. That bargain was 
never made, as has been stated. A distinct one was suiwti- 
tuted, and under it these purchasers received the stock they 
had offered 1o sell, but on very different terms from those 
anticipated when they proposed selling. They submit that 
none of them are in any tnanner liable to the corporation by 
reason of any such transaction." 

Harris, an expecting purchaser, on March 2-±th, after the 
contract of that date had been signed, supposing the transac- 
tion was settled, told Kuhn there was a zinc stock "we are 
about buying, on the market, and I think money can be made 
on it. The price is five dollars." There was no statement as 
to the location or cost of the property. They denied that 
Evans, through Fisher, made any contract by which he got any 
right to stock before March 2Sth. Fisher applied for one 
thousand shares of stock to Fox, who, supposing all that had 
been authorized to be sold had been sold at five dollars, agreed 
to sell at six dollars. Fisher accepted. Fox learning that 
tlie broker had not sold all that lie had been authorized to 
sell at five dollars, relieved Fisher from the sale, and referred 
him to Maitland. their broker, from whom, on the 28tli of 
March, he bought one thousand shares for $5,000. The de- 
fendants insist that neither the corporation nor tlie plaintiffs, 
litigating in their name, can claim relief under these circum- 
stances. 

* On the 25th of March, at a meeting of some of the owners, 
it was ascertained that some had sold their stock. 0. L. Boris 
being dissatisfied with this because it would interfere witli the 
sale of his forty thousand shares, it was agreed that all sales 
should be by a common broker, and to be made^ro rata; those 
who had sriven orders to individual owners were turned over 



264 Laches. 

to the broker, and tliroiio;l» lii»i s>ll sales were made; it was 
agreed ten thousand shares to be contributed jor-o rata should 
be sold for worliing capital; this was done and the proceeds 
paid to the corporation after its organization. It was also 
agreed tiiat 100,000 shares should be sold. Boi'ie at that 
nieetinor said that as stock could not be issued nntil after 
tiie corporation should bo organized if any were sold and 
paid for before, a memorandnm should be given to the pur- 
chasers of the fact and for that purpose the form oF receipt 
mentioned as having been given to Evans was prepared and 
the recital that the money was paid by subscription is un- 
true if implying that the money was paid on a subscription 
to a corporation. 

Arrangements were then made for procuring a cliartcr; the 
charter of 1854 being under the control of one of their num- 
ber, on their application was extended to Blair county; the 
corporators, under the act of 1854, associated witii tliein those 
who desired it, and they organized, elected officer^ and ])re- 
pared to issue stock; the purchasers of shares did not then 
know whether the company would be organized under the 
general law of 1854, allowing land to be ttiken as stock or nn- 
der a special charter. Immediately after Boric jnade tiie con- 
tract and before any sales were made, on the 25tli of March, he 
called for fifty per cent, of the cash purchase money, and on 
the next day $100,000 were paid to him, none of which was 
from the snle of stock. Kiihn, on the 24th, dejiosited with 
Harris United States certificates of debt for his stock, but none 
of his money was used for the purpose; Harris advanced liis 
own money and Kuhn's securities were not cashed nntil the 
28th; there was no agreement amongst any of the parties to 
organize a corporation and take the stock as a consideration 
for the property, less $50,000 to be raised from the ten thou- 
sand shares. Even if those who bought from Borie with in- 
tent to organize a corporation were compelled to let the cor- 
poration have the property at cost, the defendants are required 
to account to the corporation only for the profit of the trans- 
action, which was $50,000, the proceeds of the ten thousand 
shares, viz: of the 200,000 shares, the capital, 100,000 shares, 
wore left with a committee of the purchasers; 40,000 shares 
realizing $200,000 were paid for the property; and in addi- 
tion there were paid 40,000 shares by agreement; there were 



Evans' Appral. Kuhn's Appeal. 265 

10,000 faliares for working capital, \Vhich would leave 10,000 
shares as above stated. The 100,000 shares left with the com- 
mittee were not to be put on the market for a year; after 
that time they were distributed amongst the parties, and 
there were still held by them under tliat distribution 72,000 
shares. 

If it were a mistake to receive money for stock as subscrip- 
tion to capital instead of as the price of stock sold, it was a 
contract of the seller with each stockholder and not witli the 
corporation representing the agj^regate body of the purchas- 
ers, and the cause of action would be the difference in value 
as represented to the purchaser and t'le actual value. 

This answer averred that tlie Bories, Bell, Haitian d,Bowen, 
Fox, Bayard, D'Invilliers, Hopkins and Wister, defendants, 
were creditors of the corporation to the amount of $36,500 
with interest. 

Any claim on the ground of misrepresentation, that the 
money paid was for subscription to the capital, could not be 
pursued by tiie corporation, not being a riifht common to all 
the stockholders; and this would be a matter between the par- 
ticular person defrauded and the party defrauding. It was 
still averred that the plaintiffshad no cause of action, as they 
did not give more for the stock than its market value when 
they purchased. Up to April 1st 8tock could not liave been 
bought at a less price than tliey paid, and up to April 4th it was 
generally at a premium. The Corporators in the act of 1854 
did not contemplate any connection between their charter and 
the property mentioned in the bill; but wlien the owners of 
the projierty contemplated orLranizing a cor]iorati()n they 
applied to the corporators to enable them to act under it. On 
March 24, 1864, it was agreed to organize a corporation, and 
they obtained a charter for that purpose on March 28th. 
Evans' agent, wheti he boun'ht the stock, knew he Ijonglit it 
from persons who had undertaken there sliould besncii a com- 
pany. Kuhn's agent told him it was a stock "we are about 
bringing out," and on this he ordered 'he stock. The pur- 
chasers of the stock acquiesced in the conduct of the defend- 
ants in regard to the transacting by accepting their certificates 
ahd not making complaint until they filed this bill nearly six 
years, afterward. 

The defendants were holders of a majority of the stock, 



266 Laches. 

some of tl.em directors and officers. They did not control tlie 
co.npanv in respect of suits, etc. Until this bill was filed no 
one luid"iisked the officers to sue. This acquiescence whs not 
from io-norance. In 1805, and after the stock had declined, 
they made a request to examine the facts. A committee of 
stoclvholders was appointed, to whom all the facts were stated, 
exphinatioiis made and papers fnrnished; every fact now 
known was then known and made as public as possible. The 
reiwrtof committee of stockholders was made in July. 1865. 
Several persons brought suits; one was withdrawn and the 
others have been pending for a long time and were never 
brought to trial. 

The answer of the corporation averred that the charter of 
1854 was obtained, and other persons associated with the cor- 
poratoi's for the purposes as stated in the foregoing answer, 
and that the facts stated in it were true. 

If any trust existed it was an implied one and arose when 
the owners of the property transferred it and received the stock 
bargained for. This was compUtoly done as early as April 
ISfi-t; before any proceedings were commenced more than live 
years had ela])sed and the right, if any, which the corporation 
"liad, was barred by the act of 18Jfl. 

The master found the facts as follows: 

1. The not of May 9, 1854, which had been obtained by 
Wister, and was controlled by him. 

2. Tlie ownership by Lewis of the Blair county farms, and 
interest in the leaseholds in which Tatluira also had a half in- 
terest. 

M About March 1, 1804, Wister procured from Lewis an 
option topui'chaso hiafarm for $100,000, with the underslnnd- 
in>i that liiirio and lIo])kins should be interested with him, 
il' they (k'si rod. They did not agree to participate nntil the 
24th of Maicli, Hopkins having previously inquired of Wis- 
ter if he had n(U, m, charter for a zinc company. 

4. Shortly before, March 14tli Wister emjiloyod a geolo- 
gist to examine the land. His report was addressed to "0. J. 
Wister anil his associates." The cost of printing the report 
was i)iu(l by the Keystone Zinc Company. 

5. On March 21st, Henry Tatham couRulted Borie ns to 
getting up a com]mny to purchase the Tatham leaseholds. 
lie informed Tatham he was too late as his friends had talked 



Evans' Appeal. Kuhn's Appeal. 267. 

of forming such company with the Lewis farm, and that if 
'Tatham was willing to take stock in a company that miglit 
be formed in payment of his leases, something migiit be 
made out of it. On the 25th Tatham inquired of Borie what 
the company was to be. 

Borie informed him that if one should be formed, it would 
be on the basis of $100,000 for tlie Lewis farm and the leases, 
and theirrelative vahie. Tatham declined, thinking tlie Lewis 
farm was not worth that snm. Borie said if Tathams would 
give him the refusal of the leases till April 1st, he would try to 
include them in any arrangement that miglit be made. Tlie 
refusal for $50,000 was given as requested. 

6. Wister had been urgent with Borie and Plopkins to 
purchase the Lewis property and form a company, telling 
them if they would not, he could find one tiiat would purchase 
and that would give them a handsome profit. Hopkins and 
Borie hesitated. 

7. O a March 24th Borie, Wister and Hopkins concluded 
to purchase the Lewis farm, Borie informing the others that 
lie had the refusal of the Tatham leases i'ur $50,000 which, he 
added, ought to be included in the purchase by parties form- 
ing the company. 

8. It was agreed that Borie should purchase the Tatham 
leases as well as Lewis' farm, for $150,000 for the entire prop- 
erty. 

9. It was further agreed that if Wister could find any 
parties to pay $50,000 profit he might sell to theiii; but if not 
they would do what they thought best. Wister stated at this 
ineetiig of March 24th. as well as previously, that lie owned 
Or controlled a charter under the authority of which such 
a company could be formed. 

10. The paper of March 24th, mentioned in the answer, 
was prepared and given to Wister for the purpose of obtain- 
ingr signatures. 

11. While Wister went to secure subscribers to this paper 
Borie completed the purchase of the farm, Lewis executed 
a paper dated March 24, 1864, viz.: 

" For and in consideration of the sum of $30 to me this day 
paid, I hereby agree to sell to Mr. C. L. Borie all my right, 
title and interest in my farm in Blair county, known aa the 



268 Laches. 

"Wcaite farm, of one hundred and sixty-one acres, more or less; 
also a tract adjoining, of about twenty-five acres, known as tlie 
Galbraith propertj', for tlie sum of oneliundred tiionsnnd dol- 
lars, iipon the execution of satisfactory deeds, including all 
mineral rights." 

12. Lewis refused to include in this sale his half interest 
in the leases; and after much bargaining, Borie agreed to buy 
this interest for $50,000. Lewis executed this paper: 

'• It is also agreed and understood that for the additional 
sum of $50,000 I will transfer and set over to said C. L. Borie 
or his assigns, all my right, title and interest, as well as that of 
Mr. Wtn. J. Taylor as far as I can control them, in all or any 
leases held by me or him, severally or jointly with each 
other." 

13. While Borie was concluding the purchase with Lewis, 
Wister procured to the first paper the signatures of Maitlnnd, 
Bell, Shaw, Bayard, Fox, D'lrivilliers and Harris, all for $20,- 
000 each, except Bayard, who' subscribed $10,000. Most of 
these had, before the paper was presented to them, been in- 
formed that a zinc property was for sale, in which they were 
wanted to take an interest with the view of forming a zinc 
company in which they were to become the owners of sliares. 

14. Before Borie left Lewis he asked him if he would like 
to join with others in buying the property and leases, and take 
stock of a company ^TO rato for liis interest. Lewis agreed 
to take an interest of $20,000, and Trotter, who was present, 
On beinsr asked by Borie if he would take an interest, agreed 
to lake $20,000, and both Lewis and Trotter authorized Borie 
" to act and do for " them. On the same day Borie informed 
Lewis that he had subscribed $10,000 each for Lewis and 
Trotter, with which Lewis said he was dissatisfied, and de- 
manded more; he was allotted $10,000 additional in the name 
Nathan Bartlett. 

15. 16, 17. The facts as to Borie requiring $50,000 addi- 
tional in consequence of the purchase of Lewis' leasehold in- 
ten'st, the plan to give forty thousand shares additional to 
Borie, estimated at $1.25 per share, and Borie's offering the 
amount of subscription that was needed, were found substan- 
tially as set out in the answer. 

18. On the same day that this paper was signed, but after 



Evans' Appeal. Kuhn's Appeal. 269 

it was signed, most of the parties to it offered for sale their 
stock or shares in the projected company. They were readily 
sold at five dollars per share. The parties agreed that Mait- 
land should sell the stock on their joint account. 

19, 20. About March 24, 1864, Earris informed Kuhn 
that he and a nnmber of gentlemen had purchased property 
in Blair county, containing about one hundred acres, and 
leased twelve or thirteen hundred acres adjoining, together 
with the mining privileges; that the land was reported by a 
geologist to be very rich in zinc ore of an excellent quality; 
that they intended or were about to organize a company with 
a capital of two hundred thousand shares. Harris added that 
believing this to be a valuable property he had come to give him 
a chance of being interested; that they had determined to dit- 
pose of 60,000 shares of the 200,000 shares at $5 a share. Kuliii 
agreed to purchase 6,000 shares, and on the 26th Harris in- 
formed him he had purchased that amount for him; and the 
next day Kuhn paid the purchase money in the temporary 
loan of the United States. On the 26th Evans purchased 
through his broker, 1,000 shares of the stock, and on tlie 28th 
paid for them., 

21. The defendants, Maitland, Baj'ard, Harris, Bell, Bowen, 
Fox and D'Invilliers are stock brokers and were actively en- 
gaged in soliciting purchasers for and selling the stock, on 
March 24:th and subsequently. 

22. On the 25th March, Fox informed Borie that he 
had sold his stock at $5 a share. Borie said to him that that 
was all wrong; that the company had not been organized and 
that there was no stock, and that when Fox sold his stock he 
wanted his own and that of his friends sold. Borie insisted 
that the parties should meet that afternoon to determine upon 
their organization, etc. 

23. On the afternoon of the 25th March, Maitland, Bell, 
Shaw, Fox, Harris, D'Invilliers and Bayard, met at Borie'is 
ofHce. Borie stated the manner in which he had changed the 
original terms of the purchase, namely, that he and his part- 
ners, Wister and Hopkins, were to receive stock instead of 
cash. They all assented to this change, and they agreed to 
organize on the basis of a charter owned or controlled by 
"Wister, with a capital of $1,000,000, divided into 200,000 



270 Laches. 

sliai-es at $5 each; and it was agreed tliat $50,000 should form 
the working capital of the company when it was organized. 

24. At this meeting Maitland and Bell informed Boris 
that they had sold all or nearly all of their stock. He claimed 
that all the parties in interest should have a proportionate in- 
terest ia the sales, and that all their stock should be sold for 
joint account; that a committee should be appointed for that 
purpose, and that all stock sold should be put into their 
hands, each party furnishing a ^rc rate portion. Tiiis was 
agreed to, and it was resolved to place 60,000 shares in their 
hands for sale; that number being fixed because that number 
had been already sold. 

25. Borie advised that a printed form of receipts should be 
prepared and given to each purchaser — that mentioned in the 
bill as having been given to Evans. 

26. 'Next day sales of nearly 100,000 shares having been 
reported, the same parties again met and increased the num- 
ber of shares to be offered for sale to 100,000; and farther 
that the balance of unsold stock should be locked up in the 
hands of the committee not to be sold forone year without the 
consent of tliree fourths of the party in writing. 

27. Meantime Wister, with the knowledge of Borie and 
Hopkins, procured the passage of tlie act of March 28, 1864 

28. On the same 25th Marcli, Borie notified the parties 
who had agreed to purchase to pay him fifty per cent, of the 
purchase money, as security that they would carry out their 
agreement to purchase. Harris & Oo. on the 25th of March 
paid $10,000 on account of their share of the purchase, Bay- 
ard $5,000, Bell $10,000, and Trotter $5,000; and on the same 
day Borie lent to Harris & Oo. $10,000, to Bayard, $5,000 
and Bell, $10,000. On the ,26th of March Bowen and Fox 
paid to Borie, $10,000; D'Invilliers, $10,000; Maitland, $10,- 
000; Shaw, $10,000; Lewis, $5,000; Bartlett, $5,000; A. 
E. Borie, $5,000; Hopkins, $3,750; Wister, $3,750; 0. L. 
Borie, $3,750, and H. P. Borie, $3,750; and on the same 
day Borie lent to D'Invilliers $10,000; Lewis, $10,000; 
H. E. Borie, $5,000;- Hopkins, $3,750; Wister, $3,750; 
0. L. Borie, $3,750, and H. P. Borie, $3,750. Tiie appar- 
ent payments to Borie by Harris & Co., Bayard, Bell, 
D'Invilliers, Lewis, Bartlett, A. E. Boire, Hopkins, 
Wister, 0. L. Borie, H. P. Borie, were not actual pay- 



Evans' Appeal. Kuhn's Appeal, 271 

merits, but were of sums of like amount lent to them at the 
time of payment by H. & 0. Borie. 

29. At the meeting on the 25th of March, Borie was ap- 
pointed treasurer " to receive and deliver the stock " to Mait- 
land and receive from hitn the proceeds. Maitland sold 100,- 
000 shares of stock and paid to Borie on March 29th, $200,- 
000, and on tlie 9th of April, $250,000. He retained in his 
hands $50,000 by the agreement of the parties, to be used by 
him, under the instructions of their committee, in the pur- 
chase of such of the stock as they might judge expedient. Bo- 
rie held the $200,000 for payment for the property when the 
proper conveyances should be executed; and on April 5th he 
paid Lewis $150,000 and Tathain $50,000. 

30. The sum of $250,000 paid to Borie on April 9th was 
divided among the parties according to their respective inter- 
ests. That is to say, there was paid to E. T. Shaw, $12,000; 
Harris & Co., $12,000; Maitland & Co., $12,000; John P. 
Bell & Co., $12,000; C. D'lnviUiers, $12,000; Bowen & Fox, 
$12,000; C. P. Bayard, $6,000; George Trotter, $6,000; 
George T. Lewis, $6,000; IST. Bartlett, $6,000; A. E. Boi'ie, 
$6,000; E. M. Hopkins, $31,166.66; C. Wister, $31,166.66; 
G. L. Borie, $4,500; H. P. Borie, $4,500; C. & H. Borie, 
$36,666.86; the Keystone Zinc Company, $50,000, to pay for 
the subscriptions by C. & H. Borie, E. T. Shaw, E. Y. Mait- 
land, John P. Bell, Boweu & Pox, C. P. Bayard, C. D'Li- 
villiers, Harris & Co. and Charles "Wister, each for 1,000 
shares, except Wister, who subscribed for 2,000. These pay- 
ments were made April 9, 1864. 

31. At a meeting of the corporators of the Keystone Zinc 
Company,- held April 6th, the act of incorporation and tlie 
supplement were accepted. Books were opened for subscrip- 
tions for the capital stock, when C. & H. Borie, E. T. Shaw, 
E, V. Maitland, John Bell, Boweu & Fox, C. P. Bayard, C. 
D'lnviUiers and Harris & Co. each subscribed for 1,000 shares, 
and Ciiarles Wister for 2,000. The subscription price for 
these shares, namely $50,000, was paid by Mr. Borie as men- 
tioned, 

32. These stockholders met on April 7th and resolved that 
the original stock of the company " be divided into one hun- 
dred thousand shares at $5 per share." They elected a 



a 



272 Laches, 

president and directors, all of whom were among the pnrclias- 
ers of the land. At an adjourned meeting next day it was 
resolved to increase the capital stock to two hundred thousand 
shares, and that the directors be directed to purchase, for the 
purposes contemplated in the charter, the real estate sold by 
Lewis and Tatham, to pay for the same the sum of $200,000, 
with one hundred and ninety thousand shares of the capital 
stock, which shares the directors were authorized to trajisfer 
to the vendors of tlie land. 

33. The directors met the same day and authorized the 
president of the company "to effect the said purchase on the 
terms proposed, and to transfer the said stock," etc. At 
meeting of the board on April 23d, the president reported 
" that he had executed the necessary deeds, etc., for the pur- 
chase." 

34. On April 8th there were issued the certificates of 
stock to the subscribers for the 50,000 shares, as mentioned in 
3lst paragraph. At the same time there were issued to 0. & 
H. Borie two certificates, one for 100,000 shares and one for 
90,000, in payment for the land and leases. 

35. The shares so delivered to C. & PI. Borie were thus 
disposed of: 100,000 to E. V. Maitland, 7,000 to Harris & 
Co., 7,500 to E. V. Maitland, 7,000 to John P. Bell, 8,500 to 
0. D'Invilliers, 7,000 to Boweu & Fox, 3,000 to C. P. Bayard, 
9,667 to E. M. Hopkins, 40,333 to C. & H. Borie. The de- 
livery of this stock to C & H: Borie was in fact in trust for 
the parties who had subscribed to pay for stock or shares be- 
fore the organization of the company, and also for 0. Borie's 
co-purchasers' shares, in part of their profit on the resale to 
the corporation. 

36. Of the money received by Maitland after he had paid 
Borie $450,000, he retained $50,000 for the purpose of specu- 
lating in the stock, at the discretion of the trustees named for 
the purpose at the meeting of the 25th of March. The prof- 
its on the speculation when the account was closed were paid 
to the parties, namely: to Shaw, Bell and Bowen & Fox $1,284 
each; D'Invilliers and Harris $1,027.20 each; C. & H.. Borie 
$6,163.20; Bayard, $513.60; Maitland, $1,027.20. 

37. The parties who signed the agreements of March 24th 
received $250,000, the balance of the $500,000 received by 



Evans' Appeal. Kuhs's Appeal. 278 

Maitland after paying for the property and retaining $50,000 
for the purpose of speculation ; and $13,610.40, the protits 
fKom the speculations with the $50,000; and ninety thousand 
shares of stock; on all this tiiey did not pay a dollar. 

38, 39. The actual subscribers or purchasers received their 
certificates of stock from or through Mr. Maitland out of the 
100,000 shares assigned and transferred to him for that pur- 
pose; they were not informed of the meeting at which the 
company was organized, nor were they present at it, nor at 
that at which it was determined to buy the property from 
Borie. 

40. The parties who purchased tlie stock or shares were 
never precisely informed wliat tliey bought. They never in- 
quired. If they had, inquiry would probably never have 
ended in knowledge, for the sellers were as ignorant as the 
purcliasersf some of them have testified that tliey did not 
know, themselves. Both believed they were buying and sell- 
ing into a speculation, and that sufficed to satisty them. 

41. Mr. Kuhn, in the fall or winter of 1864-5, inquired 
of Harris why a meeting of the stockholders was not called, 
in order that the parties interested might ascertain what was 
doing, and the reply he received was that there was nothing 
to tell. On the 3d October, 1865, however, there was a meet- 
ing of stockholders, which Mr. Kuhn attended; he testified 
that a report from a committee which had been appointed to 
investigate the affairs of the company was read, "of such a 
damaging character to the concern and those having the man- 
agement of it that I at once determined to take legal meas- 
ures for the recovery of my money, which I considered had 
been improperly made use of." Mr. Kuhn "very shortly af- 
ter" called on counsel, and informed him of his determina- 
tion, and retained him to commence suit. His counsel in- 
formed him that a suit had been instituted by otlier parties; 
that their case was similar to his, and that a decision in that 
would determine his, and advised delay until the deter- 
mination of the existing case. In this advice Mr Kulm 
acquiesced. Mr. Kulin's counsel testified he did not bring 
suit " because he had no instructions to do so," and because 
he believed his recommendation to him that he should await 
the issue of pending suits seemed to have his acquiescence. 

VOL. VIII — 18 



274 Laches. 

42. An act of the General Assembly, approved Mnrcli 21, 
1S65, authorized the corporation to borrow not exceed injr 
$aOO,000, to issue bonds tliercibr, and to secnre their piiyuiont 
by a mortgage of their estate and franchises; and at a meet- 
ing of the stockholders, held October 17, 1865, it was deter- 
mined to submit the. question of the acceptance or rejection 
of this supplement to a stock vote. As tlie result of this vote 
the snpplement was accepted. Mr. Kuhn and Mr. Evans 
voted in the negative. Mr. Wells and Mr. Kenney did not 
vote. 

43. The minutes of the corporation, under the date of 
May 19, 1871, contain the following entry: "Joseph Mait- 
land, Esq., president, reported verbally that the works had 
not been in operation during the last year, and therefore hud 
nothing to communicate relative to the details of the works 
further than may be found in the treasurer's accounts here- 
with submitted. He further reported that a judgment had 
been obtained against the company at the suit of parties who 
had loaned the money necessary for the building of the works, 
and that the leases and personal property had been levied 
upon and sold, on the 19th of January last, under that judg- 
ment. He further stated that, having exhausted all the per- 
spnal property, they had now levied upon the real estate, and 
it would be sold for the balance of their judgment between 
tliis tiuje and July or August next." 

44. Mr. Charles Borie being asked, on his examination, 
what was the present condition of the property, replied: "It 
has all been sold; farm, personal property and leases — all the 
property of the company— on judgments obtained by credit- 
ors." These creditors were parties who had loaned money to 
the corporation, namely, E. T. Shaw, George Trotter, 0. P. 
Bayard, Bowen & Fox, E. H. Hopkins, C. & H. Borie, C. 
D'Invilliers, E. Y. Maitiand, George T. Lewis, Charles Wis- 
ter, A. E. Borie and John P. Bell, Their claims amounted 
in the aggregate to $34,000. Mr. Borie also testified that the 
property was bought in for the creditors. 

45. Tlie siieriff deed is made to Frank W. Paul, Esq., wlio 
has executed a declaration of trust, reciting tliat the purcliase 
money recited in the slieriff's deed to have been ]^,l\^], was 
paid by Charles L. Borie, and declaring that he held the prop, 
erty in trust for him, to be conveyed as ho shall direct. 



Evans' Appeal. Kuhn's Appeal. 275 

46. There is no evidence showing the cause of the compa- 
ny's insolvency. 

The report of the master proceeded: 

" Bi'.nsmore Oil Go. v. Derismore, 14 P. F. Smith, 43, de- 
cides that'there are two principles applicable to all partner- 
ships or associations for a common purpose of trade or busi- 
ness. 

*' 1. That any man or number of men, owners of property, 
may form a partnership or association with others, and sell 
tliat property to the association at any price which may be 
agreed upon between tliem, no matter what it may liave origi- 
nally cost, provided there be no fraudulent misrepresentation 
made by the vendors to their associates. The latter are in no 
better position than strangers. Tliey must exercise their own 
judgment as to the value of what they buy. 

" 2. That where persons form such an association, or begin 
or start the project of one, from that time they do stand in a 
confidential relation with each other and to all others who 
may subsequently become members or subscribers, and it is 
not competent for any of tliem to purchase property for 
the purposes of such company and then sell it at an advance, 
witliout a full disclosure of the facts. Tiiey must account to 
tlie company for the profit, because rt is legitimately theirs. 

" Within which of these two propositions does the conduct 
of the defendants fall?" 

After giving a synopsis of the facts, he proceeded: 

"Whatever may have been Mr. Borie's position when lie 
agreed to buy from Lewis, yet, after he bought and associated 
with the otlier subscribers to the paper of March 24th, he and 
those he represented united with them in beginning or start-' 
ing the project of an association; and one of the professed 
objects of the parties was to sell the property to the projected 
company at an advance on the price at which they pur- 
chased it. 

" This is the very case of Mc'Elhenny's Apjoeal, 11 P. F. 
Smith, 188. There it appeared that Mcllhenny was the owner 
of certain land supposed to contain oil. He ojffered it for sale 
to parties at the sum it cost him, namely, $12,000, and a share 
of the profits to be made by the purcliasers from him in case 
they put it into a company at the sum of $40,000. He sold 



276 Laches. 

to an association on these terms. After tlie contract with and 
sale to his vendees, he associated with tiiein as piiroliaseri at 
$40,000, on which to form a company. ' Thus,' say tlio court, 
' they became buyers and sellers to and for the company. The 
rnle seems to be settled, in numerous cases, that the promot- 
ers of such companies, when tliey buy to form a company 
and their purchases are taken by the company, they can not 
make profits on these sales.' 

" In this case the court decreed that Mcllhenny's estate 
should pay a sum equal to the profits received by him from 
the companj in the sale to it by the promoters. 

"The actual formation of the company by the defendants 
is thus shown by the testimony." 

The master then stated the testimony as before given, and 
proceeded : 

* * * " Mr. Borie in this answer says, tind it is also 
shown by the testimony, that he stipulated for a profit of 
$50,000 for himself, Hopkins and "Wister, on the resale of tlio 
land, and that this was afterward so changed that in lieu he 
agreed to receive 40,000 shares in tlie projected compan_y, 
which, at the price of $1.25 per share, would rqnal his stipu- 
lated profit. But the evidence sliows that Borie, Hopkins 
and Wister received in money as their share of profits more 
than $93,000 besides over 50,000 shares of stock. The re- 
ceipt given to the subscribers to the stock was, on its face, a 
declaration that they were subscribers to the stock of a com- 
pany, and that their money was to go into tlie treasury of tlie 
company. The sale and purcliase'by tlie directors of the com- 
pany, by and from themselves for the company, at a price 
beyond which they paid, is beyond all question 'a*transaction 
so incorrect that it is quite impossible tliat any court of justice 
could permit it to stand.' 

"The master has no diflioulty in arriving at the conclusion 
that, under the autliorities, the defendants would, in a proper 
suit if brought within a proper period, be liable to account for 
the profits they have made. 

"The bill filed is substantially a corporation bill. This 
was asserted by the defendants and conceded by the plaintiffs. 
The latter in their bill aver that the defendants own or con- 
trol the defendants' corporation; that some of them are direct- 



Evans' Appeal. Kuhn's Appeal. 277 

ors or officers, and in that way manage and direct the com- 
pany, and neglect and refuse to take any measures, or permit 
the company' to take any, against themselves, for obtaining the 
relief which the plaintiffs seek. 

" The corporation in its answer denies the equity of the bill, 
and asserts that the matters set forth in its answer are suf- 
ficient to justify the refusal to institute any such suit as 
the plaintiffs require. * * * " As it is an axiom that a 
court of equity jurisdiction ' will relieve against every species 
of fraud,' the master reports that if the individual defendants 
shall be finally found liable, thedecree should be that they pay 
the amount of their profits to the corporation. 

"But an important question yet remains to be considered, 
, and that is whether the plaintiffs by their laches have not de- 
prived themselves of all claim to relief. 

" ' It is a principle in equity,' says Lord Selborne in Ayerst 
V. Jenkins, Law Rep. 16, Eq. 275, ' that long delay in seeking 
to rescind a transaction originally voidable, on the faith of 
which other parties have irrevocably made their arrangements 
in life, may operate as a bar to relief.' 

'' In the winter of 1864-5 Mr. Kuhn, being informed that 
something was wrong in the organization or management of 
the company, urged one of the directors (Harris) to cause a 
meeting of the stockholders to be called, that they might have 
an opportunity of inquiring into its affairs. At such a meet- 
ing, in 1865, he learned that which was, he says, ' of such 
a damaging character to the concern and those having the 
management of it, that he at once determined to take legal 
measures for the recovery of his property,' which he consid- 
ered had been improperly used. He called on counsel to com- 
mence suit, and the delay which occurred was in consequence 
of his advice. The reason given for such advice was 'that 
there had been a suit commenced by other parties; that (his) 
case was similar to theirs; that as their suit terminated favor- 
ably or unfavorably so would (mine), and that there was no use 
for (me) to bring suit, as a decision in that case would deter- 
mine my own. The testimony of Mr. Kuhn's counsel is, that 
lie did not proceed because he had no instructions to do so, and 
because he believed that his 'recommendation to Mr. Kuhn 
that he should await the issue of the suit mentioned had his 



278 Laches. 

acquiescence.' The suits referred to were actions on the case. 

" There has been no evidence on the subject of the delay in 
proceeding on behalf of Evans, Wells and Kenney, the other 
plaintiffs. 

" The bill in this case was filed March 19, 1870, five years and 
over from the time Mr. Knhn determined to take legal meas- 
ures to recover his money. 

" Laches and neglect are always discountenanced. Nothing 
can call a court of equity into activity but conscience, good 
faith and reasonable diligence. That court can not define the 
time of bar by a positive rule; it must be governed by cir- 
cumstances. It refuses relief to stale demands, even in cases 
where no statutable limitation exists, 

"The question of what length of time will bar the assertion 
of a constructive trust was considered in Ashhursfa Appeal, 
10 P. F. Smith 290. In this case it was said by the judge 
at Nisi Prius, ' but what is the reasonable time within which a 
constructive must be asserted? The cases do not clearly de- 
fine it, and perhaps it is incapable of strict definition. It 
must vary with the circumstances of each case. For myself, 
I think it may be safely laid down that where a party claims 
to hold another a trustee of personal property under a con- 
structive trust, that he must assert the claim within six years 
from the time when the trust is alleged to liave originated. 
In analogy to the Statute of Limitations he can not be per- 
mitted to make the assertion afterward. This, I think, 
should be regarded as the general rule. There may be cases 
where even six years can not be allowed, as when a party, 
having a right to set aside a transaction, or treat it as a trust, 
stands by and sees another dealing with the property in a, 
manner inconsistent with any trust, and makes no objection. 
And so when the rights of third persons may have intervened. 
So, also, where the property is of a peculiar kind, and the al- 
leged trustee, in ignorance of any intention to hold him to an 
account, relying on his ownership, enters upon a hazardous 
business or incurs large responsibilities. At least this is true 
when the alleged constructive trust does not grow out of 
actual or intended fraud. It has often been said that equity 
obeys the Statute of Limitations, and it has been held that 
laches for a much shorter period than six years, aided by other 
circumstanoes will bar a right.' 



EvAKs' Appeal, Kuhn's Appeal. 279 

" These principles were applied to that case, and tlie plaint- 
iff was held to be barred because his bill was'not filed until 
seven years and four months after his right to sne, it he had 
any, came into existence. This decree of the judge at Nisi 
Prius was affirmed by the court in banc, the opinion declaring 
that tlie court were unable to discover error in any of the con- 
clusions arrived at by the judge below. This case, therefore, 
must be taken to have decided that laches for a shorter period 
than six years, aided by other circumstances, will bar a right 
in equity. 

"The meeting of the stockholders at which Mr. Kuhn 
learned that which determined him to bring suit to. recover 
the money which he had paid for stock, was held October 3,1865. 
At a meeting held October 17th in the same year, he and Mr. 
Evans were present and participating in the proceedings 
by voting their stock against the acceptance of an amendment 
to the charter of the company, which authorized it to borrow 
money, issue bonds, and secure them by a mortgage of the 
estate and franchises of the corporation. At tliis meeting a 
resolution was offered authorizing the directors to borrow on 
the security of such a mortgage. The amendment to tiie 
charter and the resolution were both adopted by the vote of a 
majority of the stockholders, who also held a majority of the 
'stock. 

" This conduct of these two parties was inconsistent with 
any intent to proceed against the defendants, who were the 
directors of the corporation, in such a manner as would dis- 
organize and cripple the company in whose prosperity they 
" had so large an interest. 

" The managers of the company seem to have fairly and 
honestly endeavored to manage its affairs for the advantage 
of the stockholders. They borrowed money, themselves being 
the lenders, not, however, under the authority of tlie amend- 
ment for the purpose of constructing works, etc. And all tliis 
was done without interference or objection by any of the 
plaintiffs. The application to counsel made by Mr. Kuhn was 
not known, so far as appears, to the defendants. 

" The master reports that the ball should be dismissed, each 
party to pay his own costs." 



280 Laches. 

Exceptions were filed with tlie master by both parties. The 
liftii of the plaintiif was: 

"The master errs in reporting generally that the bill should 
be dismissed, whereas the reasons he gives for such dismissal 
only apply to two of the complainants." 

As to this exception the master reported: 

"I omitted to report why I considered that the bill as to 
Wells and Kenuey should be dismissed. These parties knew 
of the matters complained of as entitling them to relief in 
1865, and they did not become parties to the bill until 1872. 
They were therefore outside of the statutory time of six year.^. 
They could not at the latter period have filed a bill originally. 

" It has been argued with earnestness that they are to be 
considered as being parties to the bill at the time it was filed 
in 1870. And for this authorities have been cited. These 
are to the effect that a bill filed by a creditor on behalf of him- 
self and others, will prevent the running of the statute as to 
those not named, and that a creditor who comes in during the 
progress of a suit, which has been instituted by one creditor 
on belinlf of himself and others, is to be considered in the light 
of a plaintiff, as if the bill had been filed in liis name: Stern- 
dale V. TlanJeinson, 1 Simotis, 393; O'KeUy v. Bodldn, 2 
Irisl) Eq. 369. But these cases were cases of creditor's bills 
— proceedings not known in Pennsylvania. The claims were 
claims ex contractu. No similar decision has been shown in 
a ease where the bill was filed on behalf of cestuis que trust 
claiming under a constructive trust. I a)n, therefore, unable 
to conclude otherwise than that Wells and Kenney are to be 
considered parties only when they came by their petition in ' 
1872." 

With some unimportant alterations the master overruled 
all the exceptions. 

At Nisi Prius, December 22, 1874, the exceptions to the 
master's report were overruled, and it was decreed that the 
bill be dismissed, each party to pay their own costs. 

Evans and Kuhn appealed to the court in banc. 

They assigned for error. 

2. Dismissing the complainant's bill. 

4. Not sustaining complainant's second exception, viz.: 
" Eoporting .that the presence of Messrs. Kuhn and Evans, 



Evans' Appeal. Kuhist's Appeal. 281 

two of tlie plaintiffs, at the meeting of October 17, 1865, and 
their voting against the acceptance of tlie amendment to the 
charter autliorizing it to borrow money, issue bonds and se- 
cure tliem by mortgage of the estate and franchises of tlie cor- 
poration, was conduct inconsistent with any intent to pro- 
ceed against the defendants, who were the directors of the 
company; in whose prosjjerity they had so large an interest, 
and therefore reporting that the bill should be dismissed." 

5i Not sustaining complainants' third exception, viz.: 
" Reporting, when he had already in effect reported, that 
these very directors, at the time of that meeting, had in their 
hands large sums of money applicable to the very purpose for 
which at that meeting it was resolved to raise money by mort- 
gaging the company's property, and which sums were fraud- 
ulently withheld from it by them; and the presence and votes 
of said plaintiffs at that meeting were exactly in the line of 
and in accordance witli their present suit, the object of which is 
to put into tlie treasury of the company funds to pay its 
debts and continue the developments of its mineral property; 
that is, their votes were to prevent the raising of the money 
by mortgage, when the defendants owed the company more 
than was needed." 

6. Not sustaiuingcomplainants' fourth exception, viz. : "In 
so reporting, because instead of an intent to proceed against 
the defendants as directors of the company in a manner to dis- 
organize and cripple it, the suit intended and now brought 
was and is a suit to put the company in a prosperous con- 
dition, by bringing into its treasury from the pockets of the 
individual defendants large sums which propferly belonged 
to it." 

7. Not sustaining complainants' fifth exception , viz. : " Ke- 
porting, generally, that the bill should be dismissed, whereas 
the reasons he gives for such dismissal only apply to two of 
the complainants." 

8. Not sustaining the plaintiffs' sixth exception, viz,: 
" Reporting that the managers of the company seem to have 
fairly and honestly endeavored to manage its affairs for the 
advantage of the stockholders, after, in effect, reporting that 
they were all the time fraudulently withholding from the 
company many thousands of dollars to which it was entitled, 



282 Laches. 

and while so withliolding said moiiej's liad sued the company 
for allei,'ed loans, had its property sold by the slieritf, and luid 
bouglit it in for themselves." 

9. Not sustaining complainants' seventh exception, viz. : 
" Reporting that the snms which defendants allege they lent 
to the company were really snras borrowed by the coinpiiny 
from them individually, when he had before in effect reported 
that they owed to the company much more than they allege 
that they lent, and a court of equity would, under the circum- 
stances, treat such alleged loans as payments on account of 
what they owed." 

10. Not sustaining the complainants' eighth exception, 
viz.: " Reporting that this borrowing and lending was done 
without any interference or objection by nny of the plaintiffs, 
when there was no evidence of any knowledge whatever of 
said borrowing or lending on the part of the plaintiffs." 

11. Not sustaining the complainants' ninth exception, 
viz.: "Reporting that the bill should be dismissed, because 
of the complainants' delay for a jieriod of nearly six yeiuv, 
aided by other circumstances, whereas he should have re- 
ported that no circumstances existed to take the complainants' 
case out of the general rule, and that, therefoi'e, as a bill was 
filed within six years, the complainants were not barred by 
this delay." 

G. T. BispiiAM and E. S. Miller, for appellants. 

R. C. MoMuETEiE and G. W. Riddle (with whom was .T. 
"W". Paul), foT appellees. 

Mr. Justice Meeoue delivered the opinion of the court, 
May 8, 1876. 

This is substantially a corporation bill. It was filed by 
Evans and Kuhn, who are stockholders in the Keystone Zinc 
Company. Some two and a half years thereafter the bill was 
amended by adding two other stockholders as complainants. 

The ground of complaint is that in the formation of the 
company both the defendants and the plaintiffs were associated 
together; that the defendants purchased certain mineral lands 



Evans' Appeal. Kuhn's Appeal. 283 

and sold them to the corporation of whieli tliej were directors; 
for a sum many times greater than they actually paid for 
them; that the price tliey paid was concealed from the plaint- 
iffs, whereby a resulting trust had arisen, and the defendants 
are liable to account for the profits which they have made. 

The master found the evidence sufficient, to establish a con- 
structive trust, but reported that the bill be dismissed by 
reason of the laches of the plaintiffs in filing it. The court 
confirmed the report and dismissed the bill. 

We will therefore consider the sufficiency of the laches and 
attending circumstances to justify the decree of the court. 

In March, 1864, the agreement for the formation of the 
company was made, and the defendants entered into a con- 
tract for the purchase of the land. The necessary act of in- 
corporation was procured in a few days thereafter. Early iu 
the next month the defendants obtained a conveyance of the 
land and sold it to the corporation, of which they were three 
directors, and certificates of stock were issued thereon, in pur- 
suance of a resolution of the stockholders. At a meeting of 
the stockholders, early in 1865, Kuhn swears that he obtained 
information "of such adamaginsj cliaracter to the overseer and 
those having the management of it, that I at once determined 
to take legal measures for the recovery of my money, which 
I considered had been improperly made use of." "With that 
view he consulted counsel, but in consequence of other per- 
sons occupying a similar position, having brought actions on 
the ease, which were then pending, he postponed instituting 
any proceedings. At another meeting of the stockholders 
held in October of the same year, Kuhn and Evans were both 
present and participated in the proceedings. They voted 
their stock on the question of the acceptance of an amend- 
ment to the charter, authorizing the company to borrow 
money, issue bonds and secure the same by a mortgage on the ' 
estate and franchises of the corporation. It is true they voted 
against accepting the amendment; but that fact in no wise 
chani;es the legal effect of their. action for the purposes we are 
now considering it. The amendment was adopted by a vote 
of the majority of the stockholders, representing a majority 
of the stock. At the same time a resolution was also passed 



284 Lachesi. 

autliorizing the directors to borrow money on the security of 
the mortgage. 

Tills bill was not filed until nearly four and a half years 
after that meeting. If the case rested on the lapse of time 
alone that would be insufficient to bar the plaintiffs' rights to 
file the bin. 

As a general rule a constructive trust in regard to personal 
rights or personal property may be asserted at any time with- 
in six years after a knowledge of the facts creating it. At 
the expiration of that time it is barred by analogy to tlie time 
fixed by the Stat ;ite of Limitations: Aslihursfs Ap'peal^l^Y. 
F. Smith, 290. But laches for a much shorter time than six 
years, aided by other circumstances, will bar the right: Id. 

There is another aspect of this case. The relief prayed for 
is not that the defendants shall pay anything directly to the 
plaintiffs, but that they shall pay into the treasury of the cor- 
poration, whereby the plaintiffs may be benefited by the in- 
creased property of the company. The attempt is to obtain 
relief through the equitable rights of the corporation. Then 
the knowledge and conduct of the latter must be considered. 

The bill is not to repudiate so much as it is to enforce a 
constructive or implied contract. The land was conveyed to 
the corporation, 8th of April, 1863. Nearly six years there- 
after the bill was filed. Tlie minutes of the corporation of 
the same month of April show tlie facts on which the present 
complaint mainly rests. Tlie manner in wliicli the certificates 
of stock were issued, and payment for the lands made, were 
sufl[icient to make inquiry a duty of all wlio were unsatisfied. 
No steps were taken to establish a resulting trust. 

In October following the company accepted the amend- 
ment to its charter and authorized a loan, predicated thereon to 
be made. The plaintiffs liad full knowledge of this action, 
both present and prospective. They instituted no proceed- 
ings to prevent it. They acquiesced in it. They thereby en- 
couraged the directors to borrow money in pursuance of the 
resolution of the stockholders. They thereby induced the de- 
fendants to believe that no legal proceedings would be in- 
stituted, predicated of the original purchase of the land. 
Afterward the defendants lent money to the corporation but 
not under the authority of the amendment. The master has 



Haklow v. The Lake Supekiok Ikon Co. 285 

found that the directors "seemed to have fairly and honestly 
endeavored to manage its affairs for the advantage of the 
stockholders." Nevertheless tlie company became embar- 
rassed. Judgments were recovered against it by creditors. 
All its propertj', both real and personal, was sold and bought 
in for the benefit of the creditors. Hence, since the plaintiffs 
had full knowledge, new business arrangements have been 
made and other rights have intervened. These proceedings 
were delayed under the attending circumstances, an unreason- 
able time. Having been so delayed, the laches is fatal to the 
plaintiffs' bill. This view is fully sustained hj Ashhursfs 
Appeal, svpra, and the numerous authorities there cited. 
Although the transaction was originally voidable, yet having 
been acquiesced in by the parties who might have avoided it, 
for a length of time less than six years, but by their conduct 
having induced the offending parties to believe it was not to 
be questioned, they are now debarred from avoiding it. 

The two other stockholders, wlio became plaintiffs by amend- 
ment, are in a worse condition than tlie original plaintiffs. 
Their first action was more than six years after they had full 
knowledge. This is not a creditor's bill, in which a creditor 
has come in during the progress of a suit which one creditor 
has instituted in behalf of himself and others. "We are now 
dealing with a constructive trust. These latter plaintiffs are 
to be considered as such, with like effect only as if they had 
filed an original bill at the time they applied by petition to 
be added to the record as complainants. 

Decree affirmed and appeal dismissed- at the cost of appel- 
lants. 



HaeloW vt. The Lake Supeeior Iron Go. 

(41 Michigan, 583. Superior Court, 1879.) 

■ Delay and allowing expenditure. A bill was filed to establisli a right to 
profits from a mine and for a division of the property, complainant claim- 
ing under a lease of an undivided interest in the mines, the remaining 

' Ignorance of his legal rights no excuse for gross laches: Breit v. Yeaton, 
101 111. 245. 



286 Laches. 

inberest, including the reversion, having long' before passed to the de- 
fendant. .//«/(?.■ properly dismissed for unconscionable delny on proof 
that complainant, with full knowledge of what was being done, had al- 
lowed defendant to expend money and erect costly works to develop 
the mineral resources of the land, he, the complainant, not asserting 
his claim in court for more than twenty years after defendant had 
acquired its original interest in the property. 

Appeal from Marquette. Submitted June 13tli. Decided 
October 14tli. 

Bill for an acconnting, division of profits, sale of premises 
and distribution of the proceeds. Complainant appeals. 

F. O. Clark, Dan. TI. Ball and John Yan Arman, for 
complainant. 

"W. P. Healy, J, J. Stoeeow and G. Y. N. Lotiieoi', for 
defendant. 

There are strong presumptions against a claim which plaint- 
iff has knowingly allowed to sleep for twenty years: EnnfniU, v. 
Miller, 26 Mich. 1; Palmer y. Puliner, 36 Midi. 4-86; h'io- 
pelle V. G-ilman, 23 Midi. 35; Toll v. Wright, 37 Mich. 102; 
Loomis V. Brush, 36 Midi. 47; and where the claim is a mere 
usufruct for a limited period its value is constantly diminished 
by defendant's use of the property: Hvff v. McCauley, 53 
Penn. St. 210. 

G-RAYB9, J. 

In 1877 we had before us an action of ejectment by com- 
plainant against the defendant corporation for an undivided 
interest in a mining right bargained by Isaiah Briggs to 
Eobert J. Graveraet in the year 1850, and we then held that 
whatever view might be taken of other questions the thing- 
sued for was not demandable in ejectment: 36 Mich. 105.' 

After this determination, and in November of the same 
year, the complainant filed this bill to obtain the judgment of 
the court in equity on the justice of his claim under said 
mining grant against the defendant, and on final hearing on 
pleadings and evidence the bill was dismissed, and an appeal 
was then taken by complainant. 

> 9 M. E. 47. 



Haelow v. The Lake Superior Iron Co. 287 

The controversy was fully and ably discussed on the eject- 
ment record, and has b^n again debated forcibly and critic- 
ally in its present aspect. 

Several of the leading transactions are'noticed in the report 
of the ejectment case, but a clearer view will be obtained of 
the shape the litigation has now assumed and of the case the 
complainant has undertaken to establish, if we recall several 
of the prominent facts in connection with the scheme of the 
bill. 

In substance, the bill states that on the 5th of March, 1849, 
Fisher, Clark, Graveraet and complainant joined together as 
partners under written articles, which are set forth, to mine 
and manufacture iron in Marquette county under the name of 
the Marquette Iron Company; that in August following Clark 
died, but the three survivors, by mutual consent, perpetuated 
the copartnership with the same name and articles; that 
Isaiah Briggs had pre-empted the southwest quarter of section 
ten, in township 47, north, of range 27, west, in Marquette 
county, and on the 28tli of September, 1850, made the required 
proof and paid tiie purchase price to the United States and re- 
ceived a receipt therefor, and on the same day granted to 
Graveraet a lease of the undivided half of the tract for mining 
purposes, and that Graveraet at the same time assigned the 
lease to the firm. The lease and assignment are set out at 
length. That on the 1st of December, 1851, the United States 
patented the land to Briggs in accordance witli the pre-emp- 
tion riwht: that this lease continned to belong to the firm 
known as the Marquette Iron Company until August 20, 1853, 
at whicii time Graveraet retired and a division and distribu- 
tion of the assets were made, Graveraet granting to Fisher 
and complainant all his interest in the firm property, includ- 
ing the mining right, except in certain parcels of realty turned 
over to him and having no connection with that right. The 
grants on both sides are set forth. That in 1853, the de- 
fendant corporation acquired and still holds all the interest, 
legal and equitable, in said mining tract, and including the 
reversionary right which remained in Briggs on his grant to 
Graveraet, in 1850, of said privilege; that Graveraet's assign- 
ment of 1852 to Fisher and complainant rendered them 
tenants in common of the mining right; that they so held it 



288 Laches. 

nntil June, 1855, at wliicli time Fiskcr granted liie nndivitled 
half to tlie Cleveland Iron Mining Company, and wliicli in 
tnrn trnuited it to defendant, September 2t», 18f)3. But that 
complainant has retained his part and remained lialfowner up 
to the present time. That complainant notified defendant of 
Jiis ownership bel'ore tjie latter purciiased the Fisher half-jn- 
terest and bel'ore it began making improvements and mining 
on the premises; that the defendant enteredjiowever, under 
its purchase of the title and estate existing outside of the 
lease and prosecuted niining, and alter its acquirement of the 
Fisher half-interest continued operations under that title. 

Tlie essence of the claim is that the niining privilege so 
created hj the grant from Briggs to Graveraet on the 28th of 
September, 1850, and by Graveraet assigned to the firm on the 
same day, has alwaj's since Graveraet's retirement from tlie 
firm in August, 1852, and his assignment at tliat time of his 
interest to Fisher and complainant, been in the Joint owner- 
ship of two parties, and that complainant has always been one 
of them. That during the period from An:^ust, 1852, to June, 
1855, Fisher was the other part owner. Tiiat at the last date 
the Cleveland Iron Mining Company succeeded to liis title 
and retained it until September, 1803, at which time the de- 
fendant corporation obtained it, and has since held it. That 
from the acquirement of the main title in 1853 the defendant 
has invariably asserted and maintained an exclusive right in 
the premises and refused to acknowledge any right in com- 
plainant under said mining grant. That the division of in- 
terest has not been in the thing owned, bat in tlie ownersliip 
of the thing. 

Although in the view to be taken it is not material, the fact 
is noticeable that when Briggs gave the so-called lease to 
Graveraet he was not owner of the land, and so far as appears, 
not able to confer the privilege described and might never be, 
and that he expressly postponed the taking effect of the in- 
strument until his pre-emption claim should be confirmed; 
whilst the only evidence the case exhibits of a confirmation 
is the emanation of the patent, which was not till December 
1, 1851, a year and two months after the execution of the 
lease to Graveraet and his assignment to the Marquette Iron 
Company, and several weeks after the conveyance from Briggs 
to Burt, through which the defendant holds. 



Harlow v. The Lake Superioii Iron Co. 289 

The only title and interest asserted by complainant are 
traced to this so-called lease, and whatever may have been the 
legal or equitable value of such title and interest, he must 
have, acquired them as early as August, 1852, the date of 
Graveraet's retirement from the Marquette Iron Company 
and his assignment to Fisher and complainant, and there is 
no intimation in the bill of any entry or offer to make entry, 
or of any steps toward the exercise of right on the territory 
under said instrument either by complainant or the Mar- 
quette Iron Company, or even of any use or occupation of 
the land or any part of it by any party adversely to defend- 
ant. No disability is set up or pretended. 

In August, 1875, a suit in ejectment was brought and 
dropped. A second ejectment was then prosecnted to an ad- 
verse judgment here as already mentioned. No otlier legal 
proceedings seem to have been taken. 

The statenjents about engaging counsel would be unim- 
portant if, as is not the case, they were borne out by the evi- 
dence. 

For more than twenty years next preceding the first eject- 
ment, the defendant was notoriously in possession of the ter- 
ritory in question and asserting exchisive ownersliip. In 
order to find out what mineral resources there were and to 
vvhat extent they would justify outlay, and what methods 
wonld be most expedient if not indispensable, tlie corporation 
made large expenditures and took serious risks, and as tiie 
earlier ventures proved successful and the workings and 
explorations disclosed the underground conditions and the 
mineral riches there, and from time to time su^ffested new 
and further improvements and appliances to fully utilize 
them, the company made the desired clianges, and in the 
course of years these various and successive additions , and 
alterations resulted in the establishment of very extensive 
works at the cost of a great amount of capital. 

The complainant resided in the neighborhood and was a 
spectator of what was going on. He knew what the company 
cl'aimed and wliat its position was. He knew tliat its stock 
was changing hands from time to time and that the purchas- 
ers were not informed of his claim. He knew it was gettine 
credit on the faith that it owned the entire estate. He also 

VOL. VIII. — 19 



290 Laches. 

knew that the constant drain waa steadily exhausting the ore 
and surely depreciating tlie property. 

None of these considenitions nor all of them together, were 
sufficient to prompt complainant to exhibit his claim in a 
conrt of justice. An opportunity was offered by Graveraet, 
wiio iiled a bill against him to contest his right to the very 
interest he now asserts, but he studiously remained silent. 
In the meantime the statute was wearing away whatever 
troublesome liabilities of the old partnership concern may 
have survived the bankruptcy of Fislier, and moreover, the 
persons who were privy to the set of transactions from which 
it is sought to isolate and preserve the claim made by this 
bill were passing off by death. A large number iiave gone, 
including Heman B. Ely' and Graveraet. That these per- 
sons would not be able, if now living, to furnish explanations 
wliich are wanting, can not be assumed. 

The ground of objection we refer to in complainant's case 
is pleaded by the answer, and it is vital. The only attempt 
worthy of notice to parry its effect by new matter was the in- 
troduction of evidence to show a fugitive entry by complain- 
•ant in 1857, and marked by the putting up and brief occupa- 
tion of a log shanty. This would hardly deserve the impor- 
tance complainant seems to have attached to it, if it were 
authorized by the bill. But, as already shown, there is no 
foundation for such proof in the case there stated, and it 
can not be regarded at all. ■ 

The cause is distinctly subject to the principle which, ac- 
cording to previous decisions of the court, disentitles the 
party to the aid of equity. There has been unconscionable 
delay. 

The more than neglect for so many years to bring forward 
arfy claim in court wlien so many interests and transactions 
about him and connected with him were urging him to do so 
then, if ever, and when, as he knew, the constantly increasing 
changes were multiplying what would be grounds of wrono- 
to others in case his claiuv sliould finally prevail, and where 
too, as he also knew, the truth was growing more and more 
inaccessible by the death of witnesses, the infirmity of human 

' Defendant claims title to the disputed premises by warranty deed from 
Heman B. Ely. 



EuLE V. Jewell. 291 

memory and the accidents which liappen to written muni- 
ments, can not be waived by a tribunal which has for one of 
its chief inaxims that nothing can call it into activity but 
conscience, good faith and reasonable diligence. 

The established conception of the doctrine and the condi- 
tions demanding its application will find sufficient illustra- 
tion in the following cases: McLean v. Barton, Har. Ch. 279; 
Campaii, v. Chene, 1 Mich. 400; Wewberry y. Detroit and 
Lake Superior Iron M. Co., 17 Mich. 141; Jenny v. Perkins, 
Id. 28; Eussell v. Miller, 26 Mich. 1; McVickarw Filer, 31 
Mich. 304; Eitson v. Dodge, 83 Mich. 463; Loomis v. 
Brush, 36 Mich. 40; Welster v. Gray, 37 Mich. 37; Bond v. 
Hopkins, 1 Sch. & Lef. 413; Cleggv. Edmondson, 8 DeG., 
M. & G. 787; Hovenden v. Lord Annesley, 2 Seh. & Lef. 
607; Castnerv. Watrod, 83 111. 171; Eoyal Bank of Liver- 
pool V. Grand Junction E. E., 125 Mass. 490; Brovm v. 
County of Buena Vista, 95 TT. S.. 157, 159, 160, 161: Sulli- 
ran v. Portland, etc., E. E. Co., 94 U. S. 806 ; Rarwood v. 
E. E. Co., 17 "Wall. 78; BowmoAi v. Wathen, I'How. 18!); 
Wagner v. Baird, 7 How. 234; Twin-lick Oil Co. v. Mar- 
lury, 91 C. S. 687, 591, 5'92, 593; New Albany v. Burke, 
11 Wall. 96; Bolton v. Powell, 15 E. L. & E. 32. 

As we are satisfied this ground of objection is co.nclusive 
against the complainant, it is unnecessary to speak of other 
points which might lead to the same conclusion. 

The decree must be affirmed with costs. 

Maeston and Coolet, JJ., concurred; Campbell, C. J., 
did not sit in this case. 



Rule v. Jewell. 

(Lav Reports, 18 Cbanceiy Division, 660. High Court of Justice, 1880.) 

' Laches may conflrin irregrnlar forfeiture. At a meeting of the partners 
in a cost book mine in 1874, it was stated that the mine was f 2,003 in 
debt, and a call of £25 was made upon each of the six shares of the 

■ Taylor v. Holmes, 14 Fed. 498; Livingston v. Salishwy Ore Bed, 16 
Blatchf. 549. 



292 Laches. 

mine. Two of the pavtnevs did not pay this call nnd wei'o in ai-rcnr for 
other calls. At subsequent meetings in June, 1«74, the shares of theso 
two partners were declared forfeited. The mine was still in debt in 
1878. The owners of the forfeited shares took no steps until July, 1879, 
when they made a claim, and in September, 1880, they brought their 
action claiming that the shares had been irregularly forfeited and that 
they were still partners. 

Held, that even assuming the shares to have been irregularly forfeited, 
the plaintiffs, after such delay, under such circumstances, could not suc- 
cessfully assert their claim to bo partners. 

Clarhe v. Hart, 6 H. L. Cases, 633, distinguished. 



Under an agreement made on the 11th of January, 18T1, 
Joseph Eule and Jolm T. Enle, the plaintiffs, and J. II. Jew- 
ell and W. J. Hocking and one Edward Wilkins (wlio after- 
ward assigned his interest to Hocking), became partners in a 
Cornish mine worked on the cost book principle, the nnder- 
taking being held in six parts or shares, to two of which 
Joseph Eule and J. T. Eule were entitled. In May, 1874, 
a meeting was held, when the account showed a balance of 
£2,003 against the mine, and a call of £25 a share Avas made. 
At the same meeting it was resolved that all shares on which 
anuiirs of calls should remain due on the 8th of June, should 
be forfeited. The resolutions were signed by Hocking, Wil- 
kins, and J. 11. Jewell. Joseph Eule and Jolm T. Enle did 
not pay these calls of £25 when due, and it was said that 
money was due from them on a previous call. At a meeting 
held on the 9th of June, it was resolved that their shares be 
forfeited. This resolution was conlirmed at another meeting 
held on the 24th of June, but thei'e appeared to have been 
irregularities in the meetings. There were meetings in 1875 
and in 1878, at which further calls were made, but nothing 
further was done by either of the plaintiffs until July, 1879, 
when they made a claim to their shares. On the 3d of Sep- 
tember, 1880, they commenced this action, alleging that the 
calls had been irregularly made, that the proceedings at the 
meetings were irregular, and that their shares wej'e not for- 
feited, and claiming to be partners in the mine with the de- 
fendants, J. H. Jewell and W. J. Hocking. 

The statement of defense alleged that the shares of the 
plaintiffs had been regularly forfeited, and that from 1874 to 
1879 the mine had been a losing concern, as the plaintiffs 



KuLE V. Jewell. 293 

well knew, and that it was only owing to the extraordinarj 
rise in the price of tin in the latter part of the year 1879 that 
the mine had become valuable, and the defendants claimed the 
benefit of the Statute of Limitations. 

E.IGBY, Q. C. and Chadwyck Healey for the plaintiffs. 

The power of forfeiting shares is strictissimi juris, and if it 
has been irregularly exercised, tnere acquiescence will not bar 
the claim: Clarke v. Hart, 6 H. L. C, 633. In Pr&ndergast 
V. Turton, 1 Y. & C, Ch. 98; on appeal, 13 L. J, (Ch.) 268 
the circumstances were different, Here the meeting was ir- 
regular, and due notice of the forfeiture was not given; Clem- 
ents V. Hall, 2 DeGr. & J., 173; Garden Valley United 
Quartz Mining Company v. McLister, 1 App. Cas. 39; Nor- 
way V. Howe, 19 Ves. 144. 

If the mine was so much in debt, the call was absurd, and 
it was in fact made merely to get rid of the plaintiffs. If it 
appears tliat the defendants have advanced money and have 
thereby made the mine profitable, the plaintiffs may be put 
upon terms. They were legally partners, and must remain so 
unless they are shown to have been properly removed. 

Witnesses were examined to prove the allegations made in 
the statement of claim and by counsel. The effect of the evi- 
dence is stated by his lordship in the judgment. It appeared 
that though by calls and otherwise the balance had been re- 
duced, there was, in 1878, a balance of £926 against the mine. 

HiGGiNS, Q. C, and Noethmore Lawrence, for the defend- 
ants, were not called upon. 

Kay, J., after stating the facts and the manner in which, 
on the evidence, the calls appeared to have been made and the 
forfeiture appeared to have been declared, continued: 

Now, the first question is whether that was a proper for- 
feiture of the shares. I have not heard the other side, but it 
seems to me that it was not a proper and regular forfeiture of 
the shares, according to the provisions of the Stannaries Acts, 
and I shall deal with the case as though the forfeiture was in 
point of law invalid. 

Then I have to consider what happened afterward. The 



294 Laches. 

Statute of Limitations has been pleaded, but I tliink it has 
been truly said that, there liaving been no valid forfeitnre on 
the 9th of Juno, the Statute of Limitations could not begin 
to run against the phiiiitiffs from that time. Tliey would 
i-emain sliareholders in law and in equity, if the word " share- 
iiolders " be applicable, or they would still remain partners, 
notwithstanding what was done on that day. Therefore the 
Statute of Limitations would not be a good plea to their claim 
to maintain their partnership. 

But I have to consider tiiat this was a mining adventure, 
which is, as Lord Eldon long ago said, Williams v. Atten- 
borough, T. & R. 70, a species of trade, and there is a very 
well settled course of decision, according to which I must now 
decide, whether these plaintiffs have a right to maintain tiieir 
jiresent claim after the lapse of time which has occurred 
between the 9th of June, 1874, about which time they received 
notice of the forfeiture, and the 3d of September, 1880, wiien 
they issued the writ in this action. Now, how is that delay 
accounted for? I will read from the evidence which lias been 
given by tiiese two plaintiffs themselves. [His lordship 
then read and commented on the evidence, coming to the 
conclusion that each of the plaintiffs must liave been aware 
of what had been done, and tliat neither of them, from June, 
1874, until July, 1879, ever made or suggested any claim to 
be a partner in this concern, or ever offered, nor had either of 
tliem now by the pleadings offered, to pay the calls.] In that 
state of things I have to consider whether this case comes 
within the well known authority of Prend&rgast v. Turton, 1 
Y, & C, Oh. 98; on appeal, 13 L. J. (Oh.) 268, or the later 
case of Clarke v. Hart, 6 PL L. C. 633. [His lordship then 
stated the facts of the latter case as reported.] 

Now, I want to know what similarity there is between the 
two cases. There is the broad and plain distinction that Hart 
had a legal interest in the mine. He was one of three lessees 
of the mine, and, of course, if hie share was forfeited, he must 
have been declared a trustee of that tliird share for his co-ad- 
venturers. I have nothing like that here, as it does not ap- 
l)ear that there is anything like legal property in these two 
plaintiffs. There was also an interval of time very much 
shorter than occurs in this case. Then tlie attempted for- 



EuLE V. Jewell. 295 

feitnre was a conditional forfeiture, not treated as an absolute 
forfeiture, and three years after that the bill was filed. But 
in this case I have an interval of time which more than covers 
the statutory period of limitation, by analogy to which a'court 
of equity generally acts, during which interval no claim what- 
jever was made by either of these plaintiffs upon their copart- 
ners; nor was there any offer to pay the arrears of their calls, 
unless I am to treat a statement which one of them says he 
made to Hocking, that he should raise an action when he had 
the means to do it, as being an intimation of the kind. 1 
have not heard the other side, and I do not know what Hock- 
ing would say, but I treat that as being anything but such an 
intimation as was given in the ease of Clarhe v. Hart. But 
then I am told that a rule is established by that case that if 
there be a legal interest in a person whieli has been improper- 
ly attempted to be forfeited, then, notwithstanding his lying 
by for a considerable period, that legal interest is not deter- 
mined by mere acquiescence; and I am referred to certain par- 
agraphs in the judgments in that case. I will take the most 
striking of them which occur in the judgment of Lord Chelms- 
ford, 6 H. L. 0. 655: ^' It is necessary to consider a distinc- 
tion which was suggested during the argument, which must 
be borne in mind, and which, in my opinion, will reconcile 
the authorities upon tlie subject The distinction to which I 
advert was that which has been expressed very shortly and 
very intelligibly by the difference between 'executed' and 
'ej^ecutory interests.' Where a person is obliged to apply for 
the peculiar relief afforded by a court of equity to enforce the 
j)erformanee of an agreement, or to declare a trust, or to ob- 
tain any other right of which he is not in possession, and vvhich 
may be described as an executory intereist, it is an invaria- 
ble principle of the court that the party must come promptly; 
that there must be no unreasonable delay; and if there is any- 
thing that amounts to laches on his part, courts of equity 
have always said — We will refuse you relief. With regard to 
interests which are executed, the consideration is entirely dif- 
ferent. There mere laches will not of itself disentitle the 
party to relief by a court of equity; but a party may, by 
standing by, as it has been metaphorically called, waive or 
abandon any right which he may possess and which, under 



296 Laches. 

the circumstances, tlierefore, a court of equity may say he 
ia not entitled to enforce." Now that means, that with re- 
gard even to interests which are executed, a partner may, by 
standing by, waive or abandon his right. In a later passuijo 
Lord Chelmsfurd comments on Preiidergaat v. TuHon, 1 
Y. & 0., Oh. 98; on appeal, 13 L. J. (Ch.) 268, and says 
that in that case distinct notice was given to the partner 
that his shares were forfuited, and he took no steps whatever 
to assert his interest for a period of upward of nine years. 
And without in the least degree attempting to throw doubt 
upon the decision in that case (which I may observe, by the 
way, was a well considered decision of t>vo great judges, the 
then Vice-Chancellor Knight Beltoe, and Lord Lyndhubst on 
appeal), Lord Chelmsford contrasts the case before him witli 
that case, and says, 6 H. L. C, 659, that in that case there was 
not only no such notice given, but there " was quite euiiicient 
to induce him to believe that he still continued to be a part- 
ner in the concern, that his shares had never been forfeited, and 
that therefore there was no necessity for him to do more than 
assert his rights, as he did in the correspondence which took 
place between the parties upon the subject of the forfeiture 
of the shares." 

There you have the whole gist of that decision. Lord 
Chelmsford does not say that even in the case before bim, if 
there had been a standing by for more than six years without 
any claim or assertion of right whatever, after distinct notice 
or knowledge that the shares had been purported to have been 
forfeited, he would not hold the case to come within Prfln-cZeT"- 
gast V. TuTton; still less does he suggest that Prendergast v. 
Turton was not a perfectly good decision and a binding au- 
thority. Nor do I find anything in the other judgments 
which in the least degree alters the view of the law which 
seems to have been taken by Lord Chelmsford. Lord Oran- 
■worth says, 6 II. L. C, QQi:, " with regard to the declaration 
of forfeiture said to have been made on the Slst of May, 1850, 
as a matter of fact, I arrive at the conclusion that no such 
declaration was ever made." Afterward he says that the re- 
sult of their acts "amounted to this, that the two otiior part- 
ners, Clarke and Chapman, intimated to Ilart that they lio 
longer meant to go on with him. That they considered that 



EuLE V. Jewell. 297 

liis shares were forfeited. His condact npon that was this: 
he said ' I dispute your right, I deny that ray shares are for- 
feited, and you must proceed as you thinli fit.' Now after that 
the result was, that if tliey chose to go on trading, then, 
according to all the ordinary' principles of equity, they were 
trading on behalf of the partnersliip." Then again he says 
that the argument was that " he had lost his right by lying 
by. Now, ^for that proposition I can find no authority either 
in principle or in argument, because the person wrongfully 
excluded had from the first moment denied their right to ex- 
clude him; he had said expressly, I deny your right to exclude 
me; I shall remain a partner." Lord Wensleydale says, (6 11. 
L. C, 670): " Now it appears to me that the principle to be de- 
duced from the cases oi JPrendergast v. lurton and Norway 
V. Rowe, 19 Ves. 144: is, that if a party lies by, and by his 
conduct intimates to the otiier partners in tlie concern that he 
iias abandoned his share, they may then deal with it as they 
please; if his conduct amounts to a representation of that 
sort he is estopped by it, and can not afterward complain." 

In Prendergast \^. Turton, 1 Y. & C, Ch. 98, a so-called 
joint stock company was established in 1825 to work a mine, 
and certain calls were made as to which there was a question 
whether they were validly made or not. The plaintiffs de- 
clined to pay those calls, and there was a delay of nine years, 
which might be made up to eleven years. The Lord Justice, 
then Vice-Chancellor Knight Bruce, said (1 Y. & C, Ch. 
110,): "This is a mineral property; a property, therefore, of a 
mercantile nature, exposed to hazard, fluctuations and con- 
tingencies of various kinds, requiring a large outlay, and pro- 
ducing, perhaps, a considerable amount of profits in one year 
and losing it the next. It requires, and of all properties per- 
haps the most requires, the parties interested in it to be vigi- 
lant and active in asserting their rights. This rule, frequently 
asserted by Lord Eldon, is consonant with reason and justice. 
Lord Eldon always acted upon it, and has been followed by 
subsequent judges of great knowledge, experience and em- 
inence. Now, in the present case, conceding, for the sake of 
argument, that the shareholders could not be compelled (o 
contribute beyond £50 a share, and did no wrong in declining 
to make advances beyond that sum, yet the result of aJ 



298 Laches. 

the circnmstances of this case appears to liave been that the 
naine could not be carried on without further outlay. The 
plaintiffs objected to this furtlier outlay, and then a considur- 
able discussion ensued which was substantially concluded in 
18 -'8. Some subsequent letters were written, but they did 
not, I tliink, materially vary that state of the case;" and then 
he states that they carried on the concern, that in 1837 affairs 
began to look bettor, and he proceeds: "Matters goon in 
this manner in 1836 and 1837, and it was not till J!^ovember, 
1837, when the result of the struggle had appeared, that, 
after a profit had been made by the unaaeisted efforts of tliose 
who still adhered to tlie speculation, the plaintiff and Miss 
Kent applied for and claimed their shares." Tliat is nine 
years after 1828, when the discussjon as to those calls liad 
come to an end. And he held, upon the ground of the pecul- 
iar nature of a mining concern, that the plaintiffs had no 
right to stand by and wait till it appeared clearly that it was 
worth their while, and then come and assert their interest in 
the mine. In that case the interest was just as much a legal 
interest as in this case. If this be in any sense of the term a 
legal interest, so it was in Prendergast v. Turton, 1 Y. & 0., 
Ch. 98, and there the interest was treated as havintr been 
abandoned, if that be the proper word to use, or was an in- 
terest which, in tlie more accurate language of Lord Wens- 
leydale, the plaintiffs were estopped from asserting against a 
copartner after an amount of delay which I may take to be 
nine years. That was atfirmed by the Lord Chancellor, Lord 
Lytidhurst, on appeal, 13 L. J. (Oh.) 268, 269. He says: 
" This court can never sanction this sort of conditional acqui- 
escence. To allow the party to lie by, in a case of this nature, 
to watch the course of events, to urge his claim, if it should 
be to his advantage to do so, and to abandon it on a continu- 
ance of misfortune and loss, which as a proprietor he must 
have shared, would be at variance with the plainest rules of 
justice." 

Now, I have no hesitation in saying, looking at these cases 
and considering carefully the circumstances of each, that the 
case before me comes very much nearer to Prendergaat v. 
Turton, 1 Y. & C, Ch. 98, tlian to Clafhe v. Hart, 6 H. L. 0. 
633. The differences are said to be these: It is said that in 



EuLE V. Jewell. 299 

Prendergast v. Turton, the mine was actually worked, for a 
time, at a loss, and that in this case the mine was not worked 
at a loss. But I have this fact very plainly proved, that 
tlie notice given to these plaintiffs in 1874 was that the 
balance was £2,003 against the adventurers, and it is stated 
that in 1878 it was £926 against them. So that the woi-king 
from 1874 to 1878, if not at a loss, did not clear off the bal- 
ance against the adventurers. During that time the plaintiffs 
clearly lay by, and can I have the smallest doubt that if this 
mine had turned out to be a losing affair, instead of a profit- 
able one, .they would never have asserted any claim to be 
partners? I liave not the least doubt of it. I think the Ij'ing 
by here was entirely analogous to the lying by in the case of 
Prendergast v. Turton. It was lying by to wait and see 
whetlier the concern turned out sufficiently profitable to make 
it worth while to assert their claim to be partners; and when 
they think the time is come when it is worth tlieir while to 
assert tlieir title, then they bring their action. The time dur- 
ing which they lie by being more than six years, I consider 
the analogy of the Statute of Limitations to be one which is 
applicable, as it is impossible to fey down a hard and fast rule 
what amount of time shall be sufficient in every case. 

Looking at all the facts of the case, I am- of opinion that 
that period of over six years, during which no claim was 
made, was such a lying by as in Prendergast v. Turton was 
treated as a complete estoppel to the plaintiff's right to make 
such a claim. Whether it is called abandonment or estoppel 
seems to me to be indifferent. If it were necessary to call it 
.abandonment, I should be quite prepared to hold that what 
has taken place in this case amounts to abandonment as be- 
tween the plaintiffs and their co-adventurers of any interest 
in this concern. I therefore dismiss this action with costs. 

1. Laches in standing by and allowing tenants to work mines, a ground 
for refnsing injunction to restrain tlie working: .Parrott v. Palmer, 3 Mylne 
& K. 632. 

2. Neglect to file bill for eleven months after breach of contract: Pollard 
V. Clayton, 1 Kay & J. 462; Post Specific Pkbformance. 

3. Bill for accounling by executors of deceased partner thirteen years 
after his death: Tatain v. Williams, 3 Hare's Ch. 347. 

4. Acquiescence by continued mining in joint fraud of vendor and organ- 
izers of purchasing company: Vigers v. Pike, 8 C. & F. 562; 2 Dru. & 
W. 1. 



300 Notes. 

5. Ill a suit by vendor to set aside conveyance of land for fraud, delay 
short of the Statute of Limitations may be accounted for: Warner v. 
Daniels, 6 M. R. 436. 

6. Laches no defense to decree for accounting where the suit was com- 
menced in time, and both parties were equally negligent in letting ii lie 
from year to year: Wilhelin's Appeal, 79 Pa. St. 141. 

7. Laches especially applicable in cases where the property (oil wells) is 
subject to. rapid fluctuation: Twin Lick Oil Co. v. Marbury, 3M. E. t88. 

8. Justifiable delay distinguished from laolies: Stockbridge Co. v. Hud- 
son Co., 107 Mass. 323; Post Resbuvation. 

9. The United Slates may be bound by the laches of their agents; V. S. 
V. Beebee, 17 Fed. 86. To the contrary (unless the time so long as to justiiy 
the presumption that all the witnesses are dead) : U. S. v. Southern Col. 
Co., 1 West C. R. 11. 

10. How far delay must go to amount to laches. Acquiescence in nui- 
sance caused by hydraulics held not fatal : Woodruff v. North Bloomfleld 
Co., 1 West C. R. 183. 

11. Laches need not be specially pleaded: Pratt v. California M. Co., 1 
West C. R. 87. 

12. Guarantor escapes by laches in pursuing his principal: Holl v. 
Hadley. 2 Ad. & El. 758. 



Pketty v. Solly. 301 

Pketty v. Solly. 

(26 Beavan, 606. The Rolls Court, 1859.) 

Construction of statute by the rule that the particular enactment controls 
the general enactment, and by reference to the context. 

Soil. The word soil in an inclosure act construed to mean surface. 

Vendor unable to pass minerals. Specific performance of contract for sale 
of land not decreed where the vendor can not make title to the min 
erals. 

Eeservation of minerals in Inelosnre Act. An Iiiclosure Act directed 
allotments for public and specific purposes, and that one fifth should be 
• allotted to the lord of the manor for his interest in the " soil," and that 
the residue should be divided amongst the commoners to be held in 
severalty. And it was declared that the lord might enjoy " all mines, 
minerals, quarries and other royalties," as df the act had not been passed: 
Held, that the lord retained his rights to the mines and minerals allot- 
ted to the commoners m severalty. 

The defendant agreed to pnrchase from the plaintiffs a 
small piece of freeliold land, with a cottage erected thereon, 
which had formerly been allotted by the commissioners under 
an Inelosnre Act of the 45 Geo. 3, c. xcii. 

The defendant insisted that the plaintiffs had not shown a 
right to the minerals, and he refused to complete. 

The plaintiffs thereupon instituted this suit for a specific 
performance; and a reference was made as to title. The chief 
clerk found that a good title could be made to the allotmeiit, 
cottage and premises, except as to the mines and minerals, (if 
any) under them, to which a good title could not be made. 

A motion was made by the plaintiffs to vary the certifi- 
cate. 

The question turned on the terms of the act of Parliament, 
the material parts of which were as follows: It recited that 
there were (1) common meadows, (2) a tract of waste called 
Canford Heath, of 9,000 acres, (3) waste lands in Poole, 
and (4) waste mudlands. That Mr. Arrowsmith claimed to 
be the lord of the manor, and to be entitled " to the right of 
soil " of and in the lands, subject to the rights of common, 
etc., and that "it would be advantageous to the several pro- 
prietors and persons interested in the said common meadows, 



302 Land. 

heaths, waste lands and commonable ground, if the same 
wefe divided, and specific parts tliereof allotted in proportion 
to the propei'tj rights of common and other interests of the 
proprietors therein;" and the mudlands were allotted, etc. It 
then appointed commissioners with tlie iisnal powers. 

By the l-tth section, all the expenses of carrying the act 
into execution were to be paid by a sale of the waste. 

By the 17th section the commissioners were to allot to the 
surveyors of the highways "such parts and parcels of the 
heath and waste lands thereby directed to be divided and en- 
closed " as they should think proper, " as and for public water- 
ing places for cattle, and for stone nnd gravel pits, sand and 
clay pits, and for laying and depositing manure and rubbish," 
and which allotment^ were forever thereafter to be used by 
the surveyors of the highways. 

The 19th section directed an allotment not exceeding two 
acres to be made to the corporation of Poole, for supplying 
the town with water, for the purpose of erecting a conduit 
head. 

The 20th directed an allotment for a turf common for the 
cottages and tenants within eacli tithing. 

Tlie 21st, 22d, 23d and 2-lth sections directed allotments 
"of the waste lands" directed to be "divided" in lieu of 
tithes. 

The 27th section directed the commissioners to allot one 
sixteenth of the waste lands that should remain unto Edward 
Arrowsmith, lord of the manor of Great Canibrd, " in lieu of 
and in full compensation for his and their right and interest 
in and to the soil of the said waste land respectively, which 
shall be awarded by the said commissioners to be divided and 
allotted under and bj'' virtue of this act." 

The 28th section directed a certain allotment of the residrte 
to be made to certain corporations in Poole; and the 29th di- 
rected the commissioners (after making the above allotments), 
to " divide, set out and allot" all such parts of the said com- 
mon meadows and other commonable lands, and also of the 
residue of the said waste lands, intended by this act to be di- 
vided and allotted, as shall in their judgment be fit and 
proper to be divided, allotted or inclosed, to be held in sever- 
alty unto and for the several proprietors thereof, and persons 



PllETTY V. S0I.LY. 303 

interested therein, in satisfaction of their riglits of, in, over 
and upon the common meadows, commonable lands and 
waste lands so to be divided and allotted. 

The 58th section was as follows: "And be it further en- 
acted, that nothing in tliis act shall extend or be construed 
to extend to prejudice, lessen or* defeat the right and title of 
the said Edward Arrowsmith, his heirs or assigns, trustee or 
trustees as aforesaid, as lord or lords of the said manor of Great 
Canford,of, in or to any seignories, royalties, or other manorinl 
rights incident or belonging thereto (other than a/nd except 
the right to the soil of the waste lands, for which a compensa- 
tion is hereinbefore directed to be made), but that the said 
Edward Arrowsmith, or the lord or lords of the said manor 
for the time being, and all persons claiming by, from, under 
or in trust for him and them, shall and may, from time to 
time, and at all times forever hereafter, have, hold and enjoy 
all rents, heriots, forfeitures, services, fines, courts, perqui- 
sites and profits of courts, and all mine»^ minerals, quarries 
and othes royalties, jurisdictions and privileges to the said 
manor incident, appendant, belonging or appurtenant (ex- 
cept clay and the right to the soil as aforesaid), in as full, am- 
ple and beneficial a manner, to all intents and purposes what- 
soever, as he and they might or ought to have held and en- 
joyed the same in case this act had not been made." 

Mr. R. PAr.MEE and Mr. Joi-life, for the plaintiflTs, con- 
tended, that the word " soil " ,in the 27th section of the act 
included mines and minerals, and that the lords being com- 
pensated by the allotment directed to be made to them by that 
section for their right and interest in the mines and minerals 
in the waste lands, as part of the soil, they must be treated as 
excepted from the reservation of the lords' rights contained 
in tlie 58th section, and consequentl}', that they belonged to 
the commoners to whom the waste lands were allotted. 

Mr. Lloyd and Mr. Hemming, for the defendant. 

The following cases were cited: Riddellv. White, 1 Ans. 
281; Wa/rd v. Cecil, 2 Yern. 711; Townley v. Gibson, 2 
Term B. 7Q1; MicMethwait v. Winter, 6 Esch. 644. 



304 Land. 

The Master of the Rolls. 

The question in this case arises on the construction of 45 
Geo. 3. xcii, and depends on the operation and effect of the 
58 th section of that act. 

The general rales which are applicable to particular and 
general enactments in statutes are very clear; the only diffi- 
culty is in their application. The rule is that wherever there is 
a particular eiiactir)ent and a general enactment in the same stat- 
ute, and the latter, taken in its most comprehensive sense, would 
overrule the former, the particular enactment must be opera- 
tive, and the general enactment must be taken to affect only 
the other parts of the statut* to-whicli it may properly apply. 
See Standen v. The University of Oxford, Sir W. Jones, 
17; Bonhain's Case, 8 Co. Eep. 118 b; Chxircliill v. Crease, 
5 Bing. 180. 

Again, wherever two parts of a statute are contradictory, 
the court endeavors to give a distinct interpretation to each 
of them by looking at the context. 

The question upon this Inclosure Act arises in this way: 
the act relates to certain interests of the lord of the manor of 
Canford. By the 58th section it reserves to the lord of ti>e 
manor all manorial rights except the right to the soil, and en- 
acts that he may thenceforth hold and, enjoy all rents, etc., 
"and all mines, minerals, quarries," etc., incident to the man- 
or (" except clay and the right to the soil as aforesaid "), as if 
the act had no't been made. ' 

The question is, whether this clause extends to the interest 
of the lord in all the lauds inclosed under this act of Parlia- 
ment, or only to a portion of them. If it is expressly stated, 
in other parts of the act, that the ininps and minerals are con- 
tained in the enactments before mentioned, and if there are 
other parts of the act to which this general clause would ap- 
ply, I should be of opinion that the general clause would not 
affect the previous particular enactment. It is, therefore, 
necessary to observe what the act professes to do. It recites, 
in effect, that there are four different sort,s of property to be 
inclosed, namely, certain common meadow, Canford Heath, 
land in the town of Poole, and mudland; and the mode in 
which it deals with them is as follows: 
The 12th section gives directions as to how the old inolos- 



Pretty v. Solly. 305 

nres are to be dealt with; the 17th and 19th direct allotments 
to be made for public purposes, including a conduit head, and 
the 20tli section directs the second allotment for turbary for 
the cottagers; and the sections from 21 to 2i direct the third 
allotments, which are in lieu of tithes. 

Then comes the 27th section which directs the fourth allot- 
ment to the lord of the manor, in lieu of his right and interest 
in the soil of the waste lands. 

The 28th directs the fifth allotment of certain lands to the 
town of Poole, and the 29th section directs the sixth allot- 
ment of the residue for the benefit of the commoners. Then 
comes the 58th, or the special saving clause. 

The question is, whether the reservation of minerals ex- 
tends to all the lands inclosed in which the lord has any in- 
terest, or is confined to certain, and if so, to what portions of 
them. 

I think I can dispose of the cases cited; none of them are 
precisely in point. In one case, Towiiley v. Gibson, 2 Term 
Rep. 701, the mines were not reserved to the lord, and there 
can be no question that the case would apply, if the words 
"mines and minerals " were notspecially mentioned in tlie 
58th clause, and that the lord's right to them had been dis- 
posed of by previous clauses. The 29tli section, which directs 
the allotments to be made to the commoners, and the 27th, 
which gives compensation to the lord for his right to the soil, 
are quite general, and it is clear that if the question depended 
on those two sections alone, they would necessarily include 
all the minerals; but the 58tli clause says, .that nothing 
therein contained shall prejudice the lord's right to the mines 
and minerals. 

It is said that the 58th section does not apply to or include 
the waste lands when ihclosedand allotted to the commoners, 
because, by the special enactment (^the 27th) a compensation 
is provided for the lord for his interest in these lands, and 
that there are otlier lands to which this section maj' apply, 
namely, those which are to be allotted for public purposes 
and to provide fuel for the cottagers, as to which nothing is 
done to disturb the right of the lord to the minerals. 

I can not, however, see anything to limit this 58th section, 
and I think so the more, from the peculiar iise of the word 
VOL. viti— 20 



308 Land. 

"soil." Prima facie, it would include every tluii:? above or 
below it; but the word " soil " is throughout tliis act used as 
distinct from the word "land." 

The 6th section authorizes the commissioners to determine 
anj' dispute of any parties " interested in the said lands," but 
not their title, and the 7tli declares the determination of the 
commissioners, touching? the ri.ij^ht of the soil, to be final. 
My impression is that in this act of Parliament the use of 
the word "soil" is distinct from "land." 

This act directs that the allotment to be made to the lord is 
to be "in lieu of and in full compensation for" his "right 
and interest in and to the soil." 

Now, referring to the dictionaries, I find that Johnson's 
second definition of the word "soil" is "earth considered with 
relation to its vegetative qualities." And in Eichardson, the 
definition of the word is this, "The earth, land, ground; land 
with reference to its produce." 

There is a clear distinction between "soil" and "land." 
Webster's third definition of soil is, " 3. The upper stratum of 
earth; the mould, or that compound substance which furnishes 
nutriment to plants, or which is particularly adapted to sup- 
port and nourish them." 

I think the word "soil" throughout the act is used as 
equi^^rtlent to "surface," though if the question rested on the 
'JTtJi and 28th sections alone, without the 58th or saving 
clause, I should have held that the word "soil" included the 
minerals, and that these sections deprived the lord of his right 
to them. But I see nothing in these clauses, or in the act, to 
limit the operation of the 58th section, and I can not, with- 
out introducing additional words into that section, limit its 
operation to the mines under one species of allotment more 
than another; they are all given alike, and the 27th clause, 
giving the lord compensation for his right to the soil of all 
the lands awarded, is consistent with this view, and with the 
distinction between the words "laud" and "soil " as used in 
the act. 

The chief clerk's certificate must, therefore, bo confirmed. 

On further consideration the bill was dismissed with costs. 



Manning v. Feazier 307 

Manning et al. v. Feaziee. 

(96 Illinois, 279. Supreme Court, 1880.) 

' Real estate, what constitntes. Coal and other mineral in a mine and 
under the soil are real estate, and as such are capable of being conveyed 
like any other real estate, and when once conveyed by deed, may pass 
by inheritance or deed of conveyance. 

Vendor's lien lor price of mineral in gronnd sold. Where the owner 
of land,- by deed, bargains, sells and conveys to another, his heirs and 
assigns, all the coal, limestone, iron ore, rock oil and other mineral in, 
upon or under the land, with an express license to the grantee, his heirs 
and assigns and laborers, to enter and search for said minei'als and to 
dig, mine, explore and occupy with the necessary structures, etc., and 
to mine and remove the coal, etc., for which grant the purchaser agrees 
to pay to the grantor a stipulated price per ton for the various minerals 
removed, payable quarterly, the grantor will have a vendor's lien on the 
coal and mineral not mined and removed, for the purchase money, 
which he may enforce by a sale of the coal and mineral not taken from 
the ground. In such case "the amount of the purchase money falling 
due each quarter depends upon the quantity of coal, etc, mined and 
removed from the land during the three months next preceding. The 
price agreed to be paid per ton is only a mode of ascertaining the 
amount of purchase money to be paid for the conveyance of the coal, 
etc., in the mine. 

Same— Waiver of lien— Its extent. If a deed conveying coal and other 
mineral in the ground on a credit, to be paid for quarterly as the same 
are mined and removed, authorizes the sale of the coal, etc., before pay- 
ment is to be made, that will only be a waiver of the vendor's lien pro 
to»fo for what is thus removed, but not for the coal, etc., still in the 
, mine. 

License — Not transferable. A mere license in writing to mine, remove and 
sell coal, etc., the product of such mining to be paid for at a given price 
per ton, is not transferable either by assignment or deed so as to pass 
any legal right or title. 

Covenant in deed— Of its character. A covenant in a conveyance of 
mineral in the ground, by the grantee to the grantor, to pay the latter 
a certain sum per ton for the mineral removed, is not a collateral cove- 
nant, but is a covenant to pay the purchase money for the sale of all the 
mineral in the manner specifie 1. 

' The syllabi in this case are copied literally from the official report and 
the arguments of counsel the same. It will be noticed that three out of the 
six or seven judges dissented, and the case would have been discarded on 
that account, but for the importance of the subject and the novelty of the 
view taken of the subject. 



308 Land, 

Writ of error to the Appellate Court for the Third District, 
the lion. 0. L. IIigbke, Presirlini^ Justice, and the Hon. 
Olivee L. Davis and Hon. Lyman Laoi.:y, Justices; heard in 
that court on error to tlie Circuit Court of Vermilion County, 
the Hon. Oliver L. Davis, Judge, presiding. 

Mr. James E. Moneoe, for the plaintiffs in error. 

A vendor's lien being secret is not favored: Tiichards v. 
Learning, 27 111. 432; Conover v. Wwrren, 1 Giim. 602; 
Boyntoix V. Ohamplin, 42 111. 64; DooUUle v. Jenkins, 55 
Id. 402. 

The right of resale before the time of payment is a waiver 
of the vendor's lien, even if it would otherwise have, existed: 
Ex parte Paries, 1 Glyn. & Jam. E. 228; Brown v. Oilman, 
4 Wheat. 200. 

If a sale is made on the personal responsibility of the 
vendee, no such lien will exist: 1 Lead. Cases in Eq., part 1, 
p. 487; Albert Co. v. Western Soc, Law Eep. 11 Eq. Cases, 
178 ; Uarl of Jersey v. Briton Dock Co., Law Eep. 7 Eq. 
Cases, 412. 

A vendor's lien exists only on the sale of land for the pur- 
chase money agreed to be paid as such. If the land is, by the 
terms of the contract, to be converted into personal estate and 
removed and paid for as such, after being so converted and re- 
moved, the sale is, in all essential respects, a sale of chattels, 
and no lien can be implied. 

A contract for the sale of standing wood, to be cut and car- 
ried away by the vendee, is to be construed as passing only 
an interest in the trees when they are severed from the free- 
hold. They then pass as personal property: Douglas v. 
Shumway, 13 Gray, 502; Claflin v. Carpenter, 4 Mete. 580; 
Smith V. Surman, 9 Barn. & Cress. 561; Marshall v. Oreen, 
1 Law Eep. C. P. Div. 35. 

It is not material whether the severance is to be made by 
the vendor or vendee: Whitmarsh v. Walker, 1 Meto. 315. 

There is no lien in favor of the vendor of chattels after 
possession has been delivered to the vendee, or when, as here, 
the sale is made on credit: Benjamin on Sales, Sec. 797; 
Parks V. Hall, 2 Pick. 206; Cade v. Brownlee, 15 Ind. 369. 



Manning v. Feazier. 309 

When the consideration for the conveyance of land is the 

covenant of the grantee, and such covenant is substituted for 

the purchase money, or taken as a mode of payment of tlie 

nrice of the land, the vendor's lien will not be implied — it will 

je waived. 

If the covenants of the vendee are substituted for the pur- 
chase money and taken as a mode of payment for the land, 
the money due for a breach of these covenants is not purchase 
money, but simply damages, and there is no vendor's lien: 
MoKillip V. McKiUip, 8 Barb. 552 ; MoCondlesh v. Keen, 
13 Gratt. 615; Patterson v. Edwards, 29 Miss. 271. 

I refer to the following cases as announcing the same rule: 
Brawley v. Catron, 8 Leigh, 522; Parrott v. Sweetland, 3 
Myl. & Keen, 655; Winter v. Loo'd Anson, 1 Sim. & Stu. 
4:35; Clark v Rqyle, 3 Sims. Ch. 600. 

The vendor's lien will not arise if the amount of the con- 
sideration is uncertain and unliquidated: 1 Perry on Trusts, 
See. 5i35. 

The bill does not aver a case of complicated accounts, nor a 
case involving any fiduciary relation, nor does it seek any dis- 
covery. The items are all on one side. The jurisdiction on 
the ground of acconnt utterly fails: Porter v. Spencer, 2 
Johns. Ch. 169; Pearl v. Washville, 10 Yerger, 179; Din- 
widdie v. Bailey, 6 Vesey, 136. 

But if there was a case for an accounting, the court erred 
in not referring the case to a master to take an account; Moss 
v. McCally. 75 111. 190; Qiiayle v. Guild, 83 Id. 553. 

Mr. p. D. Evans and Mr. C. M. Swallow, for the defend- 
ant in error. 

The main question now before the court is whether, under, 
the facts and circumstances as they appear in the hill, a ven- 
dor's lien exists in favor of the defendant in error, and can be 
enforced. 

That by the agreement copied in the record there is an ab- 
solute sale and conveyance by Fi'azier of real estate to Squire 
and Payne, is fully settled by the following decisions and the 
authorities therein referred to: Caldwell v. Fulton, Zl Pa. 
St. 475-, Massot v. Moses, 3 S. C. 168, reported in 16 Amer- 
ican Eeports, 697. 



310 Land. 

While it is trno that such liens are not favored by the 
courts, yet, when they are shown to exist, they must be en- 
forced. They are maintained to protect the vendors of real 
estate and are the creatures of the vigilance of courts of 0(|uity : 
Wilson v.'Lyon, 51 111. 169; J^i/cr v. Martin et iil.,4: Sciun. 
151. 

Illinois has favored and enforced the rcMuedy to n greater 
extent than most of the other States: Orove v. Miles, 71 
111. .376; Grove v. Miles, 68 Id. 339. 

The consideration money remains a lien on the property 
until paid for, and no one could reasonably suppose that he 
could buy the property clear of the duty of payment. It is 
charged upon the land and stands in the title. So the Su- 
premo Court of Pennsylvania has decided in a somewhat 
similar case: Neui^' Appeal, 31 Pa. St. 293, and see authorities 
therein referred to. 

If a vendor's lien exists in favor of Frazier, subsequent pur- 
chasers took with notice of such lien, and it can, therefore, be 
enforced against them. 

The agreement was spread at large upon the records of the 
county where the real estate conveyed is situate. This was 
notice to all, of its terms, conditions and provisions. They 
stood in the chain of title, and purchasers took with notice of 
them : Chicago, Rock Island and Paoifio Hailroad Co. 
V. Kennedy, n^ 111. 361; Cordova v. Hood, 17 Wall (U. S.) 1. 

The subsequent purchasers, who are parties to the bill, are 
chargeable with notice of the non-payment of the purchase 
money. 

That which is sufficient to put purchasers upon inquiry is 
good notice: Buasell v. Hanson, 76 111. 171; Baboock v. 
Lish, 57 Id. 329; Parkers. Foy, 5 Am. Eep. 486; Hamilton 
V. Nuk, 34 Conn. 509. 

Mr. Justice Walkke delivered the Opinion of the court. 

Defendant in error entered into a written contract, on the 
25th day of February, 1865, with John K. Squire and O. D. 
Payne, by which ho, in consideration of one dollar and the 
agreements contained in the contract, bargained, sold and con- 



Man3s-ing v. Fkazier. 311 

vej^ed to tliein, their heirs and assigns, all of the coal, lime- 
stone, iron ore, rock oM, and otl)er minerals in, upon or under 
a certain farm or tract of land, which was particularly de- 
scribed, and containing TOO acres. The deed granted to 
them, their heirs or assigns, as well as their laborers and 
workmen, the right to enter upon and search for sucli miner- 
als, and to dig, mine, explore and occupy with necessary 
structures and buildings, and to mine and remove the coal, 
limestone, etc. And the parties of the second part were 
bound to enter upon and make search for coal, etc., within 
two years from that date. Thej', by the agreement, had the 
right to abandon the land and mining operations and remove 
all structures, etc., when the coal should be exhausted. 

Tlie parties of the second part were bound to have prej^ara- 
tions made for taking out coal for market within two years. 
They bound themselves and their assigns to pay to the party 
of the first, part, twelve cents for each ton of coal and lime- 
stone mined and removed from the land, and for ore ten cents 
per ton, payments to be made quarterly. The agreement was 
recorded in the proper office. 

Afterward, the parties of the second part assigned the agree- 
ment to defendants. Sawyer, Manning and Clement. It is 
alleged that they entered under the agreement, and had mined 
and removed 25,000 tons of coal from the land, but had not 
paid the stipulated price therefor, or any part thereof, quar- 
terly or otherwise; that three thousand dollars are due to 
complainant, under the agreement, and that sum is a part of 
the purchase money for the coal thus sold and has become, 
and is a lien on the coal and other minerals not yet mined- or 
removed from the land; that complainant has never received 
any security for the pui chase money, and has not waived or 
discharged it. 

The bill alleges that Payne did not part with all of his in. 
terest in the contract, and that other parties, naming them, 
claimed some interest in the contract. 

The bill makes all persons charged with claiming an inter- 
est in the agreement, parties, and prays that an account be 
taken and tiie sum found due paid, and in default thereof the 
coal and other minerals still in the land be sold, and the monej' 
arising from the sale be applied in payment, of the amount 
that should be found due to complainant. 



312 Land. 

Clement answered, denyinis: that Sawyer and Manning were 
tlie assiirnees of Sqniro and Payne, but that they did assign to 
one McGillen, who afterward assigned to Sawyer, Manning 
and Clement; tliat he has never been concerned at any time 
ill mining coal on the land, and denies that his one third in- 
terest is liable for tlie payment of the money claimed to be- 
dne. 

Sawyer, Paiyne and Crosby filed a demnrrer to the bill. 
This demurrer was overruled by the court, and the demurrants, 
lailed tu answer. The bill was dismissedi as to Clement, and 
rlie relief prayed was granted as to the other defendants. 
Tiiey appealed to the Appellate Court for the Third District, 
in which the decree was affirmed, and the record is brought to 
this conrt on error. 

The question, is presented,, whether these f:icts, admitted by 
the demurrer, afford grounds for the relief sought. Does 
coinplainamt hold a vendor's or implied lien on the coal or 
minerals in the mine, andi not yet removed, for the unpaid 
purchase money? 

That the coal and other minerals in the mine, under the 
soil, was real estate, is too plain to admit of discussion. And 
it is equally true and manifest that, as such, it was capable of 
being conveyed like other real estate; and the coal, stone and 
ore thus situated was conveyed by complainant to Squire and 
Payne, and they 'thereby received an estate caj^able of being 
inherited and conveyed to others; and the bill alleges, and 
the demurrer admits, the estate was conveyed by Squire 
.and Payne to plaintiffs in error. It, then, appears that com- 
plainant was a vendor, and, being a vendor, does he hold a 
lien that may be enforced against the remaininif coal, stone 
and ore thus conveyed and not removed from the mine? 

It is insisted that the money claimed to be due is not pur- 
chase money, hut is due, if at all, for and as the price of the 
coal after it ceased to be real estate and had become personal 
property; that no money became due until the coal became 
personalty, and the agreement was to afterward pay for 
the coal as personalty and not as real estate. It is unde- 
niably true that tlie time for payment did not elapse until 
after the coal had been changed from real to personal prop- 
erty. And if, according to t le terms of the agreement, the 



Manning v. Fkaziee. 313 

title to the coal did not vest in plaintiffs in error until the 
coal was mined and, removed, then comf/Jainant sold and they 
purcliased coal as personalty and not as realty, and whatever 
is due is purchase money for chattels and not for real estate* 
No: rule of equity would justify the decree as a, lien oil the 
land, or the coal as land, for the purchase money of chattels^ 
unless such a lien, should be reserved by express agreement. 
But is this the purchase money of the chattels, or of the 
real estate sold and conveyed by complainant? There can be 
uo pretense that he ever received the price for which he sold 
the minerals as land. 

If the price agreed to be paid for each ton of coal removed 
was, however, but a mode of ascertaining the amount of pur- 
cliase money to be paid for the conveyance of the coal and 
other minerals in the mine, then the money as it became due 
was purchase money for the coal conveyed, as realty. The 
fair and reasonable construction of the instrument, we think, 
is that it was a sale and conveyance of the coal in the mine 
on credit, and to be paid at stated periods after the coal was 
removed, and that the amount of each of these quarterly pay- 
ments was left indefinite, and the amount to be ascertained by 
computation from the number of tons removed during the 
previous three months, at the sum named for each ton. The 
time for payments to be made was not definitely fixed, and 
the amount of each payment was left contingent, depending 
upon the amount of coal removed during each period. But 
the money thus to be paid was purchase money for the con- 
veyance of the coal, stone and ore. Tiie title to the coal un- 
doubtedly vested in the grantee in the 4ced, and there is no 
pretense tliat it has ever been paid for, or that any other mode 
of payment was ever ageeed upon by the parties. If the pur- 
cliase money for the coal sold and conveyed was not to be 
paid in this manner, in what mode was it to be paid? 

But it is said that complainant waived the lien because the 
deed contemplates the sale of the coal before pajnnents are 
to be made. The deed does not give the privilege, in terms 
at least, to sell any portion of the coal before payment, but if 
it does by implication, it would only be a waiver fro tanto 
for the coal thus removed, and not as to that still in the 
mine. And the bill does not seek to enforce a lien against 



314 Land. 

the coal already removed. If it were, then there -would be 
force in the position. Were one person to sell to anotlier, 
land covered with timber, and invest him with title by a con- 
veyance, and the grantor wonld thereby empower him to re- 
move and sell the timber, or suppose he were to consent in 
writing for the vendee to do so, and he were to remove and 
sell all of the timber, would any one contend that the vendor 
had tliereby waived his vendor's lien ? Surely not. All can 
see he would thereby waive his lien on tiie timber in the 
hands of a purchaser, but not on the land itself.- So of the 
removal of stone, gravel, sand or earth. 

It is said the decree gives a lien on the coal not yet 
mined and removed for the purchase money thereon, which is 
not due. This is manifestly a misconception of the question. 
Wiien the conveyance was made, tiie lien attai'hed to all of 
the coal, etc., in the mine. It attached as a whole and not in 
fragments. The price for each ton did not become a lien on. 
each several 'ton, but the whole jMirchase money became a 
lien on all of the coal, etc., in the entire mine, and the sum 
which became due Cn the removal of coal remained as it wns 
previously, a lien on the balance which remained to be mined. 
Hence the decree is for the purchase money which had be- 
come due, and for the sale of the unmined coal for its pay- 
ment, thus enforcing the lien. 

It is urged that tiiis is but a license to mine, remove and 
sell coal, etc., and to pay therefor the prices fixed on the va- 
rious minerals. If this be true, plaintiff in error acquired no 
legal rights by the assignment of the deed, whether by con- 
veyance or otherwise. If this was but a license to Squire and 
Payne, then it is not the subject of a conveyance of any len-al 
right or title, yet plaintift' in error claims the right to mine, 
remove and sell the coal mentioned in the grant. 

Again, it is claimed the agreement to pay for the coal is 
but a collateral covenant; and in support of the proposition, 
cases are referred to where conveyances were made, and the 
vendee covenanted to pay the grantor an annuity for life, or 
to support him for life, or to pay money to others, which 
were held to be collateral covenants, and a vendor's lien did 
not attach. The cases are, no doubt, correctly determined, 
but they are entirely unlike this. Here the covenant is to 



Manning v. Fkaziee. 315 

pay the purchase money directly to the vendor, in the man- 
ner specified, "We fail to see that this covenant to pay is col- 
lateral, or relates to anjt thing collateral, to this conveyance. 
The sum named for each ton of coal, stone or ore removed, 
was but a mode of ascertaining the amount of consideration 
to be paid at each installment, and not as a sale of each of the 
various minerals vfIigi' removed; and, if this be true, and of 
which we entertain no doubt, when the conveyance was made, 
the unpaid purchase money became a lieu on all of each kind 
of mineral, and when the money became due by removing one 
kind, it did not release or remove the lien on anotlier kind. 
The minerals were sold, the purchase money was not paid, 
and, as complainant did. nothing manifesting an intention to 
waive his vendor's lien, equity will hold that it attached and 
must be enforced for the amount of purchase money due and 
unpaid. 

This case is wholly unlike those where the grant is of per- 
sonal [property savoring of the realty, which was to be re- 
moved and sold as chattels, and the vendor endeavored to en- 
force an implied or vendor's lien against the chattels. Such 
a lien does not attach to chattels. After this coal, stone or 
ore is mined, complainant has no lien on the chattels, but as 
long as it remains undisturbed in the mine it is realty, and 
is subject to the lien. 

After cai-eful consideration of the whole case, we are unable 
to perceive any error, and the decree is afiirmed. 

Decree affirmed. 

Scott, Sheldoit and Scholfield, JJ.: We do not concur 
in this opinion. 

1. Warranty runs with the mine as in other eases of land: BlacJeweU v. 
Atkinson, 14 Cal. 470; Post Warranty. 

2. The law of descent applied to mines as realty: Carhart v. Montana 
Co., 1 Mont. 245. 

8. Mining claims are real estate: Houtz v. Gishorn, 2 M. R. 3iO;Mer- 
ritiv. Judd, 6 M. R. 62. 



316 Lease. 

ASTRY V. BALLiiED. 

(2 Modern Rep. 193; King's Bench, 28 and 29, Charles II.) 

Men's grants must be taken according to common intendment, not 

straining the language to the destruction of the inheritance. 
' Mine unopened is no mine. A mine is not properly so called till it is 

opened; it is but a vein before. 
Open and unopened wines. Under leasi of lands not mentipaing mines. 

the lessee tnay work the open but not the unopened mines. 

In an action of trover and conversion for the taking of co^Is, 
upon not guilty pleaded, the jury found a special verdict. The 
case was thus, viz.: 

That one J. K. was seized in fee of tlie manor of Westerly, 
and being so seized did demise all the messuages, lands, tene- 
ments and hereditaments that lie had in the said manor, for a 
term of years, to N. R., in which demise tliere was a recital, of 
a grant of the said manor, messuages, lands, tenements, com- 
mons and mines, but in the lease itself to E,. the word mines 
was left ont, Afterward the reversion was sold to the plaint- 
iff, Astry, and his heirs, by deed enrolled,"and at tlie time of 
this demise there were certain mines of coals open, and others 
which were not then open, and the coals for which this, action 
of trover was brought were digged by tlie lessee in those mines 
wliich were not open at the time of tlie lease, and whether he 
had power so to do was the question. 

It was said that when a man is seized of lands wherein, there 
are mines open and others not open, and a lease is made of 
these lands, in which the mines are menti6ned, it is no new 
doctrine to say that the close mines shall not pass. Men's 
grants must be taken according to usual and common intend- 
ment, and when words may be satisfied, tliey shall not bo 
strained further than they are generally used, for no violent 
construction shall be made to prejudice a man's inheritance 
contrary to the plain meaning of the words. 

A mine is not properly so called until it is opened; it is but 

1 Shaw V. Wallace, 25 N. J. Law, 453j Post Tkbspass; Crouch v. Puryear, 
1 Rand, 258; Post Wasie. 



Smith v. Moeeis. 



Cll 



a vein of oOals before, and this was the opinion of Lord 
Coke in point in his First Inst., 54 b, where lie tells us that 
if a man demise lands and mines, some being opened and 
others not, the lessee may use the mines opened, but hath no 
power to dig the unopened mines; and of this opinion was the 
whole court; and .Justice Twisden said that he knew no reason 
why Lord Coke's single opinion should not be as good an 
anthority as Fitzherbert in his J^at. Br. on the Doctor and 
Student. 



^ Smith et al. v. Morris. 

(2 Brown's C. C, 311; 2 Dickens, 697. High Court of CHanoery, 1788.) 

^Lessee of exhausted colliery relieyed in equity. Plaintiff, lessee of a 
colliery at a rate of so much per wey, the colliery becoming not worth 
working, and plaintiff offering to pay for all the coal that could be got: 
Relieved, upon terms, against tlae future rent and the covenant in the 
lease to work the colliery. 

Bill by the plaintiffs, representatives of Clmnncy Towns- 
hend, Esq., deceased, lessee of a colliery from defendant. 

By lease of the 24th of May, 1769, the defendant demised 
to the said Chauncy Towtishend a piece of land in the parish 
of LaTigevilack, in Glamorganshire, part of a tenement called 
Pwlyr Air, and all the veins, etc., oficoalor culm whicli then 
were or should be opened in or under the said tenement, from 
the 26th of March then last past, for forty -five years, at the 
yeai'Iy rent of 9s. per annum for the piece of land, and 30.?. 
per acre for the rest of the tenement, which should be used on 
the surface thereof for tlie purposes of the colliery, and pay- 
ing, in respect of the coal works, to defendant, etc., 9s. 6d. for 

1 S. C. at law, 6 M. R. 22. 

^ As to where equity will or will not relieve in like cases, see Wadman v. 
Galcraft, 10 Ves. 67; 12 Ves. 334; Davis v. West, 12 Ves. 475; Sanders v. 
Pope, 12 Ves. 282; Sparks v. Liverpool Waterworks Co., 13 Ves. 428; Hill 
V. Barclay, 18 Ves. 56, 60; Reynolds v. Pilt, 19 Ves. 134; Mellers v. 
Duke of Devonshire, 16 Beav. 255; Ridgway v. Siwyd, 8 M. R. 414; Talhot 
V. Ford, 13 Sim. 173. 



318 Lease. 

every wey of coals or cnlm wliicli should be wronirlit, raised 
or landed (except as tlierein excepted), the said rent to be snb- 
I'ect to such deductions as after mentioned, viz.: that if the 
lessee should in any year use or sell more coal or culm, for 
wbicii he was to pay in money, than 1,000 weys, he was to pay 
only 9s. per wey for the overplus, provided the defendants had 
received 9s. Qd. per wey upon 1,000 weys for every year the 
lessee should have worked. And the lessee covenanted in the 
lease that he would diligently, at his own costs, try for veins 
of coal, and use his utmost skill to come at the same, and get 
into working thereof, within three years, by such pits, engines, 
etc., as were usual, and would, within one month after he 
should have sunk such a pit, constantly (unless hindered by 
unavoidable accidents) work and raise 900 weys of coal year- 
ly, if so much good, merchantable coal might be had out of 
the same; and in case so much coal can not be had (without 
working the pillars necessary for supporting the work) would 
pay to the defendant, etc., 9s. Qd. for every wey of coals whicii 
he, etc., should neglect to raise, and wliich should be deficient 
of such quantity of 900 weys; the money for tlie deficiency 
to be paid at the end of every year; and if he should neglect 
to sink a pit within three years, he should pay the defendant 
9s. Qd. per wey yearly, for 900 weys, until he should have 
sunk such pit. And there was a proviso in the deed tliat in 
case, with usmg due diligence, there should not he found a 
sufficient quantity of coal to ijoorh 900 weys a year, or if 
the lessee during the term should have worked all the coal, 
except the necessary pillars for the supporting the work, from 
thenceforth the lessee should be discharged from the covenant 
for working 900 weys of coals a year, and from all payments 
by reason of not working the same. 

And there was also a covenant that the lessee should be at 
liberty to work and burn coal in the fire engine. 

And there was also a covenant by which the lessor was to 
be supplied with coal for his family at the expense of getting 
the same. 

Ohauncy Townshend, the lessee, died in 1770, and by his 
will and subsequent transactions the lease became the prop- 
erty of the plaintiffs, who made trials for coals on the land, 
but could not sink a pit within the three years, but in 



Smith v. Mokkis. 319 

1772 began to sink a pit which was completed in 1778, and 
in that year raised 1,147 ways of coals, in the next year 1,000 
weys, for which the defendant was paid at the rate of 9s. Qd. 
per wey. 

The plaintiffs continued working the colliery till 1780, 
when very great breaks and faults happening in the veins, 
rendered the worlcing more expensive than was conceived at 
the time of taking the lease, insomucli as greatly to exceed 
the value at which the coals could be sold, by which they sus- 
tained a loss of 40s. per day, on which account they stopped 
working the colliery; and conceiving that, under the covenant 
in the lease, they were discharged from payment of the rent, 
ceased to pay the same. The defendant, in Trinity term, 1782, 
brought an action, and assigned seven breaches besides that 
for not working the mine, which were all given up at the 
trial, but upon that for networking, although the plaintiffs 
proved the unavoidable accidents above stated, the jury gave 
a verdict for the defendant, and assessed the damages at £427 
10s. which were paid; he afterwards, in Hilary term, 1784, 
brought another action, and recovered a verdict on the same 
breach, with £534 7s. Qd. damages, and in Trinity term, 1785^ 
brought two other actions, and threatened to bring similar ac- 
tions every year. 

The plaintiffs therefore filed the present bill, charging that 
under the circumstances they were not compellable to work the 
mine, and that even if they had worked it, the mine would, 
before the filing of the bill, have been exhausted, except 
■working the pillars; therelbre, that it is contrary to justice 
that the defendant should avail himself of the accidents which 
had happened, but that upon the defendant's being paid for so 
many coals as could be got, he ought not to require any fur- 
ther payment under the lease. The bill therefore prayed an 
account of the quantity of coals capable of being raised, al- 
lowing necessary pillars to support the works, and for a fire 
engine; and in case it should appear that the defendant had 
received a sum equal to the rent, payable by virtue of the 
lease for the same, that he should be restrained by injunction 
fi-om bringing or prosecuting actions for the rent, or if it 
should appear that he had not been fully paid, then, upon pay- 
ment of so much as he should be unpaid, he should be re- 
stiained in like manner. 



320 Lease. 

Mr. Mansfikld and Mr. Mitfokd, for the plaintiff. — Tho 
prayer of tlie bill is, that upon payment for all the cowls that 
could be got, the defendant shall be restrained from bringing 
actions. Tiie spirit of the contract entered into betwesTi the 
parties was that Morris should be paid at the rate of 9«. ^d. 
perwey for all the merchantable coals there could, by due dil- 
igence, be raised out of his ground. If he is paid for all, he 
has the whole benefit of the contract. Tlie coal was not to be 
paid for till raised; therefore there are stipulations in the con- 
tract to compel, 1st, the trying for coal; 2dly, the working 
it as long as there should remain any coal in the mine. Those 
Stipulations are in the nature of penalties, and may be re- 
lieved against if the defendant has a compensation for them. 
If he is paid for the coals the spirit of the contract is per- 
formed. In such cases the court has relieved, as for instance, 
by payment of interest for a sum delayed to be paid : Aylet 
V. Dodd, 2 Atk. 238. A-s the verdict is entered we are pre- 
vented from arguing that no more coal can be got, but it will 
be so expensive to get it that it is better for us to pay the val- 
ue, without getting the coal; to compel us, in that case, to 
work the mine or pay the rent during the term, would be to 
take advantage of the misfortune. If tlie mine had been 
worked out the rent was to cease. 

The intention of the parties never could be that the defend- 
ant was to get. more by_the mine being a. bad one, than by its 
being a good one. 

Mr. Scott and Mr. Eichaeds, for the defendant,— Tlie con- 
tract was that Morris should have so much money as the 
quantity of coal should produce, at so much per wey. This 
appears from the covenant that if the lessee did not work the 
mine for any year, but paid rent for it, and in a subse- 
quent year worked it to a greater amount than 900 weys, he 
might retain the rent for coal which he had not got in the 
former year. But suppose he had not worked it for two 
years, but paid the rent, and then in one year had worked the 
mine out, and it had not produced 1,800 weys, could he have 
called on the lessor to refund what be Iiad paid above the 
price of the coals obtained? Yet that would be the conse- 
quence if the spirit of the contract was as contended for on, 



Smith v. Morris. 321 

the other side. Bnt contracts for mines differ from pther 
contracts; a great deal of speculation enters into the consti- 
tution, of them; they are frequently for the purpose of work- 
ing other mines and leaving those contracted for dormant, at 
a (Jead rent. The lessee here appears, by the covenant, to be 
treating with respect to his concerns in other mines. The 
■parties have decided the only means to ascertain the quantity 
to be by working the mine; a court of equity has nothing to 
do with it, and can not substitute a less accurate method of 
ascertaining the quantity; it would not be doing justice be- 
tween man and man. If it was otherwise the situation, of a 
lessor would be a situation of great hazard, that of the lessee 
not so, as he would have the chance of all his speculations. 

The first covenant in the reddendum is to sink the pit, and 
if he does not, to pay a dead rent at the rate of 900 weys. 
But the covenant that in case, with due diligence, there 
should not be found coal sufficient to work 900 weys, or the 
coal should all have been worked, the rent was to cease, is deci- 
sive. Was it to cease without due diligence being used, and 
to be relieved by a new speculation in a court of equity? 
Another covenant is, that he shall deliver good coal for Mor- 
ris' use for firing. If Mr. Morris is only to be paid for the 
coal, how is the firing to be supplied? It will be contended 
that a compensation can be made for it; bnt it shows the in- 
tent of the parties, that the value of the coal was' not intended 
to be the only benefit to bp derived by the defendant from the 
lease, and that the coal was really to be gotten, which it 
would have been but for negligence on the part of the plaint- 
iff's. In fact, Morris offered, before this fault happened, to ac- 
cept the surrender of the lease, to which the plaintiff would 
not then agree, so that he has very little equity now to compel 
the acceptance of it. 

Master of the Rolls, Kenton. 

I can not bi-ing my mind to balance upon this subject. A 
court of equitj' must forget its name, if it did not interfere in 
a case so circumstanced. The contract was, as Mr. Mitford 
stated it, a contract for all the coals contained in the land at 
9s. 6(?. per wey. Mr. Scott said that if a court of equity in- 

VOL. VIII. — 5l 



322 Lease.. 

terfered it would not be doing justice between man and innn. 
If it would not be so, I must much mistake tlie nature of the 
object. If any possible disadvantage could arise to Mr. 
Morris I would not interfere. It is true, if parties enter into 
]e;j:a]. contracts they are bound to fulfill them. But if parties 
enter into contracts which are enforced for purposes of Iiaj'aas- 
raentand vexation, courts of equity properly interfere. Smith 
calls upon the court to interfere, because if he carrie.s the 
contract into execution he must pursue the object at a greater 
expense than he can gain by it, the property being either not 
attainable or attainable only at an intolerable expense. Ad- 
mitting it to be attainable in this way, the offer to pay Mor- 
ris all he could ever obtain without incurring the expense, is 
offering him everything he can fairly require. What disad- 
vantage will it be to him? He will be paid for the coals, 
although they will be left upon the estate. It is clear Mr. 
Smith can not be compelled to go on with a disadvantageous 
business, from which Morris is to derive no advantage. 

It must be referred to the master to inquire what quantity 
of coals remain to be got upon the estate on the terms in the 
Jease,' and the plaintiff undertaking to pay for the same as 
aforesaid and to surrender the lease, the defendant must be 
restrained from proceeding in his actions. 

'The decree, however, proopeded thus; "And that is the value of the 
same at the rate of 9s. &d. awey; and the plaintiffs undertaking to pay what 
slia.ll be such value, anl likewise to surrondsr up the lease in case the de- 
fendant will accept the same — 

' 'It is ordered and decreed that they do pay^annually, the sum of £427^ 10s., 
agreed to be paid by the said lease, as the same shall become due, into the 
bank with, etc., without prejudice, subject to the further order of this court. 
And in case the defendant shall accept a surrender of the lease, it is further 
ordered that the master do inquire and state what will be a full satisfaction 
to the defendant of the covenants in the said lease." 

'Reserving costs and further directions. 



Clifton v. Walmesley. 323 

Clifton v. Walmesley et al. 

(5 Term R. 564. King's Bench, 1794.) 

Eoyalty on coal sold at pif s moutli— Plain covenant not left to parol 
testimony. A lessee of coal mines to pay a rent certain and a certain 
share of such sums of money as all or any of the coal should sell for at 
the pit's mouth, is not liable under such covenant to pay to the lessor 
any part of the money produced by sale of the coal elsewhere 'than at 
the pit's mouth; and evidence of the lessees having accounted with the 
lessor and paid him the share of money produced by the sale of coal else- 
where, is not admissible to explain the intention of the parties. 

This was an action of covenant, wherein the declaration 
stated an indenture, dated 30th September, 1871, whereby 
Thomas Clifton, under whom the plaintiff claimed, demised to 
the defendants certain quarries of cannel for 21 years at the 
yearly rent of £150, and the farther sum of Is. and Qd. for 
every score baskets of cannel, computing 24 baskets to the 
score, over and above 41, and for a certain proportion of can- 
nel therein described, to be annually paid in kind, "and also 
one half part or share of all such sum and sums of money as 
all or any of the cannel to be gotten by virtue of the said in- 
denture should sell for at the pit mouth over and above id. 
the basket, or top and, bottom," and for certain other consid- 
erations therein mentioned. There were other covenants for 
the payment of the rent and the management of the demised 
premises, and also that the lessees would from time to time 
deliver to the lessor, etc., "a true and particular account of 
all the cannel which should be raised or gotten by virtue of 
the liberties and privileges thereby granted, and of the price 
and prices at which the same and every part thereof should be 
sold at the pit or pits out of which the same should be gotten 
md raised." And further, that it might be lawful for the 
lessor, etc., " to inspect books of account which should from 
time to time be kept by the auditor, etc., to the said cannel 
works, to see and take an account thereout of the quantities 
of cannel from time to time got at the said cannel works, or 
any of them, and of the price and prices at which the same and 
every part thereof should be sold at the pit." Several breaches 



324 Lease. 

of covenant were assigned; amongst others the following one: 
That before tiie 25th March, 1793 (to wit), on the 1st Jan- 
uary, 1792, and on divers other days and times between that 
day and the 25th day of March, 1793, divers baskets of the can- 
nel, got by virtue of the said indenture, were and had been 
sold for at the pit mouth more than 4cZ. the basket, or top and 
bottom (to wit), 8d. for the basket over and above id. tlie bas- 
ket, or top and bottom; whereby the defendants wore liable to 
pay to the plaintiff one half of the said sums of money over 
and above id. the basket, or top and bottom, amounting in the 
whole to £1,333 6«. 8^:^., which they have not yet paid. The 
defendants pleaded they did not break the covenants on which 
issue was joined. Upon the trial of the cause it was admitted 
that Messrs. Blundells (assignees of the defendants) liad, with- 
in the period mentioned in the third breach, sold several quan- 
tities of top and bottom cannel at the pit mouth for more than 
id. the basket, one moiety of the surplus whereof has been paid 
"into court. Messrs. Blundells, within the period mentioned 
in the third breach, also raised divers qiiantities of cannelat the 
pit's mouth upon the premises; which cannel they led away 
from the premises and sold elsewhere, at different prices, be- 
yond id. per basket, when the selling prices of the pit's mouth 
at the same time were above id. the basket; for the half of 
which surplus prices, called the half price, the action us to the 
third breach is brought. The plaintiff offered evidence to 
show that from the date of the lease till March, 1791, at which 
time the plaintiff had notice of an assignment of the lease to 
Messrs. Blundells, whom he refused to accept as tenants, the 
defendants, when the coal produced id. per basket at the pit's 
mouth, and they led away the coal and sold it elsewhere, paid 
to the plaintiff a moiety of the selling price of the coals above 
id. per basket at the pit's mouth; which evidence was rejected 
by the learned judge. A verdict was agreed to be found for 
the plaintiff for the nominal sum of £200 as damages, and 
40«. costs, subject to be reduced or increased by the award of 
James "Wareing, if this court should be of opinion that upon 
the points reserved the plaintiff is entitled to a verdict; if not, 
and the court should be of opinion that the evidence above 
mentioned was rightly rejected, a judgment of nonsuit to bo 
entered; and the points submitted to the court were: Ist, 



Clifton v. Walmesley. 325 

whether upon the true construction of the above lease, unex- 
plained by extrinsic evidence, the half of such sums of money 
as the cannel got by virtue of tlie indenture, and sold else- 
where than at the pit's mouth, would have produced, if sold 
at the pit's mouth, is due to the plaintiff, when the selling 
price af the top and bottom coal at the pit's mouth at the same 
time was above 4:d. per basket, and if the court should be of 
opinion with the defendants upon this point, then iJdly, 
whether the evidence above mentioned to have been rejected 
ought to have been received. 

Wood, for .the plaintiff, contended as though tbe breach 
assigned did not fall within the literal wording of the cov- 
enant, yet it was siibstantially warranted by it. At the time 
when the covenant was drawn, all the coal was sold at the 
pit's mouth, since which time, by means of a canal, an op- 
portunity is afforded of carrying it to a more distant market; 
but tlie coutraet between the parties must still be understood 
to, stand upon the same equitable footing it was before; for 
effecting which the court will not tie them down to the mere 
words, but look to the meaning of the contracting parties. 
There can be no doubt but that the intent of the covenant was 
that the lessor should . share the half of whatever price the 
coal produced at the market; and whether it was further from 
the pit, or nearer to it, could not possibly vary the case. For 
this purpose it is perfectly safe to consider the sale as made 
at the pit's mouth, as far as regards the regulation of the 
price. And if the evidence offered had been received, it 
would have been decisive to show that the defendants them- 
selves so understood the contract. In Cooke v. Booth, Cowp. 
819, where the question was whether a covenant by the lessor 
to renew under the same rents and covenants should be con- 
sidered as a covenant for a perpetual renewal, evidence of acts 
of the ancestors of the lessor, who had frequently renewed, 
was admitted to show the intention of the contracting parties, 

Lambe, contra, was stopped by the court. 

Lord Kenton, 0. J. 

The conduct of the defendants may possibly be a fraud up- 
on the covenant, and perhaps a court of equity would give 



326 Lease. 

the plaintiif some relief; but how can this court get rid of the 
covenant in the shape in which the question is brought before 
us? Suppose the breach liad been assigned that this coal 
had been sold for so much at Liverpool, it could not have 
been supported upon a demurrer. Then the covenant not 
being ambiguous in the term of it, can not be explained 
by parol evidence. This case is distinguishable from that of 
Cooke V. Booth which was determined on the same princi- 
ple as that of Furnival v. Creio,3'Atk. 83, and others. Here 
tlie covenant is drawn in clear and explicit terms. 

Geose, J, 

The court can not declare that the coal was sold at the pit's 
mouth,wliich is expressly stated to be sold elsewhere. Whatev- 
erthe meaningof the parties might have been, we can only look 
for it in the covenant; and in that they have expressed them- 
selves precisely and unambiguously; and therefore we can not 
receive extraneous evidence in explanation of it. 

Postea to the defendant. 



The Copper MiNiiiTG Compan-y v. Beach. 

(13 Beavan, 478. Before the Vice Chancellor, 1823.) 

' Covenant construed to imply perpetnal renewal. A granted a lease 
and covenanted that he would always, at any time when requested by 
the leasees, etc., demise the premises for the further term of thirty-one 
years, in which new lease were to be contained ike same covenants, 
articles, clauses, provisos and agreements: Held, that this amounted 
to a covenant for a perpetual renewal. 

Form of recital in renewal lease. A testator covenanted for a perpetual 
renewal of a lease: Held, that the proper form of lease to be granted 
in renewal, was a demise for the new term, recltiilg the original cove- 
nant. 

In 1757alease was granted of some mining property, for thir- 
ty-One years,with a covenant for renewal in the form after stated, 
and renewed leases were, in 1774 and 1788 granted, contain- 
ing similar covenants for renewal. The last-mentioned lease 

' Page v. Esty, 54 Me. 319; compare Hyde v. Skinner, 2 P. Wras. 196. 



The Coppek Mining Co. v. Beach. 327 

was made between Mr. Talbot, of the one part, and the Cop- 
per Mining Company of the otiier part, and thereby the 
property was leased for thirty-one years. This lease contained 
the following covenant for renewal: "That he, the said 
Thomas M. Talbot, liis heirs and assigns, in considerntion of 
the sum of £400, paid by the said Governor and Company, 
would, at the costs of thtf said Governor and Company, al- 
ways, at any time, when and as often as the said Governor and 
Company, their successors or assigns, should and would re- 
quest the same, by indenture under his or their hands and 
seal, lease, demise, set, and to farm, let, unto the said Gov- 
ernor and Company, and their successors or assigns respect- 
ively, all and singular the premises thereinbefore demised, to- 
gether with all the liberties, privileges, powers and authori- 
ties, in as full, large and ample manner as the same were 
tliereinbefore granted, to commence at the feast of the An- 
nunciation of our Blessed Virgin Mary, or St. Michael, the 
Archangel, whichever should ^happen to be next preceding 
the execution of such new lease, for the further term of thir- 
ty-one years, from thence next ensuing, and fully to be com- 
plete and ended, in which said new lease or leases were to be 
contained and inserted the same rents, payments, reservations^ 
covenants, articles, clauses, provisos and agreements, as were 
thereinbefore mentioned and contained." 

Mr. Talbot, by his will, dated in 1810, devised his real 
estates, and amongst them the mines in question, unto the 
defendants, M. H. Beach and W. H. Beach and John Hunt, 
since deceased, aTid. their heirs, upon certain trusts. 

In 1819, after the death of Mr. Talbot, the draft of a 
renewed lease from the trustees of his will to the copper 
mining company was prepared, and in this draft Mr. Poison, 
the conveyancing counsel of the company, had introduced a 
covenant by the trustees, for renewal, in the same form as the 
former covenant. 

Mr. Hodgson, on behalf of the trustees, struck out this 
covenant, adding a proviso that, the acceptance of tlie lease 
without such covenant should not prejudice the lessees in 
respect to any future renewal. ' 

Mr. Poison insisted on having the covenant for renewal 
inserted. He offered, however, to add a proviso for cesser of 



328 Lease. 

the covenant, upon the trustees conveying tlie legal fee to the 
person entitled to call for it, and upon that person giving to 
the company a similar covenant. 

Tills being objected to, a bill for specific performance was 
filed on the 21st of June, 182J, praying that a renewed lease 
might be granted, subject to the same rents, payments and 
reservations, and containing the same grants, coventuits, arti- 
cles, clauses, provisos and agreements as were reserved, made 
payable, contained and inserted in the lease of 1788, and par- 
ticularly a covenant for renewal, upon the same terms and 
conditions as the covenant for renewal therein contained. 

The defendants, the trustees, by their answer, said, " that 
being interested as trustees only, they were advised that they 
could not take upon themselves to dotermiuo whether the 
plaintiffs were or not entitled to have a renewed lease granted 
to them, containing such a covenant for further renewal as 
was required by the plaintiffs, and they declined to execute 
such a lease, except under the direction and indemnity of the 
court." 

On tlie 10th of February, 1823, the cause was heard by Sir 
J. Leach, Vice Chancellor. 

Mr. IIaet, Mr. Spknce and Mr. Polson, for the plaintiffs, 
argued, that they were entitled to have a covenant for renew- 
al similar to that in the first lease, without which they said it 
would not be a lease containing the same covenants, etc., as 
the former leases. That otherwise the plaintiffs might be 
deprived of their right to a perpetual renewal, for the lessors 
might sell, and the purchaser might take with notice only of 
the lessees' limited interest, as represented on the counterpart 
lease, in which case he would not be bound to renew. That 
at all events, if a new covenant were not given, the lessees' 
remedy, being only upon the original lease and covenant, 
would be a very inconvenient description, and migiit be, 
or at least in time might become liable to be objected toon 
the ground of perpetuity, or as a stale demand, and that 
by all the authorities it appeared that the way in which a 
perpetual right of renewal was kept up was, by the renewal, 
foties quoties, of the original covenant. 

Mr Wetheekll, Mr. Wilbraiiam and Mr. Hodgson, on th6 
other hand, insisted that the trustees, having no beneficial 



The Copper Mining Co. v. Beach. 329 

interest, were not bound to enter into personal covenants: 
Page v. Broom, 3 Beav. 36; Worley v. Fram/pton, 5 Hare, 
560; Broohe v. Hewitt, 3 Yesey, 255; WilUngham v. Joyce, 
3 Yesej, 168; Beauclerh v. Ashhurnham, 8 Beav. 322; Fow- 
ell V. Lloyd, 2 Y. & Jer. 372. That the only foundation for 
the plaintiffs' remedy must be the original covenant contained 
in the first lease, which ran with the land and would affect 
all subsequent owners, and that if the renewed lease contained 
a recital of that covenant it would bind all purchasers who 
would thereby have notice of the lessees' interest. That each 
successive renewal must be considered as a tentative act only 
toward performance of the covenant, which being perpetual 
in its terms cuuld not be held to be satisfied by any limited 
number of compliances with it, and that it was quite settled 
that the doctrine of perpetuity did not apply to such a case. 

The vice-chancellor expressed his opinion to be, that no 
such covenant as that claimed by the plaintiffs could be re- 
quired from the trustees, and that the form proposed of recit- 
ing the covenant for renewal, and declaring the new lease to be 
granted in pursuance of it, was the proper one; and he declared. 
Keg Lib., 1822, A. Fol. 965, " that according to the covenant 
contained in the lease of 1788, the plaintiffs were entitled to a 
perpetualrenewalof the lease of the lands," etc., etc.: Bridges 
V. Ilitohoock, 5 Bro. P. C. 6; GooTce v. Booth, Cowp. 819; 
Furnival v. Crew, 3Atk. 83; Moorex. Foley, & Yesey, 232; 
Iggulden v. May, 9 Yes. 325, and 7 East, 237; Dowling v. 
Mill, 1 Mad. 541; Harnett Y.\Teilding, 2 Sch. & Lef. 556; 
Brown v. Tighe, 2 01. & Fin. 396; Sheppard v. Doolan, 3 
Dr. & War. 1 ; Price v. Assheton, 1 You. & Coll. (Exch.) 82; 
Smyth V. Nangle, 7 CI. & Fin. 405; and 3 Ilurg. Juris. 
Consult. Exerc. 178; and he referred it to the master to ap- 
prove of a proper lease according to such declaration." 

A dispute arose respecting the terms of the decree, and 
whether the court intended to declare that the plaintiffs were 
entitled to a perpetual renewal; and on the 18th of March, 
1823, the case was mentioned on the minutes, when the vice- 
chancellor said that he intended at the hearing to declare 
that the plaintiffs were entitled to a perpetual renewal. 

The matter went into Master Oourtenay's ofiBce, and on the 
3rd of June, 1823, the plaintiffs' counsel consented to take the 



330 Lease. 

lease without the covenant for renewal, and the lease was set- 
tled accordingly. It recited the previous lease and the origi- 
nal covenant for renewal at length, and the decree of the court 
which declared that the plaintiifs were entitled to a perpetual 
renewal; and it contained covenants, on behalf of the lessors, 
for quiet enjoyment, as against themselves and any persons 
claiming under them. 

The master made his report, dated the 13th of June, 1823, 
approving of the lease so altered, which was afterward con- 
firmed, Eeg. Lib. 1822, A. Fol. 2261, and the lease was exe- 
cuted. 



Faenum v. Platt. 
(8 Pictering, 339. Supreme Court of Massachusetts, 1829.) 

Reservation durinar ontstaiuling lease. The owner of land having leased 
a marble quarry thereon for ten years, afterward conveyed the land to a 
third party, ' ' reserving the use of the quariy until the expiration of the 
lease." The lease was canceled within the fen years by the parties to it: 
Held, that the reservation was not thereby extinguished, but that it 
would remain in force till the end of the ten years. 

Passlngr around obstructed way. Where one has a right of way over 
another's land, and the way is not defined, if the owner of the land 
stops up the way which is in use, the other party will be justified in go- 
ing over another part of the land. 

Trespass quare clausum f regit for breating and entering 
several closes of the plaintiff, and carrying away marble from 
a quarry in one of the closes. Tiie general issue was pleaded ; 
also several pleas in bar, in which a right to enter upon tl\e 
closes and do the several acts complained of, is averred and 
claimed under title derived from a sale on execution against 
one Eli Garlick. 

At the trial, before Paekee, C. J., the following evidence 
was produced: On June 24, 1820, G-arlick, who was then 
owner of the closes described in the writ, executed an agree- 
ment with William Middlebrook, David Dell, and Stephen 
Mead and sons, by which they were to have the use of the 



Farntjm v. Platt. 331 

qnarry for ten years, with tlie right of way through the closes 
for the purpose of going to the qnarry and carrying away the 
marble; and the parties entered into and occupied the closes 
pursuant to the agreement. This agreement was not record- 
ed. On September 14, 1822, Garlick, for a valuable consid- 
' eration, conveyed the same closes to Farnum, the plaintifl", by 
a deed which contains the following clause: " reserving also 
the use of the quarry on said Bnrhanj's lot until the expira- 
tion of the lease I have heretofore made to Stephen Mead and 
others" (meaning the agreement before referred to). This 
agreement or lease was canceled on October 5, 1822, by con- 
sent of the parties to it, and the names and seals torn otf. 

Garlick continued to use the quarry occasionally after the 
canceling of the lease, under the reservation in 'the deed, and 
on November 26, 1826, his supposed right in the same was 
taken on execution and sold in due form to the defendant; 
and the acts complained of were the passing through the 
closes to the- quarry mentioned in- the reservation, for the 
purpose of taking marble therefrom, and repassing through 
the same with loads of the marble to a mill where it was to 
be wrought. 

It was insisted by the plaintiff's counsel, that even if the 
defendant had any right to enter on and pass over the- land 
and take stone from the quarry, yet that he pursued a course 
different from the route which had been usual. But there 
was evidence that the plaintiff had fenced out the old road, 
and that the route taken was that which would do the least 
injury to the plaintiff's land. 

A verdict was taken for the plaintiff, which was to be set 
aside and the plaintiff nonsuited, if a right or interest re- 
mained in Garlick at the time of the sale on execution, which 
passed to the defendant; otherwise judgment was to be ren- 
dered on the verdict. 

HuBBAED & HuBBELL, for the plaintiff. 

0. A. Dewey & Beiggs, for the defendant. 

Paekee, C. J., delivered the opinion of the court. 

The principal question in this case is upon the construction 
of a clause in the deed of Garlick to the plaintiff, which is in 



332 Lease. 

terms a reservation of the right to use a stone quarry upon 
one of the lots described in the deed. 

Before the execution of this deed, Garlick, then owner of 
the land, had leased the quarry, with the right of ingress and 
egress, to Middlebrook and others, for ten years, then unex- 
pired. The object of the reservation was to secure the rights 
of the lessees during the continuance of the lease; and the 
presumption of law is, that whatever diminution of value 
this occasioned to the title conveyed to the plaintiff was ac- 
counted for in the consideration paid. 

This lease, or agreement, which had the effect of a lease, 
was, by consent of all the parties to it, canceled after the exe- 
cution and delivery of the deed to Farnum, and he contends 
that, on such cancellation, he held the land, under the deed, 
free from the right secured by the reservation. We do not 
think this is the true construction of the reservation, but that 
its effect was to exclude from the operation of the grant the 
use of the quarry by Farnum during the time provided in the 
agreement for its continuance. This is the most natural con- 
struction, and such as was intended by the parties at the time. 
The words " nntil the expiration of the lease" mean until it 
shall expire according to the terms of it, and not the termina- 
tion of it by a new agreement between the parties to it. And 
the reservation enures to the use of the lessor as well as the 
lessee, for it saves the quarry from the operation of the deed, 
for the time, as much as it would if the reservation had been 
for the unexpired time, without any mention of the lease. 
Therefore Garlick, or those lawfully holding under him, 
would not be liable in trespass for taking stones from the 
quarry. 

And as the way used for access to the quarry was not lim- 
ited or defined, the shutting up the way commonly used gave 
the right to pass to and from in any course least prejudicial 
to the owner of the land. This, according to the verdict of 
the jury, was done by the defendant in this case. 

Plaintiff nonsuit. 



Jones v. Shears. "Watson v. O'Hern. 3S3 
Jones v. Shears et al. 

(7 Carr. & P. 346; 32 Eng. C. L. R. 649. At Nisi Prius, 1886.) 

' Fairly workable. A tenant agreed to work a coal mine so long as it was 
" fairly woikable." There were coals in the mine, but of such a de- 
scription that it would not pay to work it: Held, that under these cir- 
cumstances the tenant was not bound to work the mine, and that under 
the words "fairly workable'' a tenant was not bound to work at a dead 
loss. 

Assumpsit, on an agreement to take a colliery at a certain 
sleeping rent, and to continue to work it so long as it was 
" fairly workable." Breach — that the defendants had ceased 
to work it while fairly workable. 

Plea — that the defendants had worked the colliery as long 
as it was fairly workable (concluding to the country). 

It appeared that there was still coal in the mine, but that 
it was of such a description that it would not. pay to work it. 

Wilson and John Evans, for the plaintiff. 

E. Y. Williams, for the defendants. 

CoLBKiDGE, J. (in summing up). 

The defendants were not obliged, under this agreement, to 
go on working so long, as there was any coal to be found; for 
I am of opinion that, under the words '"fairly workable," 
they were not obliged to work at a dead loss. 

Verdict for defendants. 



Watson v. O'Hern. 



(6 Watts, 362. Supreme Court of Pennsylvania, 1837.) 

2 Intent, not form, delernniies Instrument a lease. Whatever -words 
are sufficient to. explain the intent of the parties that the one should di- 
vest himself of the property, and the other come into it for a determi- 
nate time — whether they run in the form of a license, covenant or agree- 
ment — will, in construction of law, amount to a lease as effectually as 
if the most proper and technical words were made use of for that pur- 
pose. 

' Newton v. Nock, 7 M. R. 611. 
, 2 Moore v. Miller, 8 Pa. St. 272; Gartside v. Outhy, 58 111. 210; Post 

MORTGAaB. 



334 Lease. 

' Impliofl corenant to work— Kepeatod actions for repeated breaches. 

A lease of a stone quarry, in consideration that the lessee shall pay to 
the lessor a certain price per perch for all stone tnken out of it, is a con- 
tract on the part of the lessee that he will work the quarry; and upon 
his failure so to do, the lessor may maintain covenant on the contract, 
and recover damages. And one verdict and judgment on such contract 
ponding the lease, is not a bar to another when the term is further ad- 
vanced. 

Error to the District Court of A\\e(;henj County. John 
O'llern against Eobert "Watson and William Booth. Thig 
was an action of covenant upon the following agreement: 

" Articles of agreement made and 'concluded by and be- 
tween John O'liern, of the borough of Allegheny, of tlie one 
part, and Eobert Watson and William Booth, stone-cutters, of 
said borough, of the other part; witnesseth, that the said 
O'Hern doth, on the conditions hereinafter mentioned, let on 
a lease of six years, commencing on this 5th day of February, 
1834, unto the said Robert Watson and William Bootli, 
jointly, the privilege of quarrying and hauling away all the 
stone they may be able to find use for during the said term of 
six years, and liberty to quarry the same all over the present 
face of said quarry and also to extend the said face as far 
eastward as they please along the side of Mr. Eobert Camp- 
bell's premises, with the exception only of the ])rivilege 
granted to Joseph Walker and partner by an article of agree- 
ment dated on the 1st of this month, which calls for tlie 
space of eighteen yards along the face of said quarry and 
near the middle thereof, together with the other conditions 
contained in said article; the remainder of the face of said 
quarry to be considered for the use and under the control of 
the above-mentioned Eobert Watson and William Booth for 
and during the said term of six years, provided they fultill the 
following conditions, viz.: they agree to pay unto the said 
O'Hern, his heirs, etc., a quarry rent of seven cents for every 
perch of twenty and three fourth cubic feetof.common buildino- 
stone they take out, and four cents a foot for every foot of cut- 
ting stone they may get during said time, tlie cutting stone 
to be running measure for all stone not broader than eighteen 
inches, and all the stone which shall exceed eighteen inches 
wide to be cubic measure. They also agree to deposit their 

' Brainerd v. Arnold, 8 M. R. 478j Koch's App., 4. M. R. 151, 



Watson v. D'Heeit. 335 

sti'ippings regularly, deep on the south side of or front of the 
quarry, and always keep a sufficient distance clear between the 
face of the rock and the stripping for a loaded wagon to pass 
along. They also engage to fulfill any or all of the contracts 
the said O'Hern may agree for, in such materials and work- 
manship as the conditions of such contracts call for, pi'ovided, 
always, that such contracts are not undertaken at a lower price 
tlian the established undertakers in this vicinity undertake 
such work for; say, for instance, Mr. Pegan or Mr. Smiley, 
etc.; the said llobert and William do also agree to render 
unto the said O'Hern, if required by him, orders on the pro- 
prietors of the buildings for the amount which may be com- 
ing to him for his claim for the (Quantity of stone in each con- 
tract, as may be conveniently ascertained, and in the space of 
fifteen days after the stone work is finished. It is also signi- 
fied and conceded to, that provided the said Robert "Watson 
and William Booth faithfully fulfill the conditions of this 
article, they shall have a new lease of the said quarry on as 
reasonable terms, and in preference of any other new appli- 
cants for the said property. Tbe said O'Hern also enjoins on 
the parties that no liberties be taken nor injury done to 
either the pasture or fences of the field in which said quarry 
is, than strictly what is necessary for taking off the stripping 
on the same. It is further agreed that the said Watson and 
Booth shall be present to give their consent at the closing of 
any contracts that the said O'Hern shall make. It is farther 
agreed, if Joseph Walker & Co. should at any time give up 
tlieir bargain in said quarry, tliat there on condition that the 
said Watson and Booth shall keep four teams constantly at 
work during nine months every year, that then they shall have 
the privilege of that part which said Walker's contract calls 
for, together with their own." ' 

The plaintiff thus assigned the breach of the covenant by 
the defendants. 

By virtue of which articles of lease and agreement before re- 
cited and set forth, afterward, to wit, on the day and year afore- 
said the said defendants wentinto the possession of and assumed 
the control of the said quarry. And the said plaintiff avers 
that although he hath always, from the time of making the 
said articles of agreement, hitherto, well and truly performed 



336 . Lease. 

and fulfilled and kept all thinjo^s therein mentioned and con- 
tained on his part and behalf to be performed, fulfilled and 
kept, according to the tenor and effect, true intent and mean- 
ing thereof, nevertheless, the said defendants, the covenants 
and agreements aforesaid, in the said articles of agreement 
contained as hereinbefore set forth, or any of them, on their 
part to be fulfilled, performed and kept, have not performed, 
fulfilled or kept, according to the tenor and efi'ect, true intent 
and meaning thereof; the said plaintift'saith that they did not 
quarry and haul away all the stone they were able to find use 
for, during that part of said term of six years, from the 5i:ii 
day of February, 1834r, which was expired at the time of the 
impetration of this writ, but altogether neglected to qnari-y 
and haul away and use any stone from same, from the 15th 
day of May, 1834, and previous to the institution of this suit, 
and neglected to pay any compensation to the said plaintiff, 
for the stone, which they might have quarried, hauled away 
and found use for, during said period. And the said plaintiff 
avers that the said defendants were able to have fonnd use for 
and might have hauled away from said stone quarry a large 

quantity of stone, to wit: perches, during said period, 

which they altogether neglected to do, and which thej' ought 
to have done, according to the tenor, effect, true intent and 
meaning of their covenants aforesaid; and for a further breach 
of said covenants, the said plaintiff further saith that he, on 
tlie — day of May in the year 18,34, after the execution of said 
articles of agreement, and before the institution of this suit, 

agreed and contracted with M'Kelvey, for the delivery 

of as much stone as was necessary for tlie walling of a certain 
cellar, and which contract the said defendants, by their cove- 
nants with the said plaintiff, were bound to fulfill, and of 
which they, the said defendants, then and there had notice, 
and which they altogether refused and neglected to do, and to 

deliver said stone to the said M'Kelvey, as contracted 

for by said plaintiff, by reason of which the said plaintiff 
saith he is injured and damaged to the value of 500 dollars. 
It appeared in evidence that the plaintiff had recovered 
damages from the defendants, in a former action, on the same 
agreement. 

The court below thus charged the jury: Grier president. 



Watson v. O'Heen. 337 

It is a rule of law well establislied, that covenants or con- 
tracts are to be construed according to their spirit and intent 
and that the spirit and intent are to be gathered from the 
wliole context, and a performance which is strictly accordinc; 
to the letter of the covenant, if it violate the spirit's intent, is 
as much a breach as if it violated the letter also ; and as agree- 
ments are often drawn by persons unacqnainted with the 
technical or proper use of legal terms, no precise or formal 
terms are necessary to constitute a covenant. Thence tlie in- 
quiry always is, what was tlie intention of the parties? Ou 
this subject many examples mio;ht be cited, but one or two 
will suffice. If I covenant to deliver so many yards of cloth, 
and I cut it in pieces and then deliver it, it is a breach. So, 
if one covenant to leave the trees on the Pand, and he cuts 
them down and leaves them there. So, in the case of Griffith 
y.Goodland, when a brewer covenanted to deliver the grains 
from his brewery to plaintiff for seven years, but put liops 
in the malt, whereby the grains were spoiled. In an action 
,of covenant, it was objected that it would not lie, because de- 
fendant had fulfilled it to the letter by delivering the grains, 
and that the only remedy for the plaintiff was an action on the 
case for fraud; but the court lield, that it was the intent that 
the plaintiff should have the grains for the useof his cattle; of 
course, that he was to have (them) in such a state that liis cattle 
would eat them; that when hops were mixed with grains, cat- 
tle would not eat them. Therefore, tliongh the grains were 
in fact delivered, so as to comply with the letter of the cove- 
nant, they were not delivered in such a state as to comply 
with the spirit of it, and' it was consequently broken and the 
action maintained. 

With these principles in view, let us examine this article 
of agreement, and endeavor, if possible, to arrive at the true 
meaning, spirit and intent of it, and having found this, it will 
be your duty to say whether the defendants have broken their 
contract, and what damages they should pay for such breach. 
The plainfiff is owner of a stone quarry, near Alleglieny 
town; the defendants are stone cutters. The plaintiff " lets to 
them on lease of six years, the privilege of quarrying and 
hauling away all the stone they may be able to find use for 
during the said term of six years, and liberty to quarry the 
VOL. VIII — 22 



338 Lease. 

same all over the present face of theqnarry, excepting a space 
of eighteen yards leased to Walker," which is " to be consid- 
ered for the use, and under the control of," defendants, "dar- 
ing the term of six years," provided, however, that they ful- 
fill the following conditions, viz.: "They agree to pay unto 
the said O'llern, his heirs, etc., a quarry rent of seven cents a 
perch," etc., etc. They agree, also, to fulfill any contracts 
O'Hern may agree for, in such materials and workmanship as 
tlie conditions of sucl»* contract may call for, provided the 
terms are good and they agree to them. They agree, also, to 
give plaintiff orders on proprietors of buildings for amounts 
due him for rent. They also agree further, if the reserved 
part of tlie quarry held by "Walker, be at any time given up 
to them, that they will keep four teams constantly employed 
during nine months in every year. 

ISTowit was contended by the defendants' counsel that this 
is the grant of a mere privilege, to be paid for when used at a 
certain rate, and that the defendants are not bound to use it; 
have not covenanted to take out any particular quantity of ■ 
stone, and that when they see fit to take them they will pay 
for them. 

Now, this construction may, in a measure, be according to 
the letter of this contract, but I think no person of common 
understanding would say it is according to the spirit and in- 
tent of it. 1 may lease a man my mill for a year, and al- 
though I may absurdly call it in my lease "privilege of 
using my mill for a year, and grinding all the grain that 
may come to it," and ma.j forget to insert in it a covenant 
tliat the lessee shall keep it going day and night, but only 
bind him to give me a share of the tolls, yet I think he could 
hardly be called an honest man, who, with such a contract 
would shut up my mill and put the key in his pocket, and 
when called on for rent, turn on his heel and say, "I cove- 
nanted to pay you a share of the tolls; I have taken none; go 
about your business; when I take any I will pay you your 
share." 

But is this a mere privilege? Although called a privilege 
of quarrying and hauling away all the stone the defendants 
may be able to find use for, yet it is a lease for six years; de- 
fendants are to have the use and control of the quarry for six 



Watson v. O'Hern. 339 

years; it is in fact nothing more nor less than a lease of the 
quarry, uninstructed as to the quantity of stone to be taken 
from it; the phrase " may be able to find use for," will in- 
clude as many as they can dispose of to advantage. The par- 
ties evidently contemplate that sto'ne will be supplied to con- 
tractors or builders of houses; and as the quarry was nigh to 
a large and growing city, they seem to take it for granted 
that both parties would be anxious to dispose of as many as 
possible, as it would be to their mutual advantage. Now, if 
the defendant had shown that he got out as many stone as he 
could dispose of; that he had but a single team and did as 
much ashe'conld; that he could not get hands to quarry, or ai^y 
other reasonable excuse for not doing as much as plaintiff 
might expect or demand, he might well say, " I have done all I 
was able, and I have not contracted to do more; I have not 
bound myself to keep any certain number of teams going.'' 
Or if tliey had said to plaintiff, " We find ourselves unable to go 
on with this business, here is your lease, do the best you can," 
tliey might jus.tly have called upon you to give nominal, or 
no damages at all, especially if plaintiff had refused to accept 
his lease again, knowing they could not go on with the busi- 
ness. But it seems that when, at the arbitration in the for- 
mer suit, tlie plaintiff complained they would not give up the 
lease, tlie defendants did not offer to give it up except upon 
conditions wiiich tliey evidently had no riglit to require. 

It has been objected that a second suit will not lie on this 
agreement; that as no time is fixed for payment of rent, 
plaintiff miglit bring an action every day, either for an ac- 
count, if not rendered, or for a breach, if the quarry is not 
used; tliat, because this would be so unreasonable, therefore 
the contract is satisfied by one recovery for a breach of it. But 
although it would be unreasonable and oppressive to have a 
great number of suits, it does not follow that therefore the 
plaintiff shall have but one; or that, because the parties have 
fixed no time for rendering an account or paying rent, therefore 
plaintiff should wait till the end of the term. The parties evi- 
dently understood that the quarry rent should be paid along 
as tlie money for the stones sold was got; that the plaintiff 
should have an order on the purchasers or proprietors of 
houses tor which they were furnished. "While the court will 



340 Lease. 

liincW tlie plaintiff, on proper application made, from op- 
pressively multiplying suits, or would consolidate them and 
make him pay the costs of all but one; so 1;hey will not per- 
mit the defendant to trifle with his contract, and escape do- 
ing what is just and equitable by quibbles upon the words of 
his contract. 

It is urged, also, that as the defendants had not covenanted 
to get out any particular quantity of stone, or to keep any set 
number of teams employed, therefore, as they had fixed no 
certain rule of damages, the jury can give none, or at least, 
but nominal damages. But this is not correct; as I have al- 
ready shown, the spirit and intent of this agreement is thnt 
defendants should go on to quarry stone and dispose of thein; 
the plaintiff is not bound to show how many might have been 
sold, or that defendants bought other stones, during the time 
for which damages are now claimed, and that plaintiff should 
recover just what he would have had if defendants had taken 
the same quantity from his quarry. The defendants have 
wholly refused to quarry stones; have made no_ attempt to an 
honest performance of the spirit and intent of their contract; 
tiie testimony produced by them on the trial, for the purpose 
of excusing themselves or throwing blame on the plaintiff, is 
too palpably absurd to be noticed. The jury are, therefore, 
to judge of what injury the phiintiff has received, by the non- 
performanceof this contract, and not let the defendants escape 
altogether, by their palpable evasion, because the contract 
has established no exact measure of damages. 

On this subject the court can only say, defendants had not 
covenanted what quantity shall be got out, or how many 
teams were to be employed; nor, although witnesses have 
stated that the defendants stated they intended employing 
their teams, are they bound to that as a measure of liability. 

The defendants owned one team, they used it for a time, 
and afterward sold it, and ceased to go on witli their con- 
tract altogether. If they had gone on with tiiat, hauling ten 
or twelve perches a day, perhaps the jury may think they 
would have been excused if they could have done no better. 
It is true it may be said the plaintiff has his stones, and they 
are worth as much now as ever; but although that is true, as 
a general proposition, it might lead to a false conclusion, as 



Watson v. O'Hehn. 341 

'is most evident. It will be for the jury, therefore, to say 
what damages the plaintiff has sustained by the total refusal 
of these defendants to attempt any sort of compliance with 
tlie spirit and meaning of their contract, from the 2oth of 
j June, 1834, to the 5th of February, 1835. 

To which charge of the court the defendants' counsel ex- 
'' cepted. 

Yerdict for plaintiff for $170 damages. 

Stewart, for plaintiff in error. 

SiiALEE & Livingston, contra. 

The opinion of the court was delivered by Seegeant, J. 

■ It is contended that by this instrument of writing the 
plaintiff granted and the defendants obtained nothing more 
than a privilege to take stone from the quarry, which they 
might or might not avail themselves of at pleasure, and that 
they were not bound to take out any stone except what the 
plaintiff should contract for, agreeably to the stipulation in 
his favor. I am disposed to tliink, however, that something 
more passed to the defendants than such a right, and that the 
defendants obtained, under this insti'uraent, the exclusive 
right to the use, occupation and enjo_yment of the demised 
premises during the term. The plaintiff certainly could not 
afterward have* granted to other persons a privilege, as it is 
termed, or right to enter and quarry the stone. The defend- 
ants might well have complained of such an attempt, and 
might have sustained trespass against any person exercising 
tlie right thus claimed. If the right of the defendants were 
not exclusive, it might be rendered, in a great measure, value- 
less by the plaintiff's acts. It appears to me to be exclusive, 
conferring on the defendants the sole right, making them 
owners during the term, constituting, in legal contemplation, 
a lease to them of the demised premises, with the relations 
and liabilities between the parties of landlord and tenant. In 
the instrument itself different words are used to express the 
nature of the contract. In one part, the premises, it is said, 
are to be for the sole use and under the control of the defend- 



342 Lease. 

ants dnriiig the term. If they fulfill the conditions they are 
to have "a new lease of the quarry in preference to any new 
applicant." Walker's part is in one place termed a privilege, 
and yet it is scrupulously excepted. In another part it is 
called his bargain in tlie quarry, and also his contract. It is 
an established rule of law that whatever words are sufficient 
to explain the intent of the parties, that the one should di- 
vest himself of tiie property and the other come into it for a 
determinate time; whether they run in the form of a license, 
covenantor agreement, will, in construction of law, amount 
to a lease as effectually as if the most proper and pertinent 
words were made use of for that purpose: 4 Bac. Abr. 161, 
tit. Leases, K. A license to inhabit amounts to a lease: Id. 
11 Mod. 42; 1 Ld, Eaym. 404. A license to enjoy a house 
or land from such a time to such a time, is a lease, and ought 
to be pleaded as such, though it may be pleaded as a license: 
Id. 2 Salk. 223. Words in an agreement that A shall hold 
and enjoy,if not accompanied by restraining words, operate 
as words of present demise: 5 Term. 163; Cro. Jac. 172; 2 
Mod. 80. If a grant be made of a boilery of salt, the land 
passes, for that is the whole profit: Co. Lit. 46; "Woodf. Land. 
& Ten. 5, 7, 8.' The whole profit of a quarry consists in the 
right of taking out the stone, and by a grant of all that right 
or Drivilege the land passes in the same manner as land passes 
by a grant of all the rents and profits. 

Then it is clear the parties contemplated that the quarry 
should be worked by the defendants to some extent, and not 
lie idle and unproductive to the landlord, and that extent is 
declared to be so much stone as the defendants should be able 
to find use for. They are described as stone cutters, and in 
the course of their trade, the parties must have presumed 
they would find occasion for a supply of more or less of the 
stone. The exact amountthey would be able to dispose of could 
not be ascertained beforehand, because it must depend on the 
growth of the city and neighborhood and the consequent 
demand for the material. But that there would be no de- 
mand at all was not to be supposed, nor did the defendants 
attempt to show that to be the case. They were, therefore, 
free from any obligation to quarry stone from the premises, 
except so much as they should be able to use, or, in other 



WATsoif V. O'PIekn. 343 

words, find demand for in 'their business. It would surely be 
a violation of the nieaniijo' and design of the lease, if thev 
should leave the quarry entirely idle, either to work some 
other quarry, or for any reason short of what would lej^ally 
excuse them. There is abundant evidence in the lani^uagc of 
the lease to show that tiie parties contemplated the quarry 
should be worked. Tlie exception of the part leased to 
"Walker, the adjustment of tlie rent accordihg to the measure 
of the stone taken out, the clause relating to the place of de- 
posit of the stripping, tlie asireement to furnish orders on the 
proprietors of buildings for the plaintiff's proportion within 
fifteen days, the restriction of injury to the plaintiff's pasture 
and fences, all contemplate a working of the quarry. The 
exact extent is ascertained only in one eveat, and that was, if 
the defendants required Walker's part, and then they bind 
themselves to keep four teams constantly at work during 
nine months of the year. 

, The clause by which the defendants covenant to fulfill con- 
tracts to be made by the plaintiff' seems to be only an addi- 
tional obligation on the defendants and not to comprehend all 
that they were bound to do. Such a constructiou is irrecon- 
cilable with the tenor of the agreement, especially with the 
clause by which the defendants stipulate to furnish to the 
plaintiff orders on the proprietors of buildings for his amount 
of claim on each contract, which evidently refers to contracts 
made by the defend'ants. 

If the defendants had anj-^ excuse, legal or equitable, from 
the responsibility thus assumed by their agreement, it lay 
upon them to show it. The plaintiff was not bound to prove 
the extent of their capacit_y to fulfill the contract. The lease 
presupposes they would work the quarry, and gives them the 
entire control over the premises; and being themselves ac- 
quainted with their own business and concerns, they were best 
able to show the extent to which they were able to work it, or 
if not worked at all, the reasons for their inability. Not hav- 
ing done so, it was for the jury to give such damages as they 
might deem a compensation for the loss of rent. There is, 
therefore, no error in the charge of the court on this subject. 

Nor is the third error sustained. This action is for dam- 
ages for non-payment of rent, and a former redovery for one 



344 Lease. 

part of the term does not preclude a Buit for otlier daranges 
sustained by the lessee's non-payment of rent during, another 
period of the term for which he was liable. Though the in- 
strument sued on is the same, the causes of action are differ- 
ent. 

Judgment affirmed. 



Phillips v. Jones, 

(9 Simons, 519. High Court of Chancery, 1839.) 

' Rental enforced agrainst lessee of niiworkable mine. Plaintiff was 
lessee of a coal mine at the rent of £300 a year, and subject tt> a royalty 
of 10 shillings for every wey of coals raised in each year above 600, that 
being the qunntity considered to be paid for by the £300 a year, and he 
was authorized to determine the lease on the coal being worked out. 
Plaintiff worked the mine for several years, and when it was nearly 
exhausted he was prevented by accidents and defects in it from continu- 
ing work except at a ruinous expense. The court refused to restrain 
defendant from suing to recover the £300 a year, although the plaintiff 
offered to pay him 10 shillings per wey for all the remaining coal. 

The plaintiff was lessee for twenty-one years, under the de- 
fendant, of a piece of ground in Monmouthshire, with liberty 
to, dig for coals under it, at tiie yearly rent of £300, to be paid 
whether any coal should or should not be raised, and subject 
to a royalty of 10s. for every wey that should be raised in each 
year of the term over and above 600, that being the quantity 
considered to be paid for by the yearly rent of £300. The 
lease contained a proviso enabling the plaintiff to determine 
the term in case all the coal should be exhausted before the 
expiration of it. 

After the plaintiff had worked the mines for some vears, 
and had paid the defendant £2,780 in respect of the rent and 
royalty, he discovered that, owing to certain unforeseen de- 
fects in the mines and to accidents in attempting to work 
them (which were mentioned in the bill), he could not con- 
tinue the working except at a ruinous expense; and thereupon 
he gave the plaintiff' notice of his intention to determine the 

' WalUr^. Tu'eker,8 M. R. 672. 



Phillips v. Jones. 345 

lease, Ijut tlie defendant refused to accept a surrender of it, 
insistinj^ that the plaintiff was bound to get the remaining 
coal, and brought an action against him for the rent of £300 
a year. 

The bill prayed for an injunction to restrain the action, the 
plaintiff offering to pay the defendant 10s. per wey for all the 
coal which, on a reference to the master, should be found to 
have been under the land at the date of the lease, on being al- 
lowed what he had already paid. 

Mr. Knight Bruce, Mr. Jacob and Mr. Pullek, now 
showed cause against dissolving the injunction: — The object 
of the parties to the lease was a sale of the coal at a certain 
sum per wey, and the price of it is thrown over the whole 
term by installments of not less than £300 a year. By the 
terms of the lease, the plaintiff will be at liberty to determine 
it when the coal is exhausted; but, in exhausting it, he will 
ruin himself. The quantity remaining. (if any), is very small, 
and ought it not to be considered as exhausted when it can 
not be gotten except at a most ruinous expense? If the 
plaintiff (as he offers to do), pays the defendant for the whole 
of the coal ihsCt was under the land, every object of the lease 
will be answered. Indeed, the defendant will be placed in a 
better situation than if he had waited for his money until the 
whole of the coal had been worked out: Smith v. Morris, 2 
Bro. C. C. 311. Tlie argument for the plaintiff in that case 
prevailed, and every word of it is applicable to the present 
case. The plaintiff was to pay for 600 weys of coal yearly, 
whether he raised that quantity or not, and it would be defeat- 
ing all tlie purposes of justice, if the £300 a year, which he 
was to pay, were not put on the footing of a penalty: Astley v. 
Weldon, 2 Bos. & Pull. 346. 

Mr. Spenoe and Mr. Gildekstone appeared for the defend- 
ant, but the Vice Chancblloe, without hearing them, said: 

This case is materially different from the case of Smith v. 
Morris, for that case proceeded on this, namely, that by the 
terms of that lease, the lessee was bound to work the mine, and, 
In respect of the produce, a certain royalty was to be paid to the 
lessor; and it was said that the circumstances of the mine were 



346 Lease. 

sncli that the lessee would be mined if he were compelled to 
work it, and therefore it was just that he sliould be relieved 
from the covenant to work the mine, if he gave the landlord 
all that he could have been entitled to if the mi^ie had been 
worked according to the covenant; that is, a royalty of 95. Qd. 
for every wey of coals contained in the land. But this lease 
is constructed in a different manner. In the first instance 
there was to be paid, ''yearly, during the term of twenty-one 
years, a gross sum of £300 whether the coal was worked or 
not, and a royalty of 10s. per wey was to be paid if more 
was raised than 600 weys; and there was a covenant in the 
lease which bound tlie lessee to work the mines. Tlien came 
a proviso enabling the lessee, on giving notice, to determine 
the lease when all the coal sliould be worked out; and conse- 
quently, when all the coal should be exhausted, the tenant 
might, by giving the I'equired notice, free himself from all 
the obligations of the lease. 

If an action had been bronglit, on the covenant, to compel 
the plaintiff to continue the working of the mines, and tiiere 
had been no other reservation in the lease than a royalty of a 
certain sum per wey on all the coal raised, then tlie court 
would have applied tiie principle of Smith v. Moms, and 
would have relieved the plaintifl'from the expense of working 
an unprofitable mine, on his paying the defendant for all the 
coal under the land, which would, in substance, be giving him 
all that he was entitled to under the lease; for he could derive 
no benefit from compelling the plaintiff to continue the work- 
ing of the mine. In this case, however, there is a fixed sum 
of £300 a year to be paid, whether the mines are worked or 
not; and therefore the court can not relieve the plaintiff 
from the payment of that sum. The consequence is that th& 
order for dissolving the injunction, so far as it restrains the 
action on the covenant to pay the £300 a year, must be abso- 
lute. 



Talbot v. Ford. 847 

Talbot v. Foed. 

(13 Simons, 173. High Court of Cliancery, 1842,) 

Pnconscionable covenants not aided in equity. Lessee of mines cov- 
enanted that if the lessor should at any time before the expiration or 
determination of the lease give notice in writing to the lessee of his de- 
sire to take all or any part of the machinery, stock in trade, imple- 
ments, etc, in and about the mines, then the lessee would, at the ex- 
piration of the lease, deliver the articles specified to the lessor on his 
paying the value, such valae to be fixed by arbitration. Held, that the 
covenant was so injurious and oppressive to the lessee that the court 
ought not to interfere by injunction to prevent its breach. 

The plaintiff was the lessor, and the defendant, Digby, was 
the lessee, of certain mines in Wales, for thirty-one years 
from the 25tli of March, 1837. The lease contained a cove- 
nant on the part of the lessee, that in case the plaintiff, his 
heirs or assigns shonld, at any time before the expiration or 
sooner determination of the lease, give to Digby, his execu- 
tors, etc., notice in writing of his desire to take, at a valua- 
tion, all or any part of the movable machinery, going gear, 
stock in trade, implements, utensils, articles and things in or 
about the mines, then Digby, his executors, etc., would, on the 
expiration or determination of the lease, deliver to the plaint- 
iff, his heirs or assigns, all or such part of the said movable 
machinery, etc., as should be speciHed in the notice, and 
thereupon the plaintiff, his heirs or assigns, should' pay to 
Digby, his executors, etc., the fair value of the articles so de- 
livered, such value to be settled by arbitration. 

In 1841 Digby assigned the machinery, implements, uten- 
sils and other articles in and about the mines, to the defendant 
Ford, as a security for money lent. 

In 1842 Ford advertised the articles for sale, in pursuance 
of a power for that purpose contained in his security. Shortly 
afterward the plaintiff, without having taken any step to de- 
ter'inine the lease, served Digby with a notice in writing, 
expressing his desire to take, at a valuation to be made ac- 
cording to the covenant, snch part of the movable machinery, 
going gear, etc., in and about the mines, as was mentioned in 



348 Lease. 

the notice, and tlien filed the bill in this cause, praying that 
it might be declared that he was entitled to have the covenant 
specifically performed, and that Ford might be restrained 
from selling or removing the articles mentioned in the notice. 

Mr. Bkthell and Mr. W. M. James, nov? moved for the 
injunction. • ' 

Mr. Wakefield, Mr. G. Eichaeds, and Mr. Chandless, 
opposed the motion. ^ 

They said, first, that, under the covenant which the bill 
sought to enforce, the lessor might give notice, shortly after 
the commencement of the term, of his desire to purchase the 
stock in trade, or any of the other articles mentioned in the 
covenant, and thereby prevent the lessee from disposing of 
his stock in trade or of any of the other articles specified in 
the notice, until the end of the term; and that such a cove- 
nant was so hard and unreasonable, that the court would not 
give effect to it: Eimlarley v. Jennings, 6 Sim. 240; secondly, 
that the court would not act uyjon an agreement to purchase 
property at a price to be fixed by arbitrators: Oourlay y. 
The Dulte of Somerset, 19 Ves. 429. 

The Vice-Chancelloe. 

It is not unusual to insert, in leases of mines, a covenant 
which enables the lessor to purchase machinery and other ar- 
ticles belonging to the lessee and used by him in working the 
mines, on the lessor giving notice of his desire to purchase 
them, shortly before the expiration of the lease; so that the 
lessor's option of purchasing the articles, is, of necessity, con- 
fined to such as may be in or about the mines at the expira- 
tion of the lease. But the covenant on which the present 
motion is founded, enables the lessor, at any time after the 
commencement of the term, to put, as it were, a ne amoveas 
upon the lessee's stock in trade and other articles used by 
him in working the mines; that is, it enables the lessor to 
defeat, to a considerable extent at least, the object and inten- 
tion of the lessee in taking the lease. For I do not see how,' 



Foley v. Addenbkooke. 349 

consistently with the power whicli this covenant purports to 
give to the lessor, the lessee can work the mines to any 
advantage. It seems to me tliat it was by mere want of cau- 
tion that this covenant was worded as it is, for I can not sup- 
pose that the parties could have intended that it should be 
expressed in the unqualified terms in whicli we find it. But, 
be that as it may, my opinion is that it is so injurious and 
oppressive to the lessee, that this court ought not to interfere 
for the purpose of giving effect to it, and therefore I shall 
not grant the injunction. 



Foley et al. v. Addenbrooke et al. 

(13 M & W. 174. Court of Exchequer, 1844r) 

'Covenant as to mixing ores. A leasee of iron works and mines cove- 
nanted to work the furnaces efi'ectually, unless prevented by inevitable 
accident or want of materials, or unless the ironstone should be insuf- 
ficient in quantity or quality, or would not by itself or with a proper 
mixture, or process, make good, common pig iron : Held, that the 
mixture intended was not necessarily of ore procurable on the demised 
premises. 

Alternative rent covenants— Donlble recovery not alloTved. Where 
the lease contained a covenant to raise a certain quantity of ironstone 
during each quarter, and pay certain royalties upon it, or else to pay a 
certain fixed quarterly rent: Held, that the landlords, having declared 
upon breaches of both the above covenants, and money having been 
paid into court and accepted in satisfaction of the latt'jr, were entitled 
to nominal damages only in respect to the former. 

- Removal of machinery— Fixtures. The lease contained a covenant to 
repair and yield up the furnaces, fire engine, iron works, dwelling 
houses and all other erections, buildings, improvements, etc., except 
the ironwork, castings,.railtvays, etc., machines, etc.; Held, that the 
lessees had the right to remove whatever was a machine or in the 
nature of a machine or part of a machine, but not what was in the 
nature of a building or support of a building, although made of iron. 

Injury to freehold by removing machinery. In removing from iron 
works machinery, etc., allowed to be removed, the lessees may disturb 
such brick work as is necessary, and are not bound to restore it to a per- 
fect state, being liable in damages for any unnecessary disturbance of 
such brick work. 

^Humphrey sville Co. v. Vermont Copper Co., 33 Vt. 92. 
"Wake \. Hall, e M. R. 119. 



350 Lease. 

This was an action of covenant, wli'cli came on to be tried 
at the summer assizes for tlie county of Stafford, in 1843, be- 
fore Williams, J., when a verdict was taken for the plaintiffs 
for the damages in tlie declaration, subject to the opinion of 
this court on the following case, which was stated by a gentle- 
man at the bar, to whom the matter was referred for that pur- 
pose. 

This action was brought by Edward Thomas Foley, Esq., 
and Sir Edward Dolman Scott, Baronet, as the respective 
heirs of Eliza Maria, Foley and Mary Whitby, against the de- 
fendants, as the assignees of J. A. Addenbrooke, to recover 
damages for the breacli of certain covenants contained in an 
indenture of leiiss, bearing date the 8th day of January, 1799, 
and made between one Edward Foley and the said Eliza Maria, 
his wife, and the said Mary Whitby, of the one part, and the 
said J. A. Addenbrooke, of the other, whereby the said Edward 
Foley and the said Eliza Maria, his wife, and the said Mary 
Whitby demised unto the said J. A. Addenbrooke, liis execu- 
tors, administrators, and assigns, first, a close of land therein 
described as being part of two certain pieces of land called or 
known by the several names of Long Meadow and Near Moor 
Croft, and, secondly, a certain other close of land called or 
known by the name of the Roundabout, being part of a certain 
• farm called Bradley liall farm, situate and being at Bradley, in 
the county of Stafford, together with certain powers, liberties, 
licenses and authorities in the said indenture mentioned, for a 
term of forty-two years, to commence f'vom tlie 25th of Decem- 
ber then next ensuing. And the said indenture contained, 
amongst other covenants and provisions, a covenant by the said 
J. A. Addenbrooke, the lessee, to erect a furnace and iron works 
thereon; and in case sufficient ironstone could begot to supply 
another furnace, to erect a second furnace within ten years, for 
the purpose of making and smelting iron; and from time to 
time, and at all times daring the said term thereby demised, 
to carry on and effectually work the said furnace and iron 
works, and second furnace, as the case might be, witJiout 
intermission or loss of time, save only for such time and times 
as there should be absolute necessity for stopping or discon- 
tinuing the sai^i furnaces and iron works for repairs or altera- 
tions, or from any other unavoidable accident that miglit hap- 



Foley v. Addenbeooke, 351 

pen to the same, or the want of supply of necessary materials 
for carrying on the same, or in case the ironstone to be got or 
raised by the said J. A. Addenbrooke, his executors, adminis- 
trators or assigns, from and out of tiie lands and grounds of 
the said Edward Foley and Eliza Maria Foley, his wife, and 
the said Mary Whitby, as thereinafter mentioned, should be 
insufficient in quantity to supply the said furnaces or iron works, 
or would not by itself, or with a proper mixture and process in 
the smelting or manufacturing tliereof, make good pig iron. 

Upon this last covenant the plaintiffs assigned a breach in 
the following words: "That on the first of January, 1816, 
and 071 divers days and times between that day and the expira- 
tion of the lease, the said furnaces and iron works were not, nor 
was either of them, carried on or effectnally worked without 
intermission or loss of time, although on those days and times, 
or any of them, there was no necessity for stopping or discon- 
tinuing the said furnaces and iron works, or anj' part thereof, 
for repairs or alterations, or from any unavoidable accident, 
or the want of supply of necessary materials for carrying on 
the same, and although at all those days and times the iron- 
stone to be got and raised from and out of the lands and 
grounds in the said indenture mentioned was sufficient in 
quantity to supply the said furnaces and iron works, and such 
ironstone could by itself, and witii a proper mixture and proc- 
cess in the. smelting and manufacturing thereof, make good 
common pig iron." 

To this breach the defendants, after oyer of the indenture 
of lease, pleaded, first, performance of the covenant; secondlj', 
that defendants were prevented from carrying on the furnaces 
by necessary repairs and unavoidable accidents, and flie want 
of necessary materials; thirdly, that the ironstone was not 
sufficient in quantity nor quality to make good pig iron. 

The said J. A. Addenbrooke, the lessee, after the execution 
of the said lease, en tared upon the demised premises, and in 
compliance with his covenant erected thereon, within the 
first year of the said term, one good, sufficient, and substantial 
furnace or iron work called furnace No. 1, and a fire engine, 
for the purpose of smelting iron, with sufficient other nec- 
essary erections and buildings for carrying ou the iron trade; 
and within the fii'stten years of the said term, also erected a 



352 Lease. 

second furnace, 'No. 2, for the purpose of msiking and smelting 
iron as aforesaid; and the said tnrnaces and iron works were, 
and eacli of tliem wa^, carried on and eiiectnally worked with- 
out intermission or loss of time, according to the true intent 
and meaning of tlie said covenant, by the said J. A. Adden- 
brooke in his lifetime, and by the defendants after the decease 
of the said J. A. Addenbrooke, until the last year of the said 
term. But in the month of May in that year, the defendants 
caused the furnace No. 2 to be put out; and in the month of 
August following, they caused the furnace No. 1 to be also 
put out; and from the month of May till the month of Au- 
gust in that year the furnace No. 1 alone was in work; and 
from the month of Au^;ust to the end of the term both fur- 
naces had ceased to work. At the times that the furnaces 
were extinguished by the defendants as aforesaid, there was 
no necessity for stopping or discontinuing the said furnaces, 
or either of them, for any necessary repairs or alterations, or 
by reason of any unavoidable accident; but if the said fur- 
naces had been kept in work up to the last day of the said term, 
it would not have been. possible for the defendants to have ex- 
ercised during the term any right they might have, either 
under the provisions of the lease or at common law, of re- 
moving the machinery and fixtures belonging to the said 
furnaces and iron works. The space of time, however, be- 
tween the month of August and the end of the term was 
longer than was absolutely necessary for the purpose of re- 
moving the same. Neither was there any necessity for stop- 
ping and discontinuing the said furnaces, or either of them, 
by reason of the want of supply of necessary materials for car- 
rying them on, unless the court shall be of opinion that the 
following facts amount to a want of supply of necessary ma- 
terials. 

The said indenture, besides the demise of the above men- 
tioned closes of land, also contained a demise to the said J. 
A. Addenbrooke, his executors, administrators and assi"-ns, of 
all and singular the mines and veins of ironstone in and un- 
der the demised closes, and also under certain other closes of 
the lessors mentioned and described in the said indenture of 
lease, but not demised thereby, with liberty from time to time, 
and at all times during the continuance of that demise, to en- 



Foley v. Addenbkooke. 353 

ter into and upon the said lands and premises, and there to 
work the said mines of ironstone for a lilse term of forty-two 
years, commencing, as afoi-esaid, at the rent of iis. a bloom for 
each and every bloom of ironstone (other than and except for 
the refuse ironstone therein mentioned) and so on in propor- 
tion for any greater or less quantity than a bloom, which the 
said J. A. Addenbrooke, his executors, administrators or as- 
signs should, from time to time during the continuance of 
that demise, raise or get out of the aforesaid lands or mines, 
each bloom to be of the weight tlierein mentioned, to be paid 
and payable by four equal quarterly payments in each and 
every year of the said term. And the said J. A. Adden- 
brooke further covenanted to pay the sum of 3s. for each and 
every bloom of ironstone as aforesaid, which he, the said J. 
A. Addenbrooke, his executors, administrators and assigns 
sliould from time to time raise and get out of the said mines 
thereby demised; and also quarterly and every quarter of a 
year during the continuance of that demise, to raise and get, 
from and out of the said mines thereby demised, (if there to 
be found,) not less than 780 blooms of ironstone, and as much 
more, quarterly and annually, as the said furnaces and works 
should or might use or consume, or otherwise to pay to the 
said Edward Folej' and Eliza M. Foley, his wife, and the said 
Mary Wliitby, and the heirs and assigns of the said Eliza M. 
Foley and Mary Whitby, respectively, the sum of £468, by way 
of rent for tbe said mines of ironstone, yearly, during such part 
of the said term that tlie said J. A. Addenbrooke, his heirs, 
executors, administrators or assigns, should not raise or get 
3,120 blooms of ironstone out of the mines thereby demised, in 
case the said mines, if worked according to the true intent 
and meaning of the said indenture, would produce that quant- 
ity annually. 

The same to be paid and payable by four equal quarterly 
payments in every year, in manner thereinbefore mentioned. 

(The case then stated that tbe lessors were owners of tlie coal 
underneath the demised lands and the other closes of land, 
and at the time of the demise were working tlie coal pits 
there; and there was an exception out of the demise of the 
coal under the demised land, with power to the- lessors to get 
and sell the same; with a proviso that nothing should author- 
voL. VIII— 23 



354 Lease. 

ize the lessee to get ironstone under any of the Lands where 
the getting of the same might prejudice the lessors in getting 
the coal.) 

And tiie said indenture also contained a covenant by the 
said J. A. Addenbrooke to buy of and take from the said les- 
sors, and their respective heirs and assigns, from the mines 
and coal works at Bradley aforesaid, weekly and every week, 
from time to time and at all times during the continuance of 
that demise, at least two hundred tons weight of coal of the 
description and qualities therein mentioned, and also all such 
further quantity of coal of the quality and description and 
weights therein mentioned, and also all the small coal that 
the said J. A. Addenbrooke, his executors, 'administrators or 
assigns, should, from time to time during that demise, use or 
consume at the said intended furnaces and iron works, in case 
the said lessors and their respective heirs could supply the 
same from the said works at Bradley aforesaid, and not of any 
other person or persons whomsoever, to be paid for at certain 
prices therein mentioned; with a covenant by the said J. A. 
Addenbrooke, his executors, administrators or assigns, not to 
buy, fetch, use, burn, consume or employ any coal or ironstone 
as aforesaid at the said furnace, iron works and other works 
erected on the said demised lands and premises, pursuant to 
the covenants thereinbefore contained, or in or about any of 
tlie manufactories there carried on, or which lie, the said J. 
A. Addenbr&oke, his executors, administrators or assigns, 
should be in anywise concerned or interested in, upon the 
said thereby demised premises, from any other colliery or col- 
lieries, mine or mines, belonging to any other persons whom- 
soever other than the said lessors and their heirs and assiffus, 
in case they could get and raise sufficient and proper coal, and 
a sufficient and proper quantity and quality of ironstone could 
be got or found in the mines thereby demised; and except at 
such time and times only as the said lessors, and their re- 
spective heirs and assigns, should not be able to supply the 
said J. A. Addenbrooke, his executors, administrators and as- 
signs, with a sufficient quantity of coals of the description 
aforesaid; and also except such Lancasiiire or other iron ore 
as the said J. A. Addenbrooke, his executors, administrators 
and assigns, might have occasion to use at the said furnaces 



Foley v. Addenbeooke. 355 

and iron worts for the better flaxing and improving the said 
ironstone to be raised out of the said mines, not thereby less- 
ening the quantity of 3,120 blooms to be annually got and 
raised out of the said premises' thereby demised. 

The said indenture also contained a corresponding cove- 
nant by the lessors, at all times during the continuance of the 
demise to continue to work the mines then open, and raise 
and get the thick coal in and under the several closes of land 
thereinbefore mentioned, and to sell and deliver to ihe lessee 
at least two hundred tons of cpal weekly, in case they could 
get and raise so much from the said works; and not to sell to 
any other person until they should have supplied the lessee. 

The case then stated that the lessors, and, after their de- 
cease, the plaintiffs, continued to raise the coal during the 
lease, and at the time of the alleged breach were occupiers of 
the coal pits; and that they, failed to supply sufficient coal, 
but supplied all that could be got from the pits; and the de- 
fendants were able to procure coals from other collieries at the 
market price. 

At the time of the alleged breach of covenant, there was 
not any insufficiency in the supply of ironstone from the said 
demised mines, there being, at the time that the furnaces 
were put out, between twenty and thirty acres of ironstone 
urigot, wliich the defendants might have got for the supply, of 
the furnaces. 

The ironstone so remaining ungot was of a kind called new 
mine, and incapable of making salable pig iron without the 
mixture of a richer ore called blue flats, or of an ore called 
Lancashire ore, but no blue flats or Lancashire ore were pro- 
duced from tlie mines demised to the defendants as aforesaid, 
and the new mine stone had been got arid smelted by the de- 
fendants and their predecessors from the same mines for many 
years prior to the year 18il, and the time of the said alleged 
breach of covenant; but, at the commencement of the lease, 
and for a long period during the lease, a richer ore, called the 
" gubbin stone," lying nearer to the surface, and above the 
new mine, was got and smelted by the defendants, and it was 
not till the exhaustion of the gubbin stone that they began to 
work the lower stratum of inferior ore called new mine. 

Tlie plaintifl's, in their declaration, also assigned breaches 



356 Lease. 

on the several covenants by tlie lessee to pay the rent of 3s. a 
bloom for every bloom of ironstone to be got dnrin;i; the term, 
and also to raise not less than 780 blooms of ironstone yer 
quarter, or to pay £468 yearly, by way of rent, every year that 
he should not raise 3,120 blooms of ironstone. 

On these breaches the defendants paid money into court, 
which the plaintiffs took ont in satisfaction of the same, and 
the defendants have in fact paid 3s. per bloom for every bloom 
of ironstone actually raised by them during the last year of 
the said term, and also the -sum of £468 in respect of the 
quantity by which the amount raised in that year had fallen 
short of 3,120 blooms. But the two furnaces, if both of tliem 
had been effectually worked during the whole of the last year 
of the term without intermission, would liave consumed a far 
greater quantity than 3,120 blooms of ironstone. 

The said indenture also contained a further covenant, that 
he, the said J. A. Addenbrooke, his executors, administrators 
or assigns, should and would, from time to time, and at all 
times during that demise, well and sufficiently repair, amend, 
maintain, scour, cleanse, preserve aiid keep in good, sufficient 
and tenantable order and repair, all the gates, rails, stiles, 
hedges, ditches, mounds and fences of and belonging to the 
said hereby demised lands and premises, and the furnace and 
furnaces, fire engine, iron works, dwelling houses and other 
erections and buildings to be erected and built by the said J. 
A. Addenbrooke, his heirs, executors, administrators or as- 
signs, on the said demises lands and premises, he and they 
being allowed to get clay (other than and except fire clay), 
from time to time upon the said premises, if there to be 
found, for making of bricks, tiles and other articles for erect- 
ing, building, altering and repairing the said furnace and 
furnaces, fire engine and other erections and buildings, or 
otherwise, for the use of the works to be carried on by the 
said J. A, Addenbrooke, his executors, administrators or as- 
signs, and to be used on the premises only; and the said fur- 
nace and furnaces, fire engine, iron works, dwelling houses 
and all other erections, buildings, improvements and altera- 
tions, to be thereinafter erected, built or set up (except the 
iron work castings, railways, gins, wimseys, machines and the 
movable implements and materials used in or about the said 



FOLKY V. Ar/DE-NBliOOKE. 357 

furnaces, fire engines, iron works, stone pits and premises), so 
repaired, amended and kept in repair as aforesaid, should and 
Would, at the expiration or other sooner determination of the 
lease, quit, leave, surrender and yield up into the hands and 
■quiet possession of the said lessors, without any molestation, 
■ liiudrauce or interruption whatsoever. Upon this the plaint- 
! iffs assigned a breach in the words of the covenant, that the 
defendants did not repair nor leave in repair at the end of the 
lease, but, on the contrary, part of the furnaces, etc., being 
other than the iron work, etc., was by the defendants wrong- 
fully pulled down and removed, and the furnaces, etc., being 
other than the iron work, etc., were suffered to be and continue, 
and at the expiiration of the lease were left, in bad order and 
condition for want of repair. 

To tliis breach the defendants pleaded, first, a special trav- 
erse of the breach, and averred that the defendants did well 
and sufiiciently repair the said gates, etc., and the said fur- 
nace, fire engines, iron works, etc., and yield up the same so 
repaired, other than the iron work castings, etc., according to 
the covena-nt,. absque hoc, etc; secondly, that the said matters' 
and things in that breach complained of were, and each 
and every part thereof was done and occasioned under, by 
virtue, and in execution of the said powers, rights, liberties 
and privileges granted and reserved to the said J. A. Adden- 
brooke in and by the said indenture of lease in the said 
declaration above mentioned; thirdly, as to so much of the 
breach of covenant secondly above assigned as relates to the said 
gates, etc., and to the said residue of the furnaces, fire engine, 
iron works, dwelling houses and other erections and buildings, 
the defendants say, that they, the said defendants, would have 
kept and performed their said covenant with regard to the 
same and every part thereof, if the plaintiffs had not entered 
and come into possession of the said demised lands and prem- 
ises and obstructed the defendants as hereinafter mentioned. 
And the defendants, in fact, say that the plaintiffs did, before 
the time of committing so much of the said breach of cove- 
nant as in the introductory part of this plea is mentioned, or 
any part thereof, to wit, on the first day of January, 1836, 
and on divers other days and times between that day and the 
<iay of the expiration of the said demise, with carts, carriages, 



358 Lease. 

horses and workmen, enter and come into and upon the said 
demised lands and premises, and put and place divers large 
quantities of dirt, aslies, rubbish, coal and other substances 
upon the said demised lands and premises, and near to, in and 
upon the said gates, rails, stiles, hedges, ditches, mounds and 
fences, and near to, about, in and upon the said residue of the 
furnaces, iire engine, iron works, dwelling houses and other 
erections, and incumbered, choked up, injured and destroyed 
the same, and kept and continued the same so incumbered, 
clioked up, injured and destroyed, for a long time, to wit, till 
the expiration of the said demise; and they, at the said times 
in the second breach mentioned, hindered and prevented the 
defendants from performing their said covenant, as to so much 
thereof as they are alleged to have broken in the part of the 
said breach by the plaintiffs secondly above assigned. The 
fourth plea was, as to so much of the breach as relates to the 
residue of the furnaces, etc., that the plaintiffs wrongfully 
mined under the demised lands in the breach mentioned, and 
vnder the lands adjoining thereto, by reason whereof the 
residue of the said furnaces, etc., became out of condition 
without the default of the defendants, whereby they were 
hindered from performing their covenant. 

The plaintiffs joined issue on the first of these pleas; to the 
second they replied, denying that the matter and things al- 
leged in the breach were done or occasioned under or by vir- 
tue or in execution of the powers, rights and privileges 
granted and reserved to the said J. A. Addenbrooke by the 
said lease; and to the third and fourth pleas they replied de 
injv/ria. 

Besides the said two furnaces hereinbefore mentioned, the 
defendants also built on the first demised close of land very 
extensive iron works, consisting of casting houses and a forge 
and mill, together with refineries, furnaces, warehouses, sheds, 
and buildings necessary and requisite for carrying on the iron 
trade, and they also built necessary houses for workmen to 
reside in to carry on the intended iron works. 

The indenture of lease contained a proviso, that at tlieend, 
expiration, or other sooner determination of the demise, the 
lessors and their respective heirs should, upon their giving 
six months' previous notice, in writing, of their intention. 



Foley v. Addexbeooke. 359 

whether they would purchase or not, to the said J. A. Adden- 
brooke, his executors, etc., have an option of purchasing tlie 
several iron castings, railways, gins, wimseys, boilers, ma- 
chines and movable implements and materials then in use, or 
being in or about the said furnaces, fire engine, iron works^ 
stone pits, lands and premises, at a price to be determined in 
the manner therein mentioned; and, in the event of their 
neglecting to avail themselves of tlieir option in that behalf, 
then it should and might be lawful to and for the said J. A. 
Addenbrooke, his executors, administrators and assigns, to re- 
move and carry away, for his and their own use and benefit, 
all and every the said several iron castings, railways, gins, 
wimseys, boilers, machines and movable implements and ma- 
terials then in use, or being in or about the said furnaces, 
fire engine, iron works, stone pits and premises. 

A gin is a windlass fixed in the ground and worked by a 
horse, for the purpose of drawing minerals out of a mine; a 
witnsey is a machine of a similar kind, used for the same pur- 
pose, but worked by a steam engine. 

The plaintiffs did not avail themselves of the said proviso, 
nor give to the defendants any notice of purchasing the 
above mentioned articles, and the defendants, before the ex- 
piration of their lease, disannexed from the freehold and took 
away the several articles hereinafter enumerated and particu- 
larly described, and in so doing injured and damaged the said 
furnaces and iron works. 

First. A blast steam engine, or fire ■ engine, forming, to- 
gether with its boilers, regulators and hot air apparatus, one 
mechanical contrivance for blowing the said furnaces by 
means of a hot blast. 

The boilers of the engine were made of wrought iron and 
rested on foundations of brick work, called the boiler seats, and 
were built in and surrounded by flues of brick work, lined with 
fire brick, proceeding from the boiler grates for the purpose 
of conveying the flame underneath and around the boilers. 
The surrounding and superincumbent brick work of the flues 
held the boilers firmly fixed in their seat4, so that they could 
not be removed without taking away tiie flues. The boiler 
grates consisted of bearers of cast iron, set in brick work, with 
cross-bars and a door-frame and a door also of cast iron. 



3G0 Lease. 

The defendants took away the boilers and the grates, and 
pulled down the lines and took away part of the bricks from 
the seats of the boilers. A ])ipe called the steain pipe pro- 
ceeded from the boilers to tlie steam cylinder of the engine, 
connecting the boiler with the engine. 

The blast engine was erected in a separate bnilding called 
the engine house, and consisted of a cast iron cylinder called 
the steam cylinder, resting npon a basement of solid brick 
vpork, to which it was fixed by rods of wrought iron, screwed 
at one end into the bottom plate of the said cylinder and at 
the other into plates of cast iron let into the bottom oftiie 
brick work on which the cylinder rested. From the top of the 
steam cylinder proceeded a rod of iron called tlie piston rod, 
which, by the action of the steam in the steam cylinder, 
worked the beam of the engine; this latter was supported by 
an erection of brick work, called the lever wall, on the top of 
which were certain carriages of cast iron, called the beam 
carriages, in which the beam of the enirine worked, which were 
lixed to the lever wall by similar rods of wrought iron, screwed 
at one end into the bottom plates of the beam carriages, and at 
the other into holding-down plates let into the lever wall at 
the bottom. 

The beam carriages were also attached by means of screws 
to two large beams of timber called the spring beams, placed 
parallel to the beani of the engine, and supported by the lever 
wall in the center, and by the external walls of the engine 
house at their extremities; the parallel motion apparatus was 
also screwed to the spring beams. A rod proceeding from the 
other end of the beam of the engine worked another cylinder, 
called the blowing or blast cylinder, situate on the opposite 
side of the lever wall to the steam cylinder. This was also 
supported by a similar basement of brick work, to which it 
was fixed by means of holding-down rods and holding-down 
plates, in precisely the- same way as the steam cylindei-. The 
engine beam had been formerly made of wood, but, at the time 
of the removal of the engine by the defendants, was of cast 
iron. The rest of the engine consisted of the air-pump, con- 
deuper, machinery and gear of the engine. 

The term "steam engine" or "fire engine," is applicable to 
the whole structure, including the brick supports of the 



Foley v. Addei^beooke. 361 

cyliuder, the lever wall and the spring beams, as well as to 
the cylinders, gear, and machinery of the engine. In this 
sense the spring beams were the timber parts of tlie engine, 
and the lever wall and the supports of the cylinders, the 
brick parts of tlie engiiie, and tlie residue, tlie metallic parts 
of the engine, but the briclt work and timber were merely 
supports to the mechanical parts of the engine, which were 
made of metal (xc.lusively. The metallic parts of tlie said 
steam engine were made of cast iron and wrought iron, 
with some small portion of brass, and the cast iron parts 
would be properly described as the castings of the engine, 
and those made of wrouglit iron as the iron work of the 
engine. These terms are correctly applied to all articles 
made of cast iron or wrought iron respectively, whether form- 
ing parts of machinery, or attached to buildings, or loose, 
and castinus means made of cast iron, and iron work means 
wrought iron. 

By taking out the rods which affix the cylinders and the 
beam carriages to the holding-down plates, and by taking out 
the screws which fix the beam carriages and the parallel mo- 
tion to the spring beams, the whole of the mechanical part of 
the engine might be disattached without injury to the struct- 
ure. But the holding-down plates, being let into the brick 
work, could not be removed without injury to the brickwork, 
and tiie spring beams could not be removed without damage 
to the external walls and floors of the engine house. The de- 
fendants took out the holding-down plates and removed the 
two cylinders, the beam carriages and the beam of the engine, 
and all the gear, machinery and metallic parts of the engine; 
they also took away the spring beams. In detaching the 
cylinders and the beam carriages they disturbed and injured the 
brick work of the lever wall and pulled down a portion ot tlie ex- 
ternal wall of the engine house in removing the spring beams 
and getting out the blowing cylinder and the engine beam. 

[The arbitrator then went on to describe the water regulator, 
the dry regulator, the hot air apparatus, the hoops and bearers 
of the furnaces, the refineries, the cupola and the puddling 
furnaces. 

[The arbitrator then stated that the blast furnaces, refineries, 
cupola, puddling furnaces and mill furnaces are all of them 



362 Lease. 

erections requisite and necessary for the iron trade, and tlie 
makina: of iron and the smelting of iron ore, and the manufac- 
turing of iron, and iron works would not be complete, and tlie 
process of manufacturing iron could not be carried on with- 
out tliem. 

[He then described the forge engine and mill engine, the 
foundation of the forge hammer and shears, the frames of the 
mill wheels and frames and bed plates of tiie rolls, the cast 
iron columns supporting the roof of the mill and the gasometer. 

The arbitrator then stated that all of these buildings had 
foundations let into the ground, and were erected as conven- 
iences to the defendants' iron works.] 

The whole of the above buildings were removed by the de- 
fendants, and the value of the whole is £112 3s. 

There has also been abreacli by the defendants of tlieir cov- 
enant to keep the furnaces, iron works and dwelling houses in 
repair, beyond what may have been occasioned by the remov- 
al of the articles above enuinerated, and the defendants have 
not been prevented from performing their covenant, so far 
as relates to the repairs of the said furnaces, iron works and 
dwelling houses, by reason of the matters and the things by 
them alleged in their third plea to the said breach. But the 
plaintiffs, during the lease, mined and got coals under certain 
closes of land belonging to the plaintiffs, adjoining to the 
close of land on which the said furnaces and iron works and 
dwelling houses were erected, and by so doing irfjured certain 
of the buildings forming part of the said iron works, and 
certain of the houses of the workmen, but such mining, and 
all injury from the same, had ceased long before the expira- 
tion of the lease. After the expiration of the lease, the 
plaintiffs again commenced getting the coal lying undeitteatli 
the said closes of land and in so doing greatly injured the 
said furnaces, iron works and buildings, after the expiration 
of the lease. But the plaintiffs have sustained damage by 
reason of the breach by the defendants of their covenant to 
keep the furnaces, iron works and dwelling houses in repair, 
beyond what has been occasioned by the removal of the said 
articles, and exclusive of all injury occasioned to the said 
buildings, or any of them, by reason of mining by the 
plaintiffs, which amounts to the sum of £280 16s. M. 



Foley v. Addenbeooke. 363 

Tlie questions for the opinion of the court are: First, 
whether there lias been any breach by tlie defendants of their 
covenant to carry on and effectually woi-k the said furnaces 
and iron works. 

And if the court shall be of opinion that there has been a 
breach of that covenant, then, whether the plaintiffs liave sus- 
tained more than nominal damages by reason thereof, and if 
the court shall be of opinion that the plaintiffs have sustained 
more than nominal damages, then their damages in respect of 
such breach are to be considered as assessed at the sum of 
£117. 

Secondly, whether the defendants are entitled to remove 
all or any, and, if any, which, of the articles above enumerated 
and described. 

The court to direct a verdict to be entered on the several is- 
sues joined in the cause. 

The plaintiffs' points were as follows: The plaintiffs mean 
to contend, that, according to the findings of the special case 
and the true construction of the documents therein mentioned, 
they are entitled to have a verdict entered for them upon all 
the issues, with the damages respectively applicable to each, 
as ascertained by. the case. 

They will also contend that, not only has there been a 
breach by the defendants of their covenant to carry on and 
effectually work the said furnaces and ironworks, but 
that tiie damages occasioned thereby to the plaintiffs are 
substantial, and ought to be assessed at the sum of £117. 

They will also contend that the defendants were not enti- 
tled to remove any of the articles enumerated in the case; 
that the damages thereby occasioned to the. plaintiffs are sub- 
stantial, and ought to be assessed according to the value of 
the respective articles, and the injuries occasioned by the 
wrongful removal thereof by the defendants; and they will 
also contend, if the court should be of opinion that any of 
the said articles were not wrongfully removed by the defend- 
ants, that the manner of the removal of such articles and of all 
the articles by the defendants occasioned substantial damage 
to the plaintiffs. 

The defendants' points were, that the facts stated on the 
case show that they are entitled to a verdict on the second 



364 Lease, 

and third pleas, for that tlie case finds a defi ciency of coal, be- 
inir iiucessary materials within the meaning of plea 2, and 
that tiie ironstone was not of sufficient quality within the niean- 
inw of plea 3. 

And the defendants will contend that, if there have been 
any breach of the covenant to which those pleas are pleaded, 
the damages resnlting from it are but nominal, since the only 
damage the plaintiffs could sustain by the furnaces ceasing to 
work was a loss of a market for their coal or the loss of tl.o 
royalties upon the ironstone; but they have refused to supply 
the former, 'and have received the rent stipulated as a com- 
pensation for the latter. 

And the defendants will contend that all the articles enu- 
merated and valued are removable at common law, as between 
landlord and tenant, and that there is nothing in the lease to 
control the application of the common law, as above stated j 
to them, but that, on the contrary, the lease expressly autliorizes 
their removal. And the defendants will contend that ha,ving 
a riglit to remove them they had a riglit to disturb as much 
of tlie brick work as was necessary for that purpose, and that 
if any excess was committed it ought to have been new as- 
signed in answer to the iifth plea. 

Tiie case was argued in Easter term last by Whatelkt for 
the plaintiffs, and by Eklk for the defendants; the court took 
time to consider, and tlieir iudginent was now delivered by 
Pollock, C. B. 

This action was brought for the breach of the covenants 
contained in a lease of ironstone mines, and the first breach 
was for not effectually working them. The pleas to that 
breach were, first, that the furnaces and ironworks were ef- 
fectually worked without intermission or loss of time. The 
second was, that the defendants were prevented by necessary 
repairs and unavoidable accident from working the mines. 
The third was, that the ironstone got and raised was not suf- 
ficient in quantity and quality to make good common pig 
iron. Tiiere was a second breach in not raising 3,120 blooms 
of ironstone, or paying the sum of £468 per annum, and npon 
that breach money was paid into court according to tlie rate 
of payment claimed and for the time for which it was claimed, 
and that money has been taken out by the plaintitts in satis- 



Foley v. Addenbeooke. 3G5 

faction of that breach. That breach, therefore, is gone. The 
third breach was in not repairing and leaving in repairs. 
The pleas to that were, first, that everjtliing was left in repair, 
other than and except certain matters which the defendants 
had a right to take away. The second was, that what was 
done was done in execution of the lease: that was traversed. 
The third was, that the plaintiifs hindered the defendants; 
and the fourth, that the plaintiffs undermined the ground; 
to those pleas there was a replication de injuria. The arbi- 
trator has a variety of facts very simple upon his award; and 
the court is called upon to direct in what manner the issues 
shall be entered, and further, to say upon which of the various 
items, very considerable in number, the plaintifl's are entitled 
to recover from the defendants. 

With respect to the manner of entering the issues, it ap- 
pears to us,. that upon the first plea to the first breach, indeed 
upon all the issues joined, the verdict is to be entered for the 
plaintiffs. 

It is clearly found by the arbitrator that the furnaces were 
not eifectnally worked; in fact the}' were stopped for the last 
six months before the lease expired. 

With respect to the second plea, that the defendants were 
prevented by necessary repairs and unavoidable accident, and 
by reason of the want of necessary materials, from working 
the mines, the arbitrator expressly finds that there is no foun- 
dation for that plea. 

With respect to the third, that the supply of ironstone was not 
sufficient in quantity or quality, there is no doubt that it was 
sufficient in quantity; and the question turns upon this: 
whether the quality of the iron was, within the meaning of 
the lease, sufficient to rardce good pig iron. Now upon this 
point it will be necessary to refer to the condition of one of 
the clauses in the lease: "And shall and will from time to 
time, and at all times during the said term hereby demised, 
carry on and effectually work the said furnace and^ ironworks 
and second furnace, as the case may be, without intermission 
or loss of time, save only for such time and times as there 
shall be an absolute necessity for stopping or discontinuing 
the said furnace and ironworks for repairs or alterations, or 
from any other unavoidable accident that may happen to the 



366 Lease. 

same, or the want of supply of necessary materials for carry- 
ing on the same; or in case the ironstone be got and raised 
by the said J. A. Addenbrooke, his executors, administrators, 
or assigns, from and out of the lands and grounds of the said 
Edward Foley and Eliza Maria Foley, his wife, and Mary 
Whitby, as hereinbefore mentioned, shall be insufficient in 
quantity to supply the said furnaces or iron works, or will not 
by itself or with a proper mixture and process in tlie smelting 
or -manufacturing thereof make good common pig iron." 
That is the clause in the lease upon which the verdict turns 
with respect to the third issue; and it appears to us that it 
was not necessary that the proper mixture for the purpose of 
smelting or manufacturing iron sliould be found upon the 
premises demised to the defendants, but was to be procured 
by tliem as some of the articles to be used in their trade as 
manufacturers of iron; and, in accordance with that, it appears 
that the parties had so dealt with the covenant themselves 
for a considerable number of years, while the lease was in 
operation. I am now stating merely in what manner the 
verdict is to be entered. I will come to the damages pres 
ently. 

To the third breach, for not repairing and leaving in re- 
])air, the pleas were, first, that everything was left in repair 
other than the articles that were allowed to be taken away. 
It is quite clear upon the award that there were other matters 
as to which the premises were not left in proper repair, and 
therefore that issue must be found for the plaintiffs. 

With respect to the second, that what was done was done 
in the execution of the lease, certainly ranch was done in the 
execution of the lease, but something was done which was not 
in execution of the lease. 

With respect to the third, that the plaintiffs hindered tlio 
defendant, or that the plaintiffs undermined, we tliink that, 
those pleas are not sufficient, and that the issues upon those 
pleas must be enter^jd for the plaintiffs. 

Then I come to the question of damages. Now, with re- 
spect to the first breach, that the furnaces were not worked, the. 
arbitrator has found contingent damages, amounting to £117; 
but it appears to us that, although the verdict upon that issue 
must be for the plaintiffs, the damages will be merely nominal 



Foley v. Addenbrooke. 367 

for that the plaintiffs are restrained by the clause in the lease 
from recovering upon the first breach any damages which 
they seek to obtain npon the second breach, which damages 
have been paid into court upon that breach, and taken out by 
the plaintiffs in satisfaction. The clause is this: " There is to 
be paid and paj-able the sum of 3s. for every bloom of iron- 
stone, and so in proportion for any greater or less quantity 
than a bloom, which the said J. A. Addenbrooke shall from 
time to time raise, or get out of the said lands or mines." So 
that if more blooms are procured, they are to be paid for. 
" And, also, that tlie said J. A. Addenbrooke, his executors, 
administrators or assigns, shall and will quarterly, and each 
and every quarter of a year daring the continuance of this de- 
mise, raise and get from and out of the said mines hereby de- 
mised, or intended so to be, if there to be found, not less than 
780 blooms of ironstone, and as much more quarterly and an- 
nually as the said furnaces and works shall or may use or con- 
sume, or otherwise shall and will well and truly pay or cause 
to be paid to the said Edward Foley and Eliza Maria Foley, 
his wife, and Mary Whitby, and their heirs and assigns, the sum 
of £468 by way of rent." So that the rent of £468 is the al- 
ternative, not only to getting a quantity which would amount 
to that rent, but it is the alternative to getting that or any 
greater amount. It appears to us, therefore, to be very clear 
that the verdict upon that first breach is to be entered for nom- 
inal damages only. 

With respect to the third breach, it appears to us that it is 
hardly necessary to do more than- advert to the terms of the 
covenant upon which this arises. There is a covenant to re- 
pair, excepting the iron work, castings, railways, gins, wimseys, 
machines, and movable implements, and materials used in or 
about the said furnaces, fire engines, iron works, stone pits 
and premises. And there is a power on the part of the lessors, 
or those who represent them, on notice given at a certain 
period before the expiration of the lease, to purchase those ar- 
ticles. It appears that tliey declined purchasing them, in con- 
sequence of which the defendants stopped the works, and re- 
moved a very large number of the articles; and the question 
is, what damages they are to pay in respect of the articles, 
some of which they had a clear right to remove, others which 



368 Lease. 

thej liaJ no ri^ht to reiriove. If the parties find any difficulty 
in applying the rule, that will be laid down by the court, or if 
the arbitrator finds any difficulty in applying the rule, the 
court will give such assistsnice as may be necessary to en- 
able him to come to a satisfactory settlement. The rule which 
the court thinks the correct one to act upon is this: that what- 
ever was in the nature of a machine, or part of a machine, as 
iron work or iron castings, or railways, gins, or movable im- 
plements or materials, the defendants had a right to remove; 
that whatever was in the nature of bnilding or support of 
buildings, although made of iron, the defendants had not a 
right to remove; that, with respect to damage to the brick 
work, which constitutes a considerable portion of the claim 
made by the plaintiflt", the defendants were not bound to restore 
the brick work in a perfect state, as if the article that it was 
intended to protect, or support, or cover, were there. It was 
sufficient for the defendants to exercise their right to remove 
what the lease gave them authority to remove; and in doing 
so, to remove the brick work and to leave it, in such a state as 
would be most useful and beneficial to the lessors, or to those 
who might next take the premises. Now, subject to that rule, 
perhaps it may be necessary just shortly to mention the items, 
and dispose of them according to that rule. 

The first item is that of boilers, ^180; clearly the plaintiffs 
have no right to retain them, or to seek for damages for re- 
moving them. So with respect to the value of the boiler 
grates, £50, and the value of the castings and iron work of 
the engine and regulator; £970, and of the spring beams, 
£14. 

The next item is, the damage sustained by the plaintifl^s by 
reason of the retrieval of the articles, if the court shall be of 
opinion that the defendants had no right to remove them in 
the manner described; If that damage means damage to brick 
work connected with the boiler, the boiler grates and the iron 
work, and castings of the engine and regulator, we think the 
plaintiff's have no right to recover that sum. 

But, from the language used by the arbitrator, it may be 
that some part of it is recoverable, because, although, upon 
the facts stated, we think the defendants had a right to remove 
them, the statement is coupled further with this, that they 



Foley v. Addenbrooke. 369 

had no right to remove them in the manner described. Now 
the manner is not described with sutBcient accnraoy to en- 
able us to come to a distinct conclusion, whether the plaint- 
iffs are entitled to any damages or not. The only rule we can 
lay down is, that these lessees had a right to remove them, 
doing as little damage as possible, and leaving the premises 
in a state fit to be used for a similar purpose by another 
tenant. 

The valne of the brick work of the hot-air apparatus is £47. 
That is subject to j^ist the same remark. It does not appear 
with sufficient distinctness before us what was the state of the 
brick work, or how it was left, so as to be the subject of com- 
plaint. If the brick work was merely disturbed for the pur- 
pose of taking the hot-air apparatus, which the defendant had 
a right to take, and, being so disturbed, it was left in a condi- 
tion fit and convenient for the restoration of another liot-air 
apparatus by another tenant, then we think no damages ought 
to be recovered. 

The next item is the value of the piping, £321; we think 
the defendants entitled to remove them. 

The next is the damage done to the furnaces by removal of 
the hoops, bearers and brickstaffs, inclusive of the value of 
the same, £53 13s. lOd.; we think the plaintiffs were clearly 
entitled to recover that amount, those articles not being iron 
work in the nature of machines or implements, but being 
iron work substituted for additional brick work, with a view to 
give additional and probably necessary strength to the fur- 
nace, which the defi^ndants had no right to remove or deteri- 
orate. 

The next four items are the value of the cupola, the value 
of the blast-pipes which worked it, the value of two refiner- 
ies, and of the blast-pipes which worked them — being £9, 
£4 16s., £69, and £9 17s. 9d. We think the defendants had 
a right to remove them. 

Then eleven puddling furnaces, £385; four mill- furnaces, 
£140. Those appear to have been precisely of the same nat- 
ure with the fire-engines and the other matters of iron used 
in the course of the work, which the defendants had a right 
to remove. 

Then the next is the value of the boilers of the forge en- 
voL. VIII — 24. 



370 Lease. 

gine, the value of the grates of the boilers, the value of the 
castings and iron work of tlie forge engine, the value of the 
boilers of the mill engine, the value of the grates of the boil- 
ers, and the value of the castings and iron vi^ork of tlie mill 
engine. As to the boilers of the forge engine and the boilers 
of the mill engine, those, I observe, veere already' struck oi:t 
before this paper was han(Jed up to the court. As to tliose 
six items, the sums of which are £110, £40, £290, £60, £30, 
and £151, we are of the opinion that all those the defendants 
were entitled to remove, under the clauses in the lease. 

Then there is the damage sustained by the plaintiffs by the 
removal of the said engines, £134 4s., which is open to tlie 
same remark as that which I have already made with respect 
to one or two other items — that, if the damage was really the 
removing the brick work and taking the iron away, leaving 
the brick work in the most convenient condition for the res- 
toration of similar works for the use of another tenant, then 
we think no damage ought to be given; if there was anything 
beyond that, the parties must either settle it among them- 
selves, or, with the assistance of the arbitrator, ascertain what 
that damage was. 

Then there is the value of oak taken from the forge ham- 
mer foundation, £7 4s.; that we think the plaintiifs entitled 
to recover. 

Then the damage sustained by the plaintiifs by the removal 
of the plates from the sliears foundation, including the value 
of the plates and pins, £35 4s. 2d.; we regret to find the value 
of the plates mixed up with the damages sustained by the re- 
moval of them; for tlie plates themselves, it appears to us, 
the defendants had a right to remove, and the arbitrator must 
separate that finding into two y.>arts. The plaintiff will be en- 
titled to recover damages, if any, in respect of the improper 
removal, but the plates themselves we think the defendants 
had a right to remove. 

Then, vvith respect to the holding-down pins, and the bed 
plates, two items of £36 5s., and £64 7s. 3d, we are of the 
opinion that the defendants were entitled to remove them, and 
that the plaintiffs are not entitled to any damages on that 
head. 

Then, there is damage done to tlie bi'iok work, £14; that is 



Marquis op Bute v. Thompson et al. 371 

subject to the same remark as that which I have already 
made. 

Then there is the value of the cast iron columns, £li 8s. 
Those were columns used for the support of the building. 
With respect to those, we are of opinion that the columns 
used for the support of the building are not within the excep- 
tion in the lease, and that the plaintiffs are entitled to recover 
damages for the removal of them. The 'value of the gasom- 
eter and apparatus, £110, we think the plaintiffs are not enti- 
tled to. The brick pillars, and damage done to' the tank, £5, 
is subject again to the same remark. If any unnecessary and 
wanton damage has Iseen done, and the premises have been 
left in such a state as not to be conveniently applicable to the 
same purpose, to that extent the plaintiffs would be entitled 
to recover damages. The value of the buildings removed, 
£112 35., we think the plaintiffs are entitled to recover. 

On the general breach of repairs, £280 16s. 8i., of course 
tlie plaintiffs are entitled to recover. 

The last item is £117, which, for the reasons already given, 
we think the plaintiffs should not recover, but the damages 
upon the first breach must be limited to nominal damages. 

We think tliat, with this expression of our opinion, the par- 
ties will be able to arrange themselves, or with the assistance 
of the arbitrator, the precise amounts of damage. The ma- 
terials before the court are not sufficient to enable us to come 
to a precise amount. All we can do is to point out how the 
issues are to be entered, and to lay down such rules as wiJll 
probably enable the parties to say precisely what are the 
amounts for which the verdict ought to be entered. 

Judgment, accordingly. 



Maequis of Bute v. Thompson et al. 

(13 Meeson & Welsby, 487. Court of Exchequer, 1844 ) 

' Mine exhanstcd under covenant to raise fixed annual amonnt. The 

Narr. alleged that plaintiff let his interest in a coal mine to defendants, 

> Smith V. Morris, 8 M. R. 317. 



372 Lease. 

who covenanted to raise and work 13,000 tons of coal in each year, and 
pay at the rate of eight pence per ton royalty for the same, or pay that 
amount of money, to wit, £43!J 6«. 8d., as fixed rent, whether the coal 
should be got or not; and also nine pence per ton for all coals beyond 
the 13,000 tons. Breach — that defendants had not raised 13,000 tons 
in each year and paid at the rate of eight pence per ton for the same, 
nor the iixed rent. Plea — after setting out the indenture on oyer that 
by the fair and proper working and getting of the coal, the same, be- 
fore and at the commencement of the said half year, was gi-eatly ex- 
hausted; and a small portion thereof only, being less than a fourth part 
of such 13,000 tons, was left and remaining to be worked and raised. 
Held, on demurrei',* that this was an absolute covenant by the defend- 
ants that they would raise 13,000 tons of coal yearly; or, if not, that 
they would pay the fixed rent, and that there was no implied condition 
that there existed coats to the amount of 13,000 tons yearly capable of 
being worked. 2. . That the breach was well assigned. 

Covenant. — The declaration stated that by an indenture, 
dated the 24th of March, 1842, made between the plaintiff, of 
the one part, and the defendants, of the other part, reciting 
that, by an agreement of the 23d of April, 1824, one Edward 
Davis agreed to let to the plaintiff all his right and interest in 
the coals and other minerals (ironstone excepted) in the 
Pwlly-Wheale estate, in the parish of Merthyr, in the county 
of Glamorgan, in as ample a manner as the same were demised 
to Davis, It was witnessed that the plaintiff thereby demised 
and let to the defendants all his right and interest in the coals 
and other minerals in, upon and under the said estate, in as 
ample a manner as the same were demised to him, the plaint- 
iff, by Davis, from the 25th day of March, 1827, for the term 
of fifty years wanting ten days, yielding and paying yearly, 
for every ton of coal that should be worked, raised, or got by 
the defendants in each year, not exceeding in the whole 13,000 
tons in any one year, the sum of 8^. per ton, or yielding or 
paying that amount of money, namely, the sum of £433 €». 
8d. each year, as fixed rent, wlietlier the coal should be worked 
or not; such royalty or rent' to be paid and payable by four 
equal quarterly payments, that is to say, upon, etc.; that the 
defendants covenanted that they would raise and work 13,000 
tons of coals in each year during the said term, and pay at the 
rate of 8^. per ton royalty for tlie same, or pay that amount of 
money, namely, £433 6s. 8d., each year, as iixed rent, whether 
the coals should be wrought or not; and also 9d. for each ton 



Makquis op Bute v. Thompson. 373 

over and above that quantity, to whatsoever extent the same 
might be wrought. Breach, that the defendants had not raised 
or worked 13,000 tons of coal in each year during the said 
term, and paid at the rate of Sd. per ton for the same, or paid 
that amount of money, namely, £433 6s. Qd. each year as fixed 
rent, whether the coals were wrought or not, but on thfe con- 
trary thereof, to wit, on, etc., a large sum of money, to wit, 
£216 13s. 4fl5. of the said rent, for one half year of the said 
term, became, and was, and still Is in arrear and unpaid to the 
plaintiff. 

The defendants in their plea craved oyer of the indenture 
of lease, and set it out in full. The reddendum was as fol- 
lows: 

'' Yielding and paying yearly and every year during the 
said term, unto the said Marquis of Bute, his executors, 
etc., for every ton of coal that shall be worked, raised or got 
by the said W. Thompson and T. S. Forman, their executors, 
etc., in each and every year, not exceeding in the whole 13,000 
tons in any one year, the sum of 8^. per ton, or yielding 
and paying that amount of money, namely, the sum of £433, 
6s. 8c?., in each year, as fixed rent, whether the coals shall be 
worked or not, such royalty or rent to be paid and payable by 
four equal quarterly payments, etc.; and, further, yielding 
and paying yearly and every year, during the said term, 
hereby granted unto the said Marquis of Bute, etc., for every 
ton of coals that shall be worked, raised or got by the said 
W. Thompson and T. S. Forman, in each and every year, over 
and above the quantity of 13,000 tons, the sum of 2d. per 
ton; and also yielding and paying yearly unto the said Mar- 
quis of Bute for every ton of stones, sand and fire-clay hereby 
demised, which shall be worked, raised and actually used, and 
not otherwise, from or under the said farm and lands, such 
price as the said marquis shall for the time being charge and 
receive for every ton of stones, sand or fire-clay belonging to 
iiim, the said marquis, and let by him or permitted to be got 
out of any of his land within the parish of Merthyr, aforesaid, 
or the neighborhood." 

Then followed a covenant by the defendants that they 
would raise and work 13,000 tons of coals in each year, and 
pay at the rate of Sd. per ton royalty for the same, or pay 



374 Lease. 

that amount of mone-y, namely, £433 6s. 8^^., each year, as 
fixed rent, whether the coals should be wrought or not, and 
also 9d. for each ton over and above that quantity, to what- 
ever extent the same might be wrought; and also pay to the 
said marquis, his executors, etc., for every ton of stones, sand 
and fife-clay which should, by virtue of those presents, be 
raised, worked and used by said defendants, etc. The de- 
fendants then pleaded, as to the alleged breach of covenant in 
the declaration relating to the non-payment of half a year's 
rent, that in and by the fair and proper working, etc., of the 
said coal, the same became and was, before and at the com- 
mencement of the said half year, greatly exhausted, and that 
before and at the commencement of the said half year, a 
small and inconsiderable portion thereof only, the same being 
less than one fourth part of such 13,000 tons, and no more, 
was left and remained to be worked, etc., under and by virtue 
of the said indenture; and that the defendants have always 
worked, raised and got the said coal, with due care, diligence 
and dispatch, and still continue to do so with all possible and 
practicable care and dispatch. — Veeification. 

Demukeee and Joindee. — The point marked for argument 
on the part of the plaintiff was, that the covenant was an ab- 
solute covenant to pay the money rent, and not a conditional 
covenant. 

The case was argued in the last Trinity term (May 29) by 
Eele, for the plaintiff. The main question in this case is, 
whether the covenant for payment of the fixed rent was con- 
ditional on the fact of coals being raised sufficient to pay the 
sum of £433 6«. 8d. after the rate of 8d. per ton. The defend- 
ants contend that, if the colliery be exhausted, so that coals 
sufficient to make up that amount can not be raised, they are 
discharged from the payment of the fixed rent. If that view 
of the case be correct, the declaration would, perhaps, be bad, 
for not averring that such an amount of coals was raised. But 
such is not the true construction of the lease. Even if it were a 
demise of the coals only, v^ith these covenants, and the coal 
failed altogether, the rent would nevei'theless remain due; but 
at all events that is clearly so here, where it is a demise of 
other minerals also, which are part of the consideration for the 
entire rent. The terms of the covenant are express, to pay 



Maequis of Bute v. Thompson. 376 

£433 6s. 8d. for each year " as fixed rent, whether the coals 
shall be worked or not." In Bex v. Farrott, 5 T. E. 593, the 
lessee of a coal mine was held to be ratable in respect of it to 
the relief of the poor, although he worked it at a loss after pay- 
ing the rent. The court would not inquire whether tlie tenant 
had niade an unprofitable bar(i;ain. In Hex v. Jiedworth,S 
East, 387, indeed, he was held to be Excused from liability to 
be rated to the poor, where the mine, having become, unpro- 
ductive, had ceased to be worked; but it was assumed that he 
continued liable on his covenant for the payment of rent. 
Lord Ellenborough says: "The failure of the coal will not 
discharge tlie lessee's covenant to pay rent. Perhaps he may 
liave calculated on that event, and may have received, during 
the former part of his term, an adequate value from the then 
produce of the mine to compensate the continuance of the 
rent to the end of the term." Tiiis is in the nature of a sale 
and purcliase of the whole-interest in the mines, the purchase 
money being paid by an annuity for a term of fifty years, and 
that whether tiie coals be worked or not. The thing demised 
has passed to the lessee, and therefore the rent must be paid, 
although the value of it be gone. But, secondly, this is 
a demise, also, of all other minerals upon the estate, except 
ironstone; that interest is in the defendants, and non constat, 
upon this record, that they are not working under the demise, 
.other mines, and raising from tliem minerals more than suffi- 
cient to satisfy this rent. 

Kelly, for the defendants. — The words of the reddendum 
in Sex v. Bedworth were stronger than here. There the les- 
see was to pay during the term " the clear j'early rent of £200 
at least, and in all events, whatsoever the state of the mines 
might at any time be and whether any of the coal, etc., should 
be gotten or not." Here the terms are, " Yielding and pay- 
ing, yearly and every year, for every ton of coal that shall be 
worked, raised or got in each and every year, not exceeding 
in the whole 13,000 tons in any one year, the sum of %d. per 
ton, or yielding and paying that amount of money, namely, the 
sum £433 <os. M. each year as fixed rent, whether the coals 
shall be worked or not." It is a reddendum in respect ohjiy 
of the coal worked, raised or got. What is meant is, that the 



376 Lease. 

lessees shall, during the term, work and raise 13,000 tons of 
coal, at least, per annum, for which they shall pay a royalty at 
the rate of 8i. per ton, and the object is to compel them to 
work to that extent, for which purpose they are alternately 
bound to pay the same sum as fixed rent, whether they work 
or not. It is no more than a covenant that they shall work to 
tlie extent of 13,000 tons yearly, and that, whether they do so 
or not, they shall pay rent on that amount; but the existence 
of coals, to be worked and paid for, is a condition precedent 
to the attaching of the rent. If the intention of the parties 
had been as is contended for on tlie other side, why did they 
not employ the same words as in Hex v. BedvioHh, " what- 
ever the state of the mines may be1 " The words " whether 
the coals shall be worked or not," are capable of a reasonable 
interpretation as laying the lessees under an obligation not 
to neglect the working of the mines. They are words of 
qualification, not woi"ds binding the lessees to an absolute 
payment of the rent at all events, and are introduced merely 
as a means of giving effect to the former covenant, that they 
will raise and work 13,000 tons a year. That covenant im- 
ports tliat there shall be coals to be worked and raised; and 
so also the reddendum is, not for the enjoyment of the land, 
or the right to dig and take the profits of the mine, but a 
reservation in respect of the coals worked and raised; and if 
there be no coals to work or raise, there is no liability to 
the rent reserved. With respect to the argument that this is 
a demise also of other minerals, the answer is, that through- 
out the lease, all the payments are reserved separately in re- 
spect of the coals and of the other minerals. As far as this 
question is concerned, it is a lease of the coals only. 

Secondly, the breach is insufficient. The general allegation 
" that the defendants have not worked or raised 13,000 tons 
of coal in each year during the term, and paid at the rate of 
Bd. per ton for the same, or paid that amount of money, 
namely, £433 &s. %d. each year as fixed rent," is controlled 
by the following words: " but on the contrary thereof," and 
limited thereby to that which follows, and which alone con- 
stitutes the breach, viz., tiiat £216 13«. 4id. " of the said rent" 
is in arrear: Harris v. Mantle, 3 T. R. 307. 

There is no breach, therefore, as to the royalty, and conse- 



Makqtjis of Bute v. Thompson. 377 

quently, unless in all events a money rent were payable, there 
is no sufficient breach. It is like the reservation in old leases 
of a hawk or capon, and a breach that a capon was not ren- 
dered. It is not sufficiently stated, being in the alternative. 

[Pollock, C. B. — The case of Harris v. Mantle does not 
bear you out. 

There the breach assigned was that the defendant had not 
used the farm in a husbandlike manner, but, on the contrary, 
had committed waste. Here it is expressly stated that the 
defendants have not done either the one thing or the other — 
either worked the 13,000 tons or paid the royalty, or paid the 
rent] 

Ekle, in reply.: — The meaning of the parties was clearly 
this: up to 13,000 tons of the payment shall be %d. per ton;" 
for all above tliat amount 9<^.; 13,000 is the probable average; 
if it falls below that amount the lessees may pay a money 
rent; but at all events they shall pay for the subject-matter 
of demise not less than £433 6s. 8d It is altogether differ- 
ent from a demise of the surface, because here the, subject- 
matter of the demise is destroyed in the course of working, 
and it must have been so contemplated by the parties. It is, 
t'lerefore, in tlie nature of a sale and purchase of the subject- 
matter of tlie demise for the rent. 

Cur. adv. vult. 

On the sixth of July last the court intimated that their 
judgment was in favor of the plaintiff; and now Pollock, 
C. B. said: 

This case was decided some time ago. "We have been asked 
for the reasons of onr judgment, which was that the plaintiff 
was entitled to recover. The foundation of the opinion of 
the court i»extremely short. This is an action of covenant; 
the defendants have expressly covenanted that they, their 
execiitu-s, administrators and assigns, or some or one of them, 
should and would raise and work 13,000 tons of coal in each 
and every year during the term, and pay at jhe rate of ScZ. per 
ton royalty for the same, or pay in money annually £433 6«, 
M. each year, as fixed rent, whether coals should be wrought 
or not, and also 9d upon each ton over and above tliat quan- 
tity, to whatever extent the same might be wrought. We 



•">/ 



8 Lease. 



are of opinion that this stipulation for a fixed rent, coupled 
with a covenant that coal should be wrought to that extent, 
and if above it, that there should be a payment o{ 9d. for each 
ton over and above, does not carry with it, by any implica- 
tion, a condition that there shall be coals to that amount 
capable of being wrought. It appears to us to be a stipula- 
tion on the part of the defendants that they would work and 
get tiiat quantity, and that if they did not get it, they would 
pay a fixed rent to the landlord; and we can import into that 
covenant a condition that there should be coale to that extent. 
If that was the intention of the parties they should so have 
expressed it. This is the short ground on which we are of 
opinion that the plaintiff, the Marquis of Bute, is entitled to 
tlie judgment of the court. 

Judgment for the plaintiff . 



John B. Emery and Cyrus Gault v, Cornelius H, 

AND Caleb D. Owings, Administrators 

of Beale Owings. 

(6 Gill, 191. Court of Appeals of Maryland, 1847.) 

' Devise of quarry and its rents. The owner in fee ot land containing a 
stone quarry, having mortgaged and leased the quarry, devised it to his 
son with directions " that the rents arising from the quarry be ap- 
plied to discharge the incumbrances on the same:"//eW, that the rents 
due at the date of testator's decease passed to the son as puree! of the 
devise for the purpose directed, and not to the executors. 

Debt and rent out of same subject-matter. The" direction to apply the 
rents to debts arising out of the subject-matter of the devise compels 
such construction; if the direction had been to pay debts generally it 
would be otherwise. 

Tlie construction of written contracts is not to be submitted to the 
jury, 

Bubble stone not included in lease of the granite. A lease granting the 
right to quarry granite stone made to pai'ties in the business of stone 
cutting: Held, not to carry the right to take the lubble stone. Granite 
stone is a well known article of commerce, sold by the cubic foot. Bub- 
ble stone is sold in mass or by the perch. 

' Oioings V. Emery, 7 Gil', 405. 



Emery v. O wings. 379 

Kent— Damages— Application of payments. Money paid as rent and 
received as such under agreement, can not be applied on an account for 
damages though arising out of the same subject-matter. 

No procedendo when recovery impossible. The court will not issue a 
procedendo upon reversal of judgment, when it is apparent that a set-off 
which must be allowed will exceed the plaintiffs' claim. 

Appeal from Baltimore County Court. 

This was an action of debt, brought by the appellees against 
the appellants, to recover the sum of $750, debt. The plaint- 
iffs counted upon a lease made by Nicholas O wings, deceased, 
to the defendants, of a granite quarry in Baltimore county, 
as owner in fee, dated 11th June, 1840, for the term of six 
years, from the 10th November following. The lessees were 
to quarry forty tliousand cubic feet in each year, and pay one 
and one fourtii cents for eacli cubic foot rent, quarterly, and 
alleged tliat tliey entered upon the demised premises; tliat N. 
O. on the 7th Jnly, 1841, devised the reversion of the leased 
premises to Beale Owings, for hi^ natural life; that on the 
30th December, 1841, N. O. died seized of the reversion. 
The declaration then proceeded to show the amount of rent 
up to the commencement of this action, and the periods at 
which tlie same accrued, etc. 

Tlie defendants pleaded nil debet, with leave to give in evi- 
dence any special matter which might be pleaded in bar of 
the action upon notice, etc. 

1st exception. Upon the trial the plaintiffs proved the 
lease declared upon, for the granite quarries known as the 
Fox Rock or Fox qnarrj^ witli the right of quarrying the 
same in such quantities from time to time as the lessees' co- 
partners may have occasion in tlieir business, or may choose, 
not less than 40 M. cubic feet in each year, during the de- 
mised term, yielding and paying to the lessor, etc. It was 
stipulated in the lease that it should not be construed to im- 
pair or affect the right or interest of, etc., under or by virtue 
of a morto-age theretofore executed by the said lessor, Nicholas 
Owings. 

It was admitted that N. 0. was dead, having iirst duly 
made and published his last will and testament, containing, 
amongst others, the following clause: 



380 Lease. . 

"It is my will and desire, that the rents arising from the 
quarry, known by the name of the Fox Kock quarry, be ap- 
plied to discharge the incumbrances on the same." 

It was also in proof that the Fox Kock quarry was a part 
of the real property which Nicholas Owings devised to bis 
son, Beale Owings, the intestate of the plaintiffs in this action ; 
that Cornelius II. Owings and Francis R. Griffith were ap- 
pointed executors by the will of Nicholas Owings, and Bealo 
Owings was in possession of the lands and premises devised 
to him; and that the defendants were in possession of the 
quarries and demised premises in 1841, 1842 and 1843. Beale 
Owings died on tiie 26th July, 1844, intestate, and that letters 
were granted to the appellees on bis estate. 

The defendants, after notice to the plaintiffs, and to show 
that the plaintiffs had no right to any of the rent claimed, 
which fell due after the 10th August, 1842, proved an assign- 
ment of the quarry from B. O. to Edward Green, dated 7th 
Oct. 1842, 

Tiie defendants further 'gave in evidence by Matthew G. 
Emery, that he was ernp!o.yed in cutting stone at tlie Fox 
Rock quarry, in the year 1840; that in the summer of the 
year after, Noah Wortbington bad torn up the railroad run- 
ning across his land (l)eing a part of the railroad leading 
from the said quarry to the Baltimore & Ohio Road), and 
before said railroad, thus torn up, bad been laid down again 
-being on a visit at the house of Nicholas Owings — had 
a, conversation with him respecting the said railroad that 
had been torn np, and as to the prospect of its being laid 
down again; that in this conversation N. O. said that he was 
very sorry it bad been torn up, and that be did not know what 
he should do to get it put down again, as he had no money to 
pay to Noah Worthington the sum he demanded, that is, 
$866, the amount be had expended in law suits about said 
road, and that he, Nicholas, did not know what he should do, 
unless Emery & Gault would advance to him that sum; 
that on his next visit to N. O., he, N . 0., said that Emery 
& Gault had advanced to him the said sum of $866, to be 
taken out in rent of said quarry; and that he, N. O., had sent 
the money over to Mr. Worthington, and that in consequence 
of said advance, he, the said Nicholas, would not receive any- 



Emery v. O wings. 381 

thing for two years, as it would take nearly tliat time to pay 
off said advance. The said witness, then, upon examination by 
plaintiffs, proved the following receipt: 

" Baltimore County, June 5, 1840. 

" Eeceived of Emery & Gault $866, to be returned them in 
granite stone, to the amount of sixty-nine thousand three 
hundred feet, without interest, between tlie 10th Novem- 
ber, 1840, and the 10th November, 1846, they being at the 
expense of quarrying and transporting the same from my 
quarry, known as the Fox Eock quarry. 

Nicholas Owings." 

The defendants further gave in evidence by Matthew G. 
Emery, that he was present when Gault, one of the defend- 
ants, paid to said N. O. the sum of $101.85, and that the fol- 
lowing receipt was given therefor: 

"Eec'd, Bait. County, Feb. 19th, 1841, of Emery & 
Gault, $101.85, oh account of quarry rent. 

" ISTlCHOI-AS OwiNGS." 

The defendants also proved the following receipt: 

" Eec'd, Balto., Octo. 13th, 1841, of M. G. Emery, for E. 
N. Gault, $20, on account of Nicholas Owings. 

" C. H. OwiNGS." 

That he, the witness, did not pay the sum of $20 on 
account of rent dne, but on account of rent to become dne. 
It was to go on account of the lease. The plaintiffs gave 
proof to rebnt the parol evidence offered by the defendants, 
as to the application of the money advanced by them to 
Nicholas Owings, as an offset to the rent claimed in this ac- 
tion,, and that it was paid on a different account. 

The plaintiffs* further gave in evidence, by Peter Gorman, 
a competent witness, duly sworn, that he knows the Fox 
Eock quarry, and knows what is called rubble stone. There 
is a large amount of that kind of stone, including offal and dirt, 
at the Fox Eock quarry, that has been accumulating since the 
quarry was opened; that dimension stone are used in building 
warehouses and for columns, etc. The dimension stone are 
the main object in opening a quarry; they are worth from 40 
to 50 cents per cubic foot in Baltimore; that rubble stone, if 
a man wants it, is worth from 50 to 75 cents, perhaps one dol- 
lar per perch; that the witness, witlun five years past, received 



382 Lease. 

from the Fox Eock quarry a few car loads of rubble stone 
which he used in building a house; that he purchased them 
of Emery & Gault, wlio delivered thera on cars, near to tlie 
house of the witness; that he paid one dollar a car load, each 
containing about a percli and a half, equal to about thirty- 
seven cubic feet. There has been a good deal of rubble stone 
used in constructing the Baltimore & Ohio Railroad. Don't 
know of any other sale or use by Emery & Gault of rubble 
stone from the Fox Rock quarry, except what he, the witness, 
took; that there is at the Fox Rock quarry an immense heap 
of offal stone and rubbish, three fourths of which is sand, and 
good for nothing; that forty thousand feet, or $500 worth, at 
the rate of one cent and a quarter per foot, might be got out 
in a year at the Fox Rock quarrj'. It has always been con- 
sidered that the expense of getting stone from that quarry 
was less than at other quarries. 

The plaintiffs, further to support the issue on their part, 
and to rebut the evidence given on the part of the defendants, 
gave in evidence by William Clary, that he had been a stone 
cutter for three years; that he considers the Fox Rock quarry 
inore advantageous for furnishing stone to the Baltimore 
market by several cents in the foot, than other quarries. There 
is a descent from the quarry to the Baltimore & Ohio Rail- 
road except for the distance of two hundred yards; that he, 
the witness, never knew any custom, at any of the quarries, 
to pay for the rubble stone, neither at Wortliington, wliich 
was worked in 1833, but not since, nor at the Watersville 
Fox Rock or Meadow Field quarry. 

The plaintiffs and defendants offered testimony in relation 
to the value of dimension and rubble stone; the comparative 
facility of procuring thera at the leased quarry; the facilities 
for transporting them to market, — which proofs are not 
deemed material to be published. 

The defendants then prayed the direction of the court to the 
jury: 

1. "That under the will of Nicholas Owings the rents of 
the Fox Rock quarry did not pass to Beale Owings, the 
plaintiff intestate, and that the plaintiffs are therefore not en- 
titled to recover in this action," which direction tlie court 
(PoEviANCE and Le Gkand, A. J.,) refused to give. 



Emeky v. Owings. 383 

2. " That if the jury find from the evidence that the receipt 
oifered in evidence by the plaintiffs, of the 5th June, 1840, 
was given by N. 0. under an agreement that the same should 
be applied to tlie payment of rents thereafter to become due 
from the defendants to said E"icholas Owings from the Fox 
Rock quarry, under the lease of the 11th June, 1840, and that 
the sum of $866 has not been returned to said defendants by 
the said Nicholas Owings, to those claiming under him, or in 
an-y way satisfied, that then they must allow said receipt, or so 
much thereof as may be now due as an offset to the plaintifis' 
demands;" which instruction the court gave as praj'ed. 

The plaintifis then prayed the following additional instruc- 
tion to the jury, to wit: 

" But if the jury find from the evidence that the defendants 
are chargeable with the rubble or ofi'al stone taken by them 
from said Fox Rock quarry, and. that they have taken out the 
amount of said receipt for $866, in said rubble or ofi'al stone, 
then the said $866 is not to be received in bar of this action. 
Notwithstanding the jury may find that said $866 was agreed 
to be applied to extinguish the I'ents of said quarry," which 
the court granted. 

The defendants excepted to the instruction of the court, as 
well in refusing to grant the defendants' first prayer aforesaid, 
as in granting the additional instruction prayed by the plaint- 
iffs. 

The verdict and judgment of the court below being in favor 
of the plaintiffs, the defendants appealed to this court. 

The cause was argued before Akchbk, C. J., Dorset, Cham- 
bers, Spbnoe, Mageudek and Martin, JJ. 

By HiNKLBT and Nelson, for the appellants, and 

By E. J. Beent, for the appellees. 

Dorset, J., delivered the opinion of this court. 

The defendants, by their first prayer, prayed the opinion of 
the court to the jury: that, under the will of Nicholas Owings, 
the rents of tlie Fox Eock quarry did not pass to Beale Ow- 
ings, the plaintiff intestate, and that the plaintiffs are there- 



384 Lease. 

fore not entitled to recover in tljis action; wliicli opinion and 
direction tlie court refused to give. Whether tlie coiinly 
conrt were riijlit or not in refusing this prayer depends upon 
tlie true construction of that part of t!ie testator's will which 
relates to those rents. After devising to his son, Beale Ow- 
IngB, tlie Fox Kock quarry, out of which the rents issue, the 
will proceeds as follows: 

" And it is my will and desire that the rents arising from 
the quarry known by tlie name of the Fox Rock quarry, be 
applied to discharge the incumbrances on the same." 

This clause of the will, it is insisted, separates the rents 
from the reversion devised to Beale Owings; and by neces- 
sary implication gives them to the executors of the testator. 
If the application of the rents had been directed to the pay- 
ment of the debts of the testator, irrespective of the lands ont 
of which the rents issue, it might have been somewhat dif- 
ficult to repel the implication of a devise of the rents to the 
executors of the testator, because to the executors only is 
confided the ascertainment and payment of the debts of the 
testator. But by this clause in the will the rents are not 
directed to the paj'ment of debts generally, but to the dis- 
charge of the incumbrances on the Fox Kock quarry. To 
whom, then, could the rents more appropriately be given to 
effectuate the design of the testator, than to him to whoui the 
reversion was devised? He was as competent to make the 
application of them, directed by the will, as the executors of 
the testator, and much more deeply interested in their being 
faithfully applied. And further, it is not to be presumed to 
have been the intention of the testator to diminish the means 
of collecting the rents, and the certainty of their application 
to the object by him enjoined, which certainly would be the 
result of the implication contended for. Had the testator, by 
his will, have separated the rents from the reversion, and 
given them to his executors, the only means of their recovery 
would have been by an action of debt; but if suffered to pass 
to the devisee, according to the legal import of the devise, 
the rents could be recovered not only by an action of debt, 
but by distress, which is justly regarded as much the more 
speedy, certain and efficient remedy for the recovery of rents. 
Of the rents when collected, the devisee becomes, as it were, 



Emery v. Owings. 385 

a quasi trustee for their faithful application according to the 
will. So far from its being necessary to imply a devise of 
the rents to his executors, to eifectuate the intent of the tes- 
tator, there is every reason to presume his intent to have been 
the reverse of that, wliicli, by such an implication, it is assumed 
to have been. There is, therefore, no error in the county 
court's refusing the opinion and direction to the jury, sought 
by the appellants' first prayer. 

The appellants' second prayer was upon the whole evidence. 
The defendants, by their counsel, prayed the court to instruct 
the jury that if they find from the evidence that the receipt 
oifered in evidence by the plaintiifs, of the 5th June, 1840, 
for the sum of $866, was given by Nicholas Owings, under 
an agreement that the same should be applied to the pay- 
ment of the rents thereafter to become due from the defend- 
ants to said Nicholas Owings, from the Fox Eock quarry, 
under the lease of the 11th June, 1840, and the said sura of 
$866 has not been returned to said defendants by the said 
Nicholas Owings, or those claiming under him, or in any 
way satisfied, that then they must allow said receipt, or so 
much thereof as may be now due as an offset to the plaintiffs' 
demand; which instruction the court refufed to give to the 
jury, but gave to them the following instruction, to wit: 
"But if the jury find from the evidence that the defendants 
are chargeable with the rubble or oflTal stone taken by them 
from said Fox Kock quarry, and that they have taken out 
the amount of said receipt for $866 in said rubble or ofi'al 
stone, then the said $866 is not to be received in bar of this 
action, notwithstanding the jury may find that said $866 was 
agreed to be applied to extinguish the rents of said quarry." 

The testimony in tiiis case being all received without objec- 
tion, unless it be on the ground assumed in the court's instruc- 
tion to the jury, it does not appear that any other reason 
existed for the court's refusal to grant the defendants' second 
prayer. It becomes our duty, then, to inquire into the legal- 
ity of the court's instruction as regards the liability of the 
appellants to pay for rubble stone. This liability tlie court 
referred to the decision of the jury; and in this we think the 
county court erred. 

It is a wise and well established rule of law that the true 
VOL. VIII — 25 



386 Lease. 

constrnction of written contracts is to be declared by the 
court, and not submitted to the finding of the jury. In the 
lease in question before the court, sufficient appears upon its 
face to show what was its trne intent and meaning; what was 
the intention of the parties in entering into the contract. 
Tlie lease describes the appellants (the party of the second 
part) as residents of the city of Baltimore, and partners in the 
trade and business of quarrying, cutting and selling granite 
stone and carrying on the same under their copartnership 
name and firm of Emery & Ganlt, and transfers to the appel- 
lants " the license, right and privilege of quarrying, getting 
out, working and carrying away granite stone from said quar- 
ry or quarries, to the use and benefit of said Emery & Gault 
or the survivor of them, and the executors, administrators and 
'assigns of such survivor, for the term of six years, they paying 
for the stone IJ cent per cubic foot." The very fact of the 
stone being sold by the cubic foot, in the absence of all other 
confirmatory parts of the lease, demonstrates that the stone 
sold and sought to be obtained under the lease were dimen- 
sion, not rubble stone, the former being always bought and 
sold by the cubic foot, whilst it is believed, and may. be safe- 
ly asserted, that in Maryland, no instance exists, or ever djd 
exist, of rubble stone being sold by the cubic foot. Such a 
rule of admeasurement is wholly inapplicable tornbble stone, 
and is applicable to sales of dimension stone only, which are 
never sold by that species of measurement, if to be measured, 
at all; whilst rubble stone is universally sold in the mass, or by 
the perch. This interpretation of the contract between the 
parties is strongly corroborated by the fact that the appel- 
lants are stone cutters in the city of Baltimore, and conse. 
qnently use dimension stone only. Had they been stone 
masons, there would have been some plausibility in the argu- 
ment that their contract embraced rubble, as well as dimen- 
sion stone. 

The county court did not err in rejecting the first prayer 
of the defendants below; but there is error in its refusal of 
the second prayer, and in the instruction which it gave in 
relation to the rubble stone, and therefore its judgment should 
be reversed. Biit no procedendo should issue; because there 
appears to be but three quarters of a year's rent due on the 



OwiNGs V. Emery. ■ 387 

lease, for which any aqtion could have been sustained by the 
plaintiffs below, and the set-off, to which the said defendants 
have shown themselves entitled, far exceeds that amount. 

Judgment reversed. 



OwiSTGS ET AL., Executors, V. Emery' et al. 

(6 am. 230. Court of Appeal of Maryland, 1847.) 

Facts of the case— Ontstaudlng' surface lease. In 1840 Nicholas Ow- 
inga leased to defendants the Fox Rock quarry for the term of six 
■years, and the lessees went into possession. In 1836, B & C, who then 
had the right so to do, had leased to D all their estate and interest, being 
two third parts of all that tot within the farm of N. 0. called Fox Rock, 
for the term of Ave years, which prior lease, before action brought, had 
come to defendants as to one half. The metes and bounds in both 
leases were the same. In an action by the executors of Nicholas Ow- 
ings for the rent due under the lease of 1840, it was held: 

L Surface lease. That the lease of 1836 was a grant of the superficies 
of the soil and did not pass a right to .the quarry, as it was not opened 
at the date of that lease. 

• 2. Snrface and mining: leases not conflictingr. That the case is not 
one of conflicting leases; the deed of 1836 being a lease of the surface of 
the soil; that of 1840, a lease or license to quarry stone. 

Open mines. If a man hath land, in part of which there ia a mine open 
and he leases the land, the lessee may dig the mine; as the mine is open 
and he leases all the land it shall be intended that his interest is as gen- 
eral as his lease. 

Waste. Making of new mines is waste unless the lease is of all mines 
on the land. 

" Recently worked." A recital in a lease dated in 1840, that a quarry 
"had been recently or a short time ago possessed and worked by W.," 
can not be understood as meaning that the quarry was opened four years 
previously. 

Appeal .from Baltimore County Court. 

This was an action of debt, brought by the appellants 
against the appellees, to recover $500 rent on a lease made 

" Halm V. Alderson, 1 Arnod, 329; Moore v. Miller, 8 Pa. St. 272; 
Walker v. Tucker, 8 M. R. 672. 



388 • Lease. 

by Nicholas Owiiigs on the 11th June, 1840, to the appellees, 
for the term of six years. The lessees were to enter tlie 
demised premises on the 11th November, 1840, and tlie rent 
claimed was for the first year. Tlie defendants pleaded nil 
debet,with. leave to give any special matter in evidence which 
miujht be pleaded in bar, upon notice, etc. 

1st exception. At the trial the plaintiffs read in evidence 
the lease, as follows: 

" This indenture, made this 11th June, 1840, between 
Nicholas Owings, of, etc., and John B. Emery and Cyrus 
Gault, witnesseth, that the said N. 0., in consideration of, etc., 
hath demised, etc., and by, etc., doth demise, etc., unto the 
said E. & G. the granite quarry and quarries, situate in Balti- 
more county, near the Patapsco river or falls, on land of said 
Owings called and known by the name of 'Fox Rock, or 
Fox Rock Quarry,' being the same which was, or were lately 
possessed and worked by Wood & Co. and now by Joseph 
Yager & Co., and which are more particularly described, 
etc.; and also the leave, license, right and privilege of quarry- 
ing, getting out, working, and carrj'ing away, granite stone 
from said quarry or quarries, to the use and benefit of said 
E. & G., etc., for the term of six years, from and immediately 
after the 10th November next ensuing the date hereof, in 
such quantities, from time to time, as the said E. & G. may 
have occasion to use in their business, or may choose to 
quarry — not less than forty thousand cubic feet in each year 
of the said term — together with, etc., the use of so much, etc., 
yielding and paying to the said N. 0., his, etc., for the use of 
the premises, and the stone to be quarried and got out of said 
quarry or quarries, during said term of six years, one cent 
and one quarter of a cent for each and every cubic foot of 
stone which shall or may be so quarried and got out there- 
from by the said E. & G. They hereby bind themselves to 
quarry and get out at least forty thousand cubic feet in each 
and every year during said term, or to pay for that quantity 
at the rate aforesaid, if they fail to quarry and get out 
that quantity, and all over to be paid for, etc., and the 
said N. O. for, etc., doth hereby covenant with the said 
E. & G. that they, the said E. & G., upon the payment 
of the said rent or quarry leave, and performance of the 



OwiNGS V. Emery. 389 

covenants above reserved and mentioned, on their part to 
be paid and . performed, shall and may quietly possess, 
use, occupy and enjoy the said Fox Eock quarry and 
premises, included within the following lines, viz.: Com- 
mencing at, etc., a stone marked No. 1, and running east to a 
white oak tree marked with three notches; then northeast to' 
a stone marked No. 2; then north to a stone marked No. 3; 
then west to a stone marked No. 4, and then to the place of 
beginning, for the purpose of freely quarrying, getting out, 
working and carrying away stone therefrom, at their discre- 
tion as aforesaid, during," etc. 

The plaintiffs further proved that the defendants were in 
possession of the demised premises during the years 1840 
and 1841, etc.; that the plaintiffs were executors of N. O. 
before the bringing of this suit, and that he died in De- 
cember, 1841. 

The defendants then read in evidence the notice served on 
plaintiffs' counsel under the leave in this cause, of the mat- 
ters of defense relied on by them, and a lease dated 25th July, 
1836, from Beale Owings and Cornelius H. Owings, who it is 
admitted had title at said date to make such lease, to Caleb 
J). Owings, for all their estate and interest — being two thirds 
parts of and in all that piece or lot of ground within the 
limits of the farm of Nicholas Owings, being in Baltimore 
connty, which lot of ground is called Fox Rock, and which 
was granted and conveyed by said Nicholas Owings to the 
said Beale, Cornelius H. and Caleb D. Owings, by indenture, 
bearing date on tlie 20th November last past, and recorded, 
etc., and which is contained witiiin tlie description following 
— that is to say: Beginning for the same at a stone marked 
No. 1, standing on the outline of a tract of land, called 
" Wells and Howard's first and second adventure," being a 
division line between the lands of the said Nicholas Owings 
and a certain Noah Worthington, and being south of Sweet 
& Co.'s railroad, and running thence east to a stone marked 
No. 2; then running north to- a stone marked No. 3, planted 
in an old field, known by the name of Frog's field; then west 
to said division line, between the lands of the said Nicholas 
Owings and Noah "Worthington, running to a stone marked 
No. 4, and then south, running with said division line, to 



390 Lease. 

tlie place of beginning; containing six acres, more or less, 
to have, etc., the two-thirds of the piece or parcel of ground 
hereby intended to be demised unto the said 0. D. O., his, etc., 
for the term of five years, accounting from the 25th July, 
1836, and thence next ensuing, yielding and paying there- 
for yearly, and every year during said term, to the said 
B. O. and 0. PI. O., etc., the rent or sum of six cents, if 
demanded, and bo more. 

Tiie defendaTits also read in evidence the assignment of 
said lease, dated the same day, from said Caleb D. Ovi^ings to 
Charles Wood, Joseph Yager, John D. Stevi^art and Edward 
Green, and offered to prove by said Yager that said Caleb 
was a partner with said Wood, Yager and Stewart, but with- 
drew from said firm about 1839; that on 11th June, 
1840, the defendants were the owners of one undivided half 
part in interest in said lease, dated 25th July, 1836, and said 
Yager of the other half part; and that the defendants and said 
Yager remained possessed of said demised premises under 
and by virtue of said lease of 25th July, 1836, until its expi- 
ration in July, ISil. Tlae defendants oft'ered all 8 aid evidence 
for the purpose of showing that the lease now sued on did 
not take effect until 25th July, 1841. 

Whereupon the plaintiffs, by their counsel, cbjccted to said 
offered evidence, and every part thereof; but the court (Pue- 
viANOE, A. J.), overruled said objection, and admitted the said 
offered evidence, and every part thereof, to be given to the 
jury, in reduction of the amount claimed in this action. The 
plaintiffs excepted. 

The other exceptions are sufficiently stated in the opinion 
of this court. 

The verdict and judgment of the county court being against 
the plaintiffs below, they appealed to this court. 

The cause was argued before Aeohee, C. J., Doeset, 
Spenoe, Maueudee and Maetin, JJ. 

By Pakean and Beent for the appellants, and 

By liiNKLEY and Kelson for the appellees. 

Maetin, J., delivered the opinion of this court. 



OwiNGs V. Emery. 391 

In tliis case an action of debt was instituted in Baltimore 
County Court, by tlie appellants against the appellees, to re- 
cover the sum of $500, the amount alleged to be due on the 
loth November, 18il, for one year's rent of stone quarry 
called the Fox Rock quarry, which had been demised to the 
appellees by Nicholas Owings, in an indenture bearing date 
the 11th June, 1840, for the period of six years, to take effect 
from the 10th November, 1840. 

The defendants pleaded to this action ttil debet, and under 
the leave granted to rely upon any defense that could be 
specially pleaded, gave notice that they would offer in evi- 
dence a lease of the 35th July, 1836, for the Fox Eock quarry, 
made by Beale Owings and Cornelius Owings to Caleb D. 
Owings, and the assignment of two thirds parts thereof by 
Caleb D. Owings to Wood & Yager, and which was outstand- 
ing, unexpired, and in full force, at the date of the lease on 
which this action was brought, so that the lease of the lltli 
June, 1840, could not commence until the lease of the 25th 
July, 1836, had terminated or expired. 

At the trial below, the plaintiffs offered in evidence the 
lease of the 11th June, 1840, and proved generally that the de- 
fendants were in the occupation of the demised premises in 1840 
and'184l, and in this posture of the case, and in the absence 
of all explanatory or defensive testimony, the defendants were 
to be regarded in legal contemplation, as in the possession and 
enjoyment of the quarry in question, under the lease of the 
11th June, 18i0, and were therefore disabled from impugning 
or controverting the title 'of their lessor, Nicholas Owings, 
the apj)ellants' testator. 

At this stage of the cause, the defendants, for the purpose 
of showing that they have been evicted or interrupted in their 
right of possession as lessees of the Fox Kock quarry, under 
the lease of the 11th June, 1840, and that they were not re- 
sponsible for rent prior to the expiration of the lease of the 
25th July, 1836, offered in evidence the lease of the 25th 
July, 1836, in connection with the oral testimony of Ya- 
ger, who proved that on the 11th June, 1840, the defend- 
ants were the owners of the undivided half interest in the 
lease of the 25th July, 1836, and that the said Yager was the 
owner of the other half part, and that the defendants and said 



392 Lease. 

Yacrer remained possessed of the said demised premises under 
and by virtue of the lease of the ^Sth July, 1836, until its ex- 
piration in July, ISil. Tiie plaintiffs below objected to the 
admissibility of this evidence, but the objection was over- 
ruled and the evidence received. And the testimony offered 
by the plaintiffs, as exhibited in the second, third and fourth 
bills of exceptions, having been rejected, upon the application 
of the defendants, the court instructed the jury that upon the 
evidence aforesaid the plaintiffs could not recover any rent 
stipulated to be paid anterior to the 25th July, 18-H, because 
the evidence, if believed by the jury, shows such an inter- 
ruption of the possession by the defendants under the lease 
now in suit, as precludes the plaintiffs from recovering any 
rent anterior to the 25th July, 1841. 

The counsel for tlie plaintiffs excepted to the ruling of the 
court with respect to the admissibility of the testimony of- 
fered by the defendants in the first exception, and to the in- 
strnction given by the court to the jury as exhibited in the 
fifth exceiition. Both the exceptions raised substantially the 
same question. The exposition of the law of the case, to be 
fonnd in the^opinion of the court, as expressed in the fifth ex- 
ception, was predicated upon the evidence introduced under 
the first exception, and if the court erred in admitting the 
testimony presented by the plaintiffs in the first exception, 
their instruction to the jury was necessarily erroneous, as 
under such circumstances there would be no evidence to 
sustain it. 

It is apparent from the statement we have thus given of 
the pleadings in this cause, that the claim interposed by the 
defendants for a reduction and apportionment of the rent can 
only be maintained upon the ground that a case was 'pre- 
sented of conflicting leases, and the point made by the coun- 
sel forthe plaintiffs on this branch of the argumetit was, that 
there was no incompatibility between the lease of the 25th 
July, 1836, and the lease of the 11th June, 1810, because the 
first lease operated only as a grant of the superficies or surface 
of the soil, and did not pass a right to the quarry, which was 
for the first time demised to the defendants by the lease of 
the 11th June, 1810. 

In Saunder's case, reported in 5 Coke's Rep. 22, it was ad- 
judged: 



OwiNGS V. Emery. 393 

Ist. If a mail hath land, in part of which there is a coal 
mine open, and he leases the land to one for life, or for years, 
the lessee may dig for it; forasmuch as the mine is open at the 
time, and he leases all the land, it shall be intended that his 
interest is as general as his lease is, that is, that he shall take 
the profit of the land, and, by consequence, of the mine in it. 

2d. If the mine w§re not open, but included in the bowelg 
of the eartli at the time of the lease made in such ease, by 
leasing of the land the lessee can not make new mines, for that 
shall be waste. 

3d. If a man hath mines hid within his land, and leases 
his land and all the mines therein, then the lessee may dig 
for them, and tlierewith agrees 9 E. 4, 8, where it is said, 
that if a man leases his land to another, and in the same 
there is a mine — wliich is to be intended of a hidden mine — lie 
can not dig for it; but if he leases his land and all mines on 
it, then, altiiough the mines be hidden, the lessee may dig for 
them. 

By an examination of the lease of the 25th July, 1836, it will 
be found that tliere is no grant of the stone quarry; the ex- 
pressions in the lease are: All their estate and interest, 
being two tliirds part of and in all tliat piece or lot of ground 
within the limits of the farm of JSTicholas Owings, being in 
.Baltimore county, which lot of ground is called Fox Rock; 
and it is perfectly clear that the quarry demised to the de- 
fendants by the lease of the 11th June, 1840, was not covered 
by the lease of the 25th July, 1836, unless the quarry was 
opened at the date of the lease. 

The lease of the 11th June, 1840, contains the following 
description of the quarry granted by E^icholas Owings to the 
defendants: ''The granite quarry and quarries situated in 
Baltimore county, near the Patapsco river or falls, on land of 
said Owings, called and known by the name of Fox Rook or 
Fox Rock Quarry, being the same wiiich was or were lately 
possessed and worked by "Wood & Co. and now by Yager & 
Co;" and these expressions were relied on by the counsel for 
tlie appellees, as showing that the quarry was open on the 
25th July, 1836. But certainly no such deduction can be 
drawn from the'use ,of these descriptive expressioTis. "When 
the lessor, on the 11th June, 1840, said, that the quarry 



394 Lease. 

v.-Iiicli he wns describing had been recently, or a short time 
ago, possessed- and worked by Wood & Co., he can not be 
understood as meaning that the quarry was opened, and in 
tile occupation of the persons to wliom he referred, as long 
back as the 25th July, 1836, a period of nearly four years. 

We have examined the testimony delivered by Yai^er, for 
the purpose of ascertaining if there was any fact stated by the 
witness from which the jury could infer that the quarry in 
question was open at the date of the lease of 25th July, 1836. 
But no such fact is supplied by the testimony of this witness. 
He says that on tlie 11th June, 18i0, the defendants were the 
owners of one undivided half part in interest in the lease 
dated the 25th July, 1836, and he, the witness, of the other 
half part, and that he and the defendants remained possessed 
of the demised premises under and by virtue of the lease of 
the 25th July, 1836, until its expiration, in July, 1841; and 
when the witness speaks of being possessed of the demised 
premises, we understand him as referring to the lot called 
the Fox Rt^ck, granted by the lease of the 25th July, 1836; 
and if he could be regarded as alluding to the quarry demised 
by the lease upon which this suit is brought, it could not be 
relied on as indicating that the quarry was open on the 25th 
July, 1836, as his evidence does not profess to carry the 
possession of himself and the defendants further back than 
the 11th June, 1840. 

We think that upon the circumstances of the case, as pre- 
sented by the first bill of exceptions, the lease of the 
35th July, 1836, must be treated as granting only the 
superficies or surface of the soil, and conferred u])on the 
lessee no authority to dig for or work the quarry mentioned 
in the proceedings, and that there was, therefore, no incom- 
patibility between the rights demised by the first lease, and 
those granted by the lease of the 11th June, 1810. And this 
being so, it follows that the defendants, as the lessees of the 
Fox Rock quarry, could not have been impeded or inter- 
rupted in the use and enjoyment of that quarry by the lease 
of the 25th July, 1836. 

The pretension of the defendants that they were entitled to 
a reduction and apportionment of the rent which had become 
due on the 11th November, 1811, was not sustained by the 



Fisher v. Millikeht. 395 

evidence in tlie cause, and tlie court below erred in admitting 
the testimony offered by the appellees to the first exception, 
and in -the instruction which they gave to the jury in the 
fifth exception. 

The testimony offered by the plaintiffs below, in the 
second, third and fourth bill of exceptions, was proposed to 
be introduced for the purpose of repelling the evidence which 
had been produced by the defendants, as exhibited in the fir^v 
bill of exceptions; and as according to the view we have 
taken of that evidence, it ought not to have been received by 
the court, and is to be treated as not in the cause. The 
questions decided by the county court with respect to the ad- 
missibility of the testimony offered by the appellants, ha-ve 
become mere abstract propositions, upon which it is not 
necessary for this court to express an opinion. Practically, 
the testimony was properly rejected, for it results from tlie 
opinion we have expressed upon this case, that the riglit of 
the appellants to recover the sum of $500, as the amount of 
rent due to them at the period of the institution of this 
action, was not affected by the lease of the 25th July, 1836. 

The judgment of the county court is reversed on the first 
and fifth bill of exceptions, and affirmed upon the second, third 
and fourth bills of exceptions. 

Judgment reversed— procedendo awarded. 



FlSHEK V. MlLLIKEN. 

(8 Pennsylvania State, 111. Supreme Court, 1848.) 

' Election of mode of payment of rent, determined. The lessees of a mine 
covenanted to pay forty cents a load for the ore taken, but were at lib- 
erty to substitute an annual sum, at their election, to be made at the 
end of the first year; but in case they did not so elect, they covenanted 
to take outannually, and pay for, 800 loads. No substitution was in fact 
made at the end of the year: Held, that their covenant to pay at the 
said rate for each load became positive, absolute and indefeasible. 

« Assignor of lease bound, notwithstanding subsequent modifications. 

1 Foley V. AddenbrooJce, 8 M. R. 349. 

^Batnothabletokeep asrfgnor's contracts with strangers: Preston \. 

McCall, 7 Grat. 121. 



396 Lease. 

The lessee is bound upon the covenants of his lease, to his lessor, after 
an assignment bj' the lessee, and is not released by a subsequent contract 
between the lessor and the assignee modifying the lease in matters not 
affecting the covenant sued on. 

The relation of landlord and tenant as to a covenant for payment of 
rent can be dissolved only by an agreement between themselves, which 
equity would enforce. 

TVliat will release assig'nor. Nothing but a surrender, a release or an 
eviction can, in whole or in part, absolve the tenant from the obliga- 
tion of his covenant with hia landlord. / 

Disinterested witness. The assignee of the lessees of a mine who h:id 
paid for as many loads of ore as he was bound to pay for by the contract 
of assignment, and who does not appear to be responsible to any one' — 
not to the landlord, because he had performed his agreement with him, 
and not to the lessees, because he was bound to perform no covenant 
■ but his own — is disinterested, and therefore a competent witness. 

la error to the Court of Common Pleas of Mifflin County. 

May !I8th, Isaac Fisher brouo^ht an action of debt against 
Joseph Milliken and George McCnliocli, who survived Will- 
iam Mitchell, upon an article of agreement, or sealed instru- 
ment of wi'iting, dated 17th of Septeitiber, 1829. 

It appeared that Isaac Fisher, tlie plaintiff, lield the sole 
and exclusive right forever, in a tract of 500 acres of land, 
situated in Oliver township, Miffin county, and near to 
Waynesburg, of mining in and taking away all the iron ore 
to be found in the said tract of land, in carts, wagons, etc., 
with the further right of cutting timber on the said tract of 
land, for the purposeof working the mines in the most effect- 
ual manner. No question arose as to the title of Isaac 
Fisher, the plaintiff, to the land, or as to his right of mining 
it, or assigning his right to others. 

On the trial in the court below, before Bubnside, P. J., the 
article of agreement or sealed instrument of writing upon 
which this action was brought, was given in evidence. This 
article of agreement, dated the 17th of September, 1829, was 
between Isaac Fisher and Joseph Milliken, George McCul- 
loch and Williain Mitchell, since deceased, and executed and 
delivered by said piirties. The material parts of the article 
were the following; 

"That the said Milliken, McCulloch and Mitchell being 
the owners of Kope Furnace, with the appurtenances, in Der- 



FiSHEE V. MiLLIKElSr. 397 

ry and Wayne townships, and Fisher being the owner of a 
mine or bank of iron ore, near Waynesburg, which he pur- 
chased from Benjamin Walters, by deed bearing date the 25th 
day of September, 1827, conveying to Fislier all the ore in a 
certain tract of land therein described, containing 500 acres, 
more or less, and which said Walters formerly purchased from 
Thomas Bnrnside, Esq., adjoining lands of Samuel IloUiday, 
George Galbreath's heirs and others. For the consideration 
hereinafter contained, Fisher grants to the said Milliken, Mo- 
Cnlloch and Mitchell, and to their heirs and assigns, the right 
and privilege from this date forever, to enter in, over and 
upon the said tract of land and every part thereof, and to dig 
in, open and mine on any part of said tract of land, haul, take 
and carry away therefrom so much of the iron ore therein to be 
found as may be sulBcient to supply the said Hope Furnace 
or any other furnace which they, the said Milliken, Mitchell 
and McCnlloch may at any time build and erect on Strode's 
Eun north of the Lewistown and Huntingdon Turnpike; but 
no more ore is to be taken than will be sufficient for one fur- 
nace, and that furnace to be located on the run aforesaid, noi'th 
of said turnpike. It is understood and agreed that on the 1st 
of Jnne, 1831, or at any time before that, the said Milliken, 
McCuUoch and Mitchell, their heirs or assigns, may and are 
to have the privilege of laying off, by lines and corners, any 
place they may think proper on the said tract of land, an acre 
and a half of ground (in the siiape hereinafter described) on; 
in and over which thev shall have the exclusive I'igfht of diji;- 
ging, mining and carrying away the ore therefrom, the said 
Fisher, his heirs and assigns, only reserving the right of pass- 
ing over and through the said acre and a half of ground, by a 
road or cut of twenty feet in width, and of sufficient depth for 
carts and wagons. The said Fisher, his heirs and assigns, to 
have the ore found in opening such road or cut, unless the 
said Milliken, McCnlloch and Mitchell, their heirs and as- 
signs, choose to dig or open such road or cut at their own 
costs, in which case they shall be entitled to take or carry 
away all the ore found in opening or digging the same. The 
said acre and a half, when so laid off, is to belong exclusively 
to the said Milliken, McCulloch and Mitchell, so long as they 
shall continue to use the ore therefrom at the Furnace of Hope 



398 Lease. 

or any other furnace located as aforesaid; and in the event 
of there being a sufficient quantity of ore contained in tlie 
said acre and a half to be selected by the said Milliken, Mc- 
CuUoch and Mitcliell, they are to be confined, in raising, dig- 
ging and carrying away ore, to the said acre and a half. But 
if the ore shall at any time fail in the said acre and a half, or 
prove insufficient to supply one furnace, the said Milliken, 
Mitcliell and McOulloch, their heirs and assigns, to have the 
right to dig for, raise and carry away ore from any other part 
of the tract of land aforesaid, not interfering with any pits or 
mines which the said Fisher, his heirs or assigns, may open 
or be using. ' 

" It is agreed, on the part of the said Fisher, that he, his heirs 
or assigns, will not enter upon said tract of land, to dig or 
take away ore, before the 1st day of June, 1831, and from 
that time the said Fisher, his heirs and assigns, to be at full 
liberty, which is hereby expressly reserved, to dig, take and 
carry away, at any and all times, as much ore as they deem 
proper for the said land, except from tiie acre and a half con- 
veyed to the said Milliken, McCuUoch and Mitchell; Fisher 
at the same time agreeing and binding himself that he will 
never assign the right of taking away ore to be used in any 
furnace in which the said Fisiier is not personally interested 
or in part owner (save only the grant or assignment to the 
said Milliken, McCulloch and Mitchell, herein contained). 
This covenant to run with the mine or bank forever. 

"The said acre and a half of ground to be laid off by Milli- 
ken, Mitchell and McCulloch by lines parallel to, and at right 
angles with the course of the ridge which lies northwest of 
the mine, the acre and a half to be laid out in a square, 

"In consideration of the premises the said Milliken, Mc- 
Culloch and Mitchell, their heirs and assigns, covenant to 
pay to the said Isaac Fisher, his heirs and assigns, for and 
during the first year, to be computed from the time they shall 
commence to haul ore from the mine aforesaid, at the rate of 
forty cents per wagon load of two tons nnbnrnt for all the 
ore they shall haul away from the mine. At the expiration 
of the first year it shall be optional with the said Milliken, 
McOulloch and Mitchell to pay at the same rate per load, or 
pay Fisher $230 per annum and $100 to B. "Walters, which 



FlSHEK V. MiLLIKEN. 399 

Fisher has covenanted to pay him for each year he or his 
heirs or assigns may use the said ore bank. If Milliken, Mc- 
OiiUoch and Mitchell should raise Hope Furnace to a greater 
height, then the sum to be paid Fisher annually — if they 
choose -to pay by the year — shall be $360, and the $100 to 
Walters as aforesaid. If they should at any time build a 
new furnace on said run of eight feet, and shall choose to pay 
by the year, then the annual sum to be paid Fisher — if they 
choose to pay by the year— shall be $500 and the $100 to 
Walters as aforesaid, and the sum to be paid Fisher, including 
tlie $100 to Walters, to be increased at the rate of $100 over 
and above $500 for every foot in the size of said furnace over 
and above eight feet in the boshes. It is further agreed, that 
after the first year, if the said Milliken, Mitchell and MeCul- 
loch shall choose to pay by the load, they shall take and pay 
for at least 800 loads." 

It appeared that the defendants under this agreement dug 
3ome ore, but never hauled any away. They some time after- 
ward sold Hope Fnrnance to David W. Huling, and put him 
in possession in 1830. Huling dug and hauled ore under the 
agreement between' Fisher and the defendant for a number of 
years. On the 6th day of August, 1830, Isaac Fisher, with- 
out consulting the defendants, so far as the evidence showed, 
entered into the following agreement with David W. Huling: 

" It is agreed between Isaac Fisher and David W. Hilling 
as follows: Fisher is the owner of an ore bank in Wayne 
township, by contract with Benjamin Walters, and Mr. Hu- 
ling is owner of Hope Furnace, with the appurtenances, by 
purchase from Mitchell, Milliken and McCnlloch. 

" Now it is agreed between David W. Huling and Isaac 
Fisher that the agreement formerly entered into with Mitchell, 
Milliken and McCuUoch is to be modified as follows: David 
W. Huling, having succeeded to all tlie rights of the latter, 
David W. Huling agrees to relieve and exempt Fisher from 
the payment of all and every sum and sums of money or 
metal to Benjamin Walters, on account of the ore to be used 
at Hope Furnace; and instead of the prices settled in the 
former agreement between Mitcliell, Milliken and McCnlloch, 
to which this is declared a supplement, David W. Huling is 
to pay Fisher, his heirs, etc., twenty-five cents per load yearly 



400 Lease. 

on the Ist day of April, and is to have the ris^ht of taking 400 
loads in each year, to make the payments to Walters, for which 
Fisher is not to receive anything; David W. Hnlingto payor 
satisfy all claims of Wallers, whether founded on^ contract 
with Fisher or Mitchell, Milliken & Co.; the right of the par- 
ties to remain respectively as secured by the former agree- 
ment of September 17, 1829, except as above excepted, and ex- 
cept also that the following stipulation in the former agree- 
ment of September 17, 1829, is abrogated and repealed, to wit: 
'Fisher at the same time agreeing and binding himself that he 
will never assign the right of taking away ore to be used in 
any furnace in which he, the said Fisher, is not personally 
interested, or in part owner (save only the grant to Milliken, 
McCulloch and Mitchell herein contained); this covenant to 
run with the mine or bank forever,' it being now agreed that 
Fisher and his assigns are to be exempt and forever discharged 
and released from this covenant. Witness our hands and 
seals, August 6, 1830." 

David W. Ruling, who was examined as a witness, under 
objection by the plaintiff on the ground of interest, testified 
that Milliken, McCulloch and Mitchell never blowed Hope 
Furnace; that he went into possession of said furnace in 
1830; that he got his ore principally from the Walters bank 
and the Reiser bank; that all the ore he got from the Wal- 
ters bank was under the written contract with Fisher, and 
which was read to the jury by him; that he had to pay Wal- 
ters Sl'^lO yearly, which Fisher was to pay; that to pay that 
sum it took 400 loads of ore yearly, and that he never took 
more than 400 loads yearly from the Walters bank, and that 
he consequently had nothing to pay to Fisher; that he had al- 
so an agreement with Walters that if he took no ore he was 
to pay no rent; that Fisher was with him, and he thought 
made this agreement with him simultaneously, or immediate- 
ly after he purchased Hope Furnace from Milliken, McCul- 
loch and Mitchell. His evidence was objected to by the 
plaintiff, and a bill of exception sealed by the court. The 
witness further testified as follows: 

" I can't tell whether before or a(ter I made the purchase 
from Milliken & Co. I made the agreement with Fisher; but 
it was well understood if I made the purchase of Hope Fur- 



Fisher v. Milliken. 401 

nace I conld get the ore from Fislier and Walters. Mitcliell, 
Milliken and McCuUocli had raised some ore. I paid them 
for tliat. There was none hauled until I hanled it. They had 
raised some, and I paid for the raising of it. 

Cross-examination. — "I purchased out Milliken, McCul- 
loch and Mitchell with the appurtenances. It was in writing. 
I took possession of Hope Furnace under the agreement witli 
them, but not of the ore bank. I got that under an agree- 
ment with Fisher and "Walters, 23d October, ISli. Served it 
yesterday." Notice read to produce agreement with liuling 
for Hope Furnace. 

Joseph Milliken sworn: " I know nothing of that agree- 
ment. I don't think there was an agreement. Mitche'l drew 
the writing. I have no recollection I ever had it." 

David W. Hnling further cross-examined by plaintiff: " The 
defendants had hands coaling at the mines when I purchased. 
I estimated the expense of raising the ore, and paid for that. 
I continued raising there all the summer. I think I got pos- 
session in 1831. I do not know that I laid off tlieaci-e square. 
J, claimed it, and if 1 laid it off, it was under. I tliink 1 had 
no hands working there before my agreement with Fisher. 1 
did not come under their agreement to take ore. I claimed, 
I suppose, to dig ore under their agreement and mine with 
Fisher and Walters, but I was not going to dig ore under their 
agreement. I went into the matter about 1830, all about the 
same time. I never hauled any ore to any other place than 
Hope Furnace, nor ever hauled from that bank to any other 
place." 

This suit was brought to November Term, 1840, and the 
plaintiff alleged that he was entitled to the price of 800 tons 
of ore yearly from 1831 up to the time of bringing suit. 

It appeared from the charge of the court (Burnside, P. J.,), 
that the plaintiff's counsel conteTided that the first article was 
in force, and would so remain forever; and that the defend- 
ants were bound to pay under the said article, either $350 a 
year, or to pay- for 800 tons of ore yearly, as the jury found 
the fact, which had accrued after the date of the article, and 
before, this action was instituted. 

The following were plaintiff's points, and the answers of 
the court to the same: 

VOL. TUT. — 26 



402 Lease. 

" Tlie plaintiff asks us to instruct yon: 

" 1. Under the legal construction of the article of Septem- 
ber 17, 1829, the easement or right of digging and taking 
away ore from the mine was appurtenant to Hope Furnace. 
We answer that tlie owners of Hope Furnace might have 
made it appurtenant to Hope. Furnace under their agreement 
with Mr. Fisher. 

" 2. That the use of the ore could not be separated from 
the furnace witiiont the consent of Isaac Fisher. We agree 
the grant of the ore by Isaac Fisher was only for Hope Fur- 
nace and such other furnaces as might be built on Strode's run, 
north of tlie turnpike. 

•' 3. That David W. Plnling, Esq., in virtue of his pur- 
chase of the furnace, succeeded to the rights of using the ore 
at tlie furnace in the same manner that Milliken & Co. had it 
before their sale of the furnace to Huling; but there is no evi- 
dence before the court and jury what were the terms of their 
sale; and Mr. Huling, on the cross-examination of the plaint- 
ift", discloses that he did not dig ore under the purchase from 
Milliken & Co., but under his agreement with Fisher and Wal- 
ters, and that he was not going to dig ore under the plaint- 
ill' 's agreement with the defendants. 

" 4. That Mr. Huling, by virtue of this purchase of the fur- 
nace, and entering upon the easement of the ore bank, became 
liable to pay Fisher the yearly sums which Milliken & Co. 
had contracted to pay. This would be true if Mr. Iluliiighad 
entered on the ore under a purchase from Milliken & Co., and 
worked the ore bank without any subsequent agreement with 
Isaac Fisher. 

" 5. That Fisher had a right to enter into the article of the 
6th August, 1830, for his further security, and that the said 
article did not operate as a release of Milliken & Co. from 
their contract with Mr. Fisher. 

" 6. That there is nothing in the article of the 6th August, 
1830, obligatory upon Joseph Milliken or McCulloch or 
Mitchell, and that none of the stipulations in the said article 
would prejudice the defendants. 

" 7. Tiiere is no evidence before the jury of any act done 
by Isaac Fisher which in law or equity releases or discharges 
the defendants from the covenant to pay the plaintiff as stipu- 
lated in the article. 



Fisher v. Milliken. 403 

" 8. That Tinder the article of the 17tli of September, 1 829, 
the plaintiff is entitled to recover from the defendants the sum 
of $320 per year, with interest yearly, computing the time 
from the expiration of one year after the time the defendants, 
or any one holding the title to Hope Furnace, began to haul 
ore i'rom the mine. 

" 10. That under the article of the 6th of August, 1830, 
the only benefit that the defendant can claim is to reduce the 
annual payment to $200 yearly, according to the price men- 
tioned iu that paper; the yearly payments to bear interest from 
the time they fell due. 

" The points Nos. 5, 6, 7, 8 and 10 relate to the same sub- 
ject-matter, and will be answered together. We agree Mr. 
Fislier had a right to enter into the article of the 6tli August, 
1830, if he thought proper to do so; but we can not instruct 
tliat that article did not operate as a release of Milliken & Co. 
from the contract with Fisher. The jury will bear in mind 
tliat Milliken & Co. never blew Hope Furnace — never hauled 
a pound of ore from the Walters bank. They had dug some. 
Huling bought Hope Furnace, and then Huling and Fisher 
agree, under their hands and seals, that Huling is the- owner 
of Hope Furnace, with the appurtenances, by purchase from 
Milliken, Mitchell and McCulloch. Now it is agreed between 
them, Huling and Fisher, that the agreement of Fisher with 
Milliken, Mitchell and McCulloch is to be modified, and they 
go on and change the former agreement into material points. 
Huling made an agreement with Fisher. He went into pos- 
session and dug the ore and paid for it. If these facts are 
true, and we do not see how their truth can be disputed, we 
think the agreement superseded his agreement with the de- 
fendants, and that the defendants may take advantage of it, 
and they are discharged by the act of Mr. Fisher from paying 
for the ore dug by Huling. You will bear in mind that this 
article between Fisher and Huling was entered into before the 
defendants were bound to make an election whether they 
would pay by the year or load. How could they elect after 
this agreement between Fisher and Huling? If Fisher put 
Huling in possession, as Huling swears, was it not an ouster 
of the defendants? and if he ousted the defendants why should 
he support this action against them? In the judgment of the 



404 Lease. 

court the plaintiff by his own act has destroyed his right of 
recovery against the defendants. 

" We are further asked to instruct you — 9: That under the 
pleadings in the action the defendants admit the cause of ac- 
tion set forth in the plaintiff's declaration, and the plaintiff is 
entitled to recover unless the defendants have shown that they 
have paid the plaintiff. 

"The pleas are covenants performed, and payment with 
leave, etc. In Pennsylvania the plea of payment with leave 
does not admit any material averment in the declaration or 
statement, excepting the execution of the instrument upon 
which the action is brought, and except what is admitted by 
the general issue in every action: Roop v. Bruhacher, 1 E. 
304, which plea admits the contract as set out; but if the suit 
is for damages for the non -performance of that contract, the 
damages must be proved; the mere averment by the plaintiff, 
without evidence of the amount, will not authorize a finding 
of more than nominal damages, unless when the amount was 
part of the agreement." 

To this charge and the answers of the court to the points 
submitted, the plaintiff excepted. The jury found a verdict 
for the defendants; whereupon the plaintiff sued out this writ 
of error. 

The admission of Huling as a witness, and evidence given 
by him as embraced in plaintiff's first and second bills of ex- 
ception, and tlie answers of the court to plaintiff's points, 
were the errors assigned. 

FiSHEE and Paekke, for plaintiff in error. 

R.- C. & J. T. Hale, contra. 

Gibson, C. J. 

The article of agreement between the plaintiff and the de- 
fendants was in substance the lease of a mine, and had all the 
consequences and qualities of one. It was to be perpetual, or 
at least so long as the lessees should continue to use the ore 
for the furnace specified in the deed; and they covenanted to 
pay forty cents the load for it, but they were to be at liberty 



Fisher v, Milliken. 405* 

to substitute an annual sum at their election, to be made at 
tlie end of the first j'ear; and they further covenanted that if 
they should not so elect, they would annually take out and 
pay for 800 loads. They in fact made no substitution, and 
their covenant to take and pay for the number of loads, 
and the price specified, became positive, absolute and indefea- 
sible. Thus bound, thej' sold tiieir furnace, with the appur- 
tenances, to Mr. Ruling, who entered on the mine, but agreed 
with the plaintiff to modify some of the terms of the lease. 
The plaintiff was bound to pay an annuity of $100 to the per- 
son from whom he bought the mine, the payment of which 
had been assumed by the defendants, but was now assumed 
by Mr. Huling, who was to be at liberty to take 400 loads, at 
the rate of twenty-five cents each, to meet the cliarge, and. at 
tlie same rate for whatever else should be taken by iiim. In 
every other point and particular the covenants and stipulations 
in the lease were to remain intact. 

On the principles of the action, and those resulting from 
the relation of landlord and tenant, a doubt is entertained 
whether something less than a release might not absolve 
the defendants from tlie obligation of their covenant. It is a 
doubt, howevpr, wliich I myself do not entertain; and with- 
out having the authority of the court for it, I am free to say 
that nothing but a surrender, a release or an eviction can, in 
whole or in part, have tliat effect. It will not be pretended 
that any arrangement or dealing of the lessor with a stranger 
would have it at law; and it is clear that equity will not re- 
lieve the lessee from his positive covenant for any act of tlie 
lessor wliich does him no injury. As he can not be prejudiced 
by the landlord's relation with a third person, there is every 
reason in the world why he should not have an advantage 
from it. The relation of landlord and tenant as to a cove- 
nant for payment of the rent can be dissolved only by an 
ai>reement between themselves, which equity would enforce; 
but there was neither such agreement here, nor a considera- 
tion for one, nor was there privity between them as regards 
the arrangement with Mr. Huling. In conformity to this 
principle, it has been held in an almost countless number of 
cases collected in Comyn on Landlord and Tenant, 275, that 
the tenant is bound by a covenant to pay the rent, though he 



406 Lease. 

assign his lease with the landlord's assent, and tlion<!;h the 
latter accept the assignee for his tenant, and receive rent fVom 
hiiri. My own opinion is, that this principle covers and dis- 
poses of the whole case. For the same reason equity refuses 
to relieve against such a covenant, though the premises be 
consumed by fire, destroyed by the elements or encroached on 
by the sea. It is true that in Camden v. Morton, and Brown 
V. Quilter, 2 Eden's Kep. 219, in which it appeared that the 
landlord was insured, and, the premises having been con- 
sumed, had received the insurance money, a court of equity 
enjoined him from proceeding on the covenant till he should 
rebuild, and left the tenant his option to surrender liis lease 
in case he should refuse to do so. But in Hare v. Groves, 
Anstr. 687, in which Chief Earon McDonald said there 
" might be some equity to say that he should not keep the 
house or its value and receive the rent also, and in Holtz- 
apffel V. Baker, 18 Ves. 115, in which it was observed at 
the bar that it was difficult to conceive how the distinct con- 
tract of the lessor with the insurance office, with which the 
lessee had no concern, could affect the right between them, 
chancery refused to interfere. It is just as difficult to con- 
ceive how the distinct contract of the plaintiff with Mr. Hu- 
ling, which did not prejudice the defendants, and with which 
they had no concern, could release them from their covenant. 
From the two cases last quoted, the conclusion of Mr. Chitty 
— and it is eminently entitled to respect— is, that the two pre- 
ceding ones are overruled. 

But not to insist on the peremptory nature of the covenant, 
a majority of the court concur that the modification of the 
lease by the agreement with Mr. Haling did not disturb the 
engagement to take and pay for, at the original price, the 
number of loads originally specified. With Huling, so far as 
he was concerned, the plaintiff agreed that the price should be 
twenty-five cents the load, but Huling did not bind himself to 
take any jmrticular number of loads. lie stipulated for lib- 
erty to take 400, or barely enough for payment of the annuity 
which he took upon himself; so that if the covenants of the 
defendants were discharged, the plaintiff might get nothing 
more for his mine. But the covenant in the lease to pay for 
800 loads was expressly reserved, and on every principle the 



FiSHEE V. MlLLIKEIT. 407 

defendants are bound by it. But how far? It follows not 
that because the plaintiff might choose to let Mr. Hulinj^ 
have all the ore he should take at a reduced price, he would be 
bo\ind to let the defendants off at tlie same price for loads not 
taken at all. The contract with ITuliiig extended only to loads 
taken, not to what should not be taken; and in prejudice of 
the landlord's absolute security, it is not to be extended by 
implication. . Had Mr. Huling agreed to raise the price, the 
defendants would not have been bound by it, and it is impos- 
sible to conceive how they could avail themselves of the agree- 
ment to lower it. They^ were not parties to it, nor, as regards 
it, in privity with those that were. The objection that the 
two contracts are inconsistent with each other, and that the 
plaintiff might recover a double satisfaction by an action on 
each of them, presents but the shadow of a difficulty. It 
never has been conceived that payment of rent by an assignee 
is not pro tanto payment by the assignor. Payment, even by 
a stranger, will discharge a debt, and it has not been supposed 
when the landlord accepts 'the assignee of a covenantor who 
becomes liable only on privity of estate, that he has two rents 
instead of two securities for the same rent. When there is 
no covenant, express or implied, by the lessee to pay, and 
debt is brought on the reddendum, in the deed, he has not 
even that; for it appears by Wadham v. Marlowe, 8 East 
31i, that where there is barelj' a;reservation, without a cove- 
nant to pay, the lessee is discharged by an assignment, because 
there is then no privity, either of contract or estate, between 
the original parties, and the assignee becomes liable on yjrivity 
of estate only. There is really therefore, no difficulty in the 
case before us. The plaintiff is entitled to recover the value 
of 800 loads a year at the original price, but not the amount 
of the annuity paid by Mr. Huling. The objection to the 
competency of the latter as a witness, is not sustained. He 
paid for as many loads as he was bound to do, so far as we 
know, by the contract of assignment, and does not appear to 
be responsible to any one; not to the plaintiff, because he per- 
formed his agreement with him, and not to the defendants, 
because he was bound to perform no covenant but his own. 
He was tlierefore disinterested. 

Judgment reversed, and venire de novo awarded-. 



408 Lease. 

BicLL, J., clissentcd, and B'jkkside, J., took no part, having 
ruled the cause below. 



Haegrave et al. v. King et al. 

(5 Iredell, Eq. 430. Supreme Coart of North Carolina, 1848.) 

' Covenant against assignment — Snblettingr. A condition in a lease for 
years, or lor life, that the lease is to be void if the lessee assigns, is valiJ_ 
But a lessee under such a condition may associate others with himself 
in the enjoyment of the term, or may make a sobiease. 

" Agent taking lease in his own name. If one agree by parol to buy land 
for another, and he does buy the land, and p lys for it with the money 
of his principal, but takes the deed in his own mime, eqnify will enforce 
the agieeracnt, and compel him to make title to the principal; so of an 
agreement to procure a lease for another. In these instances the Stat- 
ute of Frauds does not apply. 

This was an appeal from an interTocntory order of the court 
of equity of Davidson county, overniliii;^ the pleiis of the de- 
fendants, at spring term, 18J8, his Honor, Judge Peakson, 
presidin;,'. 

The bill alleges that the plaintiffs and the defendants, Ad- 
derton and King, agreed to associate themselves together as a 
company or copartnership, for the purpose of procurin<>- a 
lease from the defendant. Sawyer, of certain land owned by 
hun, and to search and operate for gold thereon; that in pur- 
suance of this agreement, King procured a lease from Sawyer 
of seventy -five acres of land for the term of twentv j-ears; 
that the lease was taken " to King and those he may associate 
with him;" that after King had obtained the lease, the plaint- 
iffs and the defendant Adderton, in pursuance of their pre- 
vious agreement, requested King to sign with them written 
articles of agreement by which their interest in the said lease 
should be recognized and secured, and by wliicli the parties 
respectively were to contribute equally toward the expense 
of working the mine, and to divide the net profits equally; 

' Biirdon v. BarJcus, 4 De Gex, F. & J. 42; Post Pahtner: Briles v Pace 
1?, Ired. L. 279. 
2 Collins V. Case, 1 M. R. 91. 



Hargrave v. King. 409 

itliat King, nnder one pretext and another, from time to timo 
refused to enter into any written agreement, and finally set up 
claim in himself to the whole lease. The prayer is, that King 
may be, declared a trustee of the lease for the plaintiffs and 
himself and the defendant Adderton, and may be decreed a 
trustee to convey to them, as his associates, and for other 
relief. 

The defendant King filed two pleas: " The plea of Roswell 
A. King, one of the defendants, to the bill of complaint of 
Samuel Ilargrave, James A. Long and Samuel Gaither, ex- 
hibited against said King, Enoch Sawyer, and Jeremiah Ad- 
derton in this honorable court. 

This defendant, by protestation, not confessing or acknowl- 
edging all or any of the mattei-s and things in complainant's 
said bill of complaint to be true, in such sort, manner and 
form as the same are thereby set forth and declared, which 
for plea thereunto saith: 

That the lease mentioned in the bill, and this defendant is 
required to produce for the inspection of this honorable court, 
is the same of which a copy is hereunto appended, mai'ked 
(A), and the original of which is ready to be produced, if re- 
quired by tins honorable court, and defendant prays that the 
said copy may be taken as a part of this his plea. 

That by the terms of the said lease it will appear that tliis 
defendant can not associate with himself any persons without 
the consent of the lessor, one Enoch Sawyer, or sell or trans- 
fer any part or interest in tlie said lease without such consent, 
on pain of a forfeiture of the entire lease by this defendant; 
and this defendant doth aver that the said Sawyer, on appli- 
cation by this defendant, hath refused his consent to the com- 
plainants as lessees or associates of this defendant in the said 
lease, and hath informed this defendant that he shall insist on 
the condition in the said lease by which such association or 
transfer or sale to otliers, with his consent, is declared a for- 
feiture, and shall proceed to enforce the same should such 
sale, association. or transfer be attempted; all which matters 
this defendant doth aver and plead in bar of the complainants' 
said bill and -pretended demands. 

And this defendant, for further plea, saith: that he is ad- 
vised that by the act of the General Assembly of this State, 



410 Lease. 

passed in the year 1819, Eev. Stat., Ch. 50, Sec. 8, 'all con- 
tracts to convey lands or any interest in or concerning tliem, 
shall be void and of no effect, nnless snch contract or some 
nute or memorandum thereof shall' be put in writing, except- 
ing leases for three years.' And also by the act of the Gen- 
eral Assembly, passed in the year 1844, 'all contracts for 
leasing or leases of lands for the purpose of digging for gold 
or other minerals, or for the purpose of mining generally, 
shall be void and of no effect, unless such contract or lease, 
or some memorandum or note thereof, shall be put in writing 
and signed by the party to be charged therewith, or by some 
other person by him thereto lawfully authorized.' And this 
defendant saith: that neither he nor any other person by 
him lawfully authorized, did ever sign any contract or agree- 
ment in writing to sell or lease, or for the sale of or the leasing 
of, any lands to the complainants, or any lease for digging 
for gold or minerals generally, or any lands, or any interest 
in or concerning any such lands for any such purpose or to 
any such effect, or an\' note or memorandum in writing of 
any such agreement, nor has any one signed any snch deed, 
lease, or agreement, or any such note or memorandum thereotj 
by authority of this defendant." 

(Copy of the lease filed, omitting the details.) 
This indenture, made the 22d day of January, 1818, be- 
tween Enoch Sawyer, of the county of Kandolpli and State of 
North Carolina, of the one part, and Koswell A. King and 
tliose wImtu he may associate with him, for the purposes therein 
contained, of the other part, witnesseth, that the said Sawyer, 
for atid in consideration of the sum of one dollar to him in 
hand paid, etc., and in further consideration of the covenants 
hereinafter contained, hath demised, granted and leased, ai.d 
these presents doth demise, grant, etc., unto the said Roswell 
A. King and his associates, a certain tract or parcel of land 
lying, etc., containing 75 acres, more or less, to have and to 
hold the said land, to him the said King and his associates, 
their executors, administrators and assigns, together with all 
and singular the privileges for the complete assignment of 
the same for mining purposes, that is to say, from tlie date 
of these presents until the 22d day of January, 1868, that is, 
twenty years; and the said King doth covenant and promise 



Hargrave v. King. 41 1 

to commence operations on or before the 10th day of Febru- 
ary next, and to pay to the said Sawyer one seventh of all the 
gold, silver and other metal which may be extracted or ob- 
tained from the said mine, which toll of one seventh shall be 
paid monthly to the said Sawyer, his heirs or assigns; also 
my mill site, etc., etc. 

The said King has not the privilege of the timber without 
permission. The said King not to sell or transfer this lease 
under forfeiture of the same, without. consulting said Sawyer. 
(Signed and sealed.) 

EoswELL A. King. [seal.] 
Enoch Sawyek. [seal.] 

The plaintiffs set the pleas down for argument, and it was 
considered by the court that the said pleas be overruled, with 
costs, and that the defendant King answer the bill; from 
which interlocutory decree the defendant King prayed leave 
to appeal to the Supreme Court, which was allowed. 

Mendenhall and W. H. Haywood, for the plaintiffs. 

"Winston, Waddell and J. II. Beyan, for the defendants. 
Pearson, J. 

The appeal only brings up the interlocutory decree over- 
ruling the pleas. Our consideration, therefore, is confined to 
their suflSciency. 

Many objections were taken in this court for the want of 
form. It may be that the pleas are defective in form; but as 
we concur with the opinion below upon the substance, we 
express no opinion as to the formal objections. 

The first plea was objected to because the allegation, " that 
the defendant can not, by the terms of the lease, associate with 
himself any persons, or sell or transfer any part or interest in 
the lease without the consent of the lessor, on pain of a for- 
feiture," is repugnant to and inconsistent with the terms of 
the lease, which is made a part of the plea. Tiiis objection 
would be fatal, but to raise the questions which were intended 
to be presented by this plea, we will consider the allegation 
made so as to conform to the words and terms of the lease. 



412 Lease. 

Two questions are there made: Is a condition valid, by 
which a lease for j'ears is to be void, if the lessee assifjns? 
Such a condition is clearly good in a term for years or for 
life. It is not a capricious exercise of power on the part of 
the lessor. In a lease for agricultural purposes, the lessor is 
interested in having a good tenant and one who understands 
his business. He is more so in a lease for raining purposes, 
where greater skill is required and more confidence is neces- 
sarily reposed in accounting for the tolls or rent. 

The other question is: Will King, by the terms of this 
lease, incur a forfeiture, by recognizing the plaintiffs and the 
defendant, Adderton, as his associates, and conveying to them 
as tenants in common with himself? 

Clearly he will not. Conditions are taken strictly because 
they divest estates; hence, although there be a condition not 
to assign, the lessee may make a sublease,' a fortiori he may 
take in associates or partners. The lease under consideration 
has an express clause by ♦vhich King is allowed to associate 
others with himself. The condition is, " that he is not to sell 
or transfer the lease," in other words, he is not to " assign," 
80 as to be himself no longer interested in it. The plea is 
founded upon an entire misconception of the lease and the 
condition. The object of the lessor was to provide that King 
should retain an interest in the lease, because he had reliance 
upon his skill and hoiietty. 

It was not intended to cramp his operations by excluding 
tlie aid of associates. 

The second plea was objected to, because the averment that 
"neither tiie defendant nor any other person by him au- 
thorized, did ever sign any contract or agreement in writing 
to sell or lease, or for the sale of or leasing of any lands to the 
complainants, or any lease for digging for gold, or minerals 
generally, or any lands, or any interest in or concerning any 
such lands," etc., is irrelevant to, and does not meet any al- 
legation made in the bill; for the bill does not allege that the 
defendant did agree to sell or lease any land, or any interest 
in or concerning land to the plaintiffs, but the allegation is 
that the defendant leased the land of Sawyer (which lease is 
in writing) for himself and as the agent of the plaintiffs and 
the defendant, Adderton. 



Hargrave v. King. 413 

This objection is fatal; it goes to the merits. The plea 
does not allege that the agreement set out in the bill was not 
reduced to writing, so as to raise the question whether tliat 
agreement comes within the operation of the statutes whicli 
are referred to in the plea. So the plea does not •' hit the 
case'^ made in tlie bill, and is, therefore, no answer to it. 

But if the plea had been so framed as to raise the question 
wliether the agreement set up in the bill comes within the 
objection of the statutes referred to, we think it does not. 

The eflfect of the act of 1844 is to except contracts " for 
leasing or leases" (when the purpose is to dig for gold, etc.) 
out of the exception in the act of 1819, allowing parol con- 
tracts for leases not exceeding three years. In regard to 
leases, both statutes are, by their terms, confined to cases 
wliere one makes a lease, or agrees to make a lease, to another. 

It is well settled that if one agrees, by parol, to buy land 
for another, and he does buy the land, and pay for it with the 
money of his principal, but takes the deed in his own name, 
equity will enforce the agreement, hold him to be a trustee, 
and compel him to make title to the principal; for the statute 
which requires all contracts " to sell or convey land " to be in 
writing, has no application. The principle is the same when 
one, by parol, agrees to procure a lease for himself and others, 
and does procure the lease in his own name; he is a trustee 
for those for whom he agreed to act, and the statutes referred 
to have no application. 

The interlocutory decree appealed from must be affirmed 

with costs. 

Ordered to he certified accordingly. 

Per Cueiam. ' 



414 Lease. 



ElDGWAY V. SnEYD. 
(1 Kay, 627. High Court of Chancery, 1854.) 

' Minimum rent exactfid from exliansted mine. Coal mines were demised 
at a certain royalty per ton upon the coal which might be got, and also 
at the rent of £300 a year, or so much thereof as with the royalty should 
amount to that sum, such rent of £300 to be a minimum rent for the 
coal demised; and the lessee covenanted to pay the rents, and to work 
the mine: Held, that a court of equity would not restrain an action by 
the lessor for the minimum rent, although the coal proved to be not 
worth the expense of working; but that, if the lessor were to sue upon 
the lessee's covenant to work the mine, the court would interfere. 

^ Fanlt — Caveat emptor. ; In applying the ruie of'cavf-at emptor to the case 
of leases of coal mines, it must be remembered that every one acquaint- 
ed with that kind of property is aware that coal mines are liable to be 
interrupted by faults. 

Mine exhaasted before lease. If all the coal had been gotten by ancient 
workings, that might be a case for equitable relief. 

John Eidgway, the plaintiff in this cause, being the lessee 
and occupier, under different land owners, of adjoining mines 
and collieries, took from the defendant a lease for twenty 
years by an indenture dated the 25th of December, 184S, and 
made between the defendant of the one part and the plaintiff 
of the other part, of all the mines, veins, beds or strata of coal, 
cannel and slack, then opened or known, or which should at 
any time during the continuance of the said demise be found 
lying under the closes of land therein described, part of which 
belonged to the defendant, and part had been sold by the de- 
fendant to Eichard Braddeky, reserving to the defendant the 
coal under them and power to get the same; and the defend- 
ant also demised to the plaintiff in like manner certain sur- 
face land, yielding and paying to the defendant for the whole 
of the coal and cannel thereby demised, which the plaintiff 
should get during the continuance of the demise, the rent and 
royalty thereinafter mentioned, that is to say, the sum of 1«. 
for every 2,520 lbs. weight of such coal or cannel, and so in 
proportion for a less quantity than 2,520 lbs. And also 

' Bute v. TTiompion, 8 M. R. 370. 

» Lehigh Co. v. Hartan, 8 M. R. 423; Morris v. Smith, 6 .M. R. 22. 



EiDGWAY V. Sneyd. 415 

yielding and paying to the defendant for the whole of tlie 
slack thereby demised which the said plaintiff should get dur- 
irg the continuance of the demise (except such part of the 
said slack as therein particularly mentioned), the rent and 
royalty thereinafter mentioned, that is to say, the sum of 6d. 
for every 2,520 lbs. weight of such slack; and so in proportion 
for a less quantity than 2,520 lbs. And also yielding and 
paying yearly and every year during the continuance of the 
said demise unto the said defendant for the coal, cannel and 
slack thereby demised, the rent or sum of £300, or such part 
thereof as with the several rents, royalties, and suras of 
money thereinbefore reserved would amount to that sum; and 
yielding and paying £4 per acre for the surface land demised ; 
all such rents and royalties to be paid half-yearly upon the 
usual quarter days in June and December. And it was there- 
by provided and declared that the said yearly rent or sum of 
£300 tliereinbefore reserved, was so reserved as and for a 
minimum rent for tiie said coal, cannel and slack thereby 
demised, in each and every year during the continuance of the 
said demise; and that, subject to the proviso thereinafter con- 
tained, anything there contained should not in anywise prej- 
udice or affect the right of the said defendant to have or 
receive the whole of tlie several other rents, royalties and 
sums of money thereinbefore reserved in respect of such coal, 
cannel and slack in each 'and every year during the contin- 
uance of the said demise, in which the same should exceed 
the sum of £300. And the lease contained clauses usual in 
mining leases dividing the whole term into periods, at the 
end of which, if the rent and royalty thereby reserved in re- 
spect of the said coal, cannel, and slack (exclusive of the said 
annual rent of £300, and the surface rent of £4 per acre), 
should exvjeed in the aggregate £300 per year, and if in any 
year of such period the several rents, royalties and sums of 
money, exclusive of the said annual rent of £300, and the 
said rent of £4 per acre, should not amount to the sum of £300 
then the plaintiff should be entitled to deduct from the ex- 
cess of the aggregate amount of such rents, royalties, and 
sums of money for such five years, above the sum of £300 
a year, any sum which he might have paid to the defend- 
ant in any year or years of such period, to make up the rents, 



416 Lease. 

royalties, and sums of money thereinbefore reserved in re- 
spect of the said coal, cannel or slack to the sum of £300 in 
each of said years. 

And it was tliereby also provided and declared, that the 
mines of coal, cannel and slack thereby demised should (sub- 
ject as thereinafter mentioned) be worked and gotten in the 
same progressive and regular course as the mines of coal, can- 
nel and slack of the plaintiff in and under the land adjoining 
thereto. And the plaintiff covenanted for the due payment 
of the said rents and royalties, and that the plaintiff and his 
agents, servants, workmen and miners would from time to 
time, and at all times during the continuance of the said de- 
mise, work, raise and get the mines thereby demised in and 
under the said lands of the said defendant, and also, subject 
as thereinafter mentioned, the mines in and under the lands 
of the said Kichard Baddeley, continuously, vminterniptedly 
and in proper and workmanlike manner, and in the same pro- 
gressive and regular course as the mines of coal, cannel and 
slack of the plaintiff in the said lands adjoining thereto should 
be gotten, obtained and raised, and clear the said mines there- 
by demised in aird under the lands of the said Kichard Bad- 
deley in the best way, as was usual in miries and works of the 
like description. And that if at anytime during the con- 
tinuance of the said demise the mines of coal, caiinel and slack, 
or any of them, in and under the lands of the said Eichard 
Baddeley, or any part or parts thereof, could not, by reason 
of the damage which would be occasioned thereby to any erec- 
tions on the said lands of the said Eichard Baddeley, or to any 
mill to be thereafter erected thereon, or any j^art or parts 
thereof, or from any other cause whatsoever (except any cause 
arising from the act or omission of the said plaintiff or his 
agents, servants or workmen), be worked, obtained, gotten 
and raised with profit and advantage to the said plaintiff", then 
and in such case the said plaintiff should not be called upon 
or required to work, obtain, get or raise any such part of the 
said last mentioned mines. And in case of disagreement, the 
fact of the said plaintiff being able or unable to work, obtain, 
get and raise the said mines, or any of them, in and under the 
said lands of the said Eichard Baddeley, or any part thereof, 
with profit and advantage for the reasons aforesaid, should be 



RiDGWAY V. Sneyd. 417 

ascertained by reference to arbitration, as thereinafter men- 
tioned. And the said indenture contained powers of entry 
and distress in case all or any of the rents, royalties or reser- 
vations thereinbefore reserved, or the sum or sums of money 
thereinbefore made payable, should happen to be unpaid for 
the space of fourteen days next after any of the said half-yearly 
days or times thereinbefore appointed for the payment there- 
of. And a proviso for re-enti-y upon the said mines and lands 
in the events therein mentioned. And the usnal provisions 
for arbitration, in case, during the continuance of the said 
demise or after the expiration thereof, any variance, contro- 
versy, doubt, dispute or question should arise between the 
said parties thereto touching or relating to the said indenture 
or any clause, covenant, proviso, matter or thing thei-ein con- 
tained, or the construction of the same, or touching or. con- 
cerning the practicability of the getting of any part of the 
thereby demised mines, according to the usual course of min- 
ing operations, or in any respect relating to the thereby de- 
mised mines and premises. 

Tlie plaintiff had discontinued the working of the mines, 
and the defendant had brought an action against him for the 
minimum rent of £300. 

The plaintiff filed this bill, praying for an injunction to re- 
strain the defendant from all further proceedings in the action 
commenced by him against the plaintiff, and from commenc- 
ing or prosecuting any other action or proceeding against the 
plaintiff upon any or eitlier of the covenants contained in the 
said lease, and for an account of the quantity of coals, cannel 
and slack, by the said lease capable of being raised at the date 
thereof from the said mines, allowing necessary pillars to 
support the works, and for fire engines, the plaintiff offering 
to pay to the defendant the sum of one shilling in respect of 
every 2,520 pounds weight of such coal and cannel, and the 
snm of sixpence in respect of every 2,520 pounds weight of 
such slack, on being allowed what he had already paid to the 
defendant since the date of the lease. 

And, if necessary, that it might be ascertained what quan- 
tity of the defendant's land the plaintiff had used and occu- 
pied in the exercise of the powers and privileges granted by 
the said lease, the plaintiff offering to pay to the defendant 
VOL. viji.— 27 



418 Lease. 

after the rate of £4 per statute acre for what sliould be found 
to have been nsed and employed bj him. 

And that, npon making such payments as aforesaid, the de- 
fendant might be directed to release and discliarge the plaint- 
iff from the covenants and agreements contained in tlie said 
lease, the plaintiff offering to execute a surrender of such lease 
to the defendant, or as he should direct. 

The case was argued upon the assumption that the mines 
were so much interrupted by faults that, although there was 
coal, it could not be worked with any profit 

Mr. Daniel, Q. C, Mr. W. M. James, Q. C, and Mr. W. 
EuDALL, for the plaintiff. — ^This lease has been granted under 
a mistake common to both parties, namely, the supposition 
that there was workable coal under this land; and a court of 
equity w-ill relieve against the consequences of a contract so 
entered into, especially in a case like a lease of mines, wliere 
the lessee had no power of ascertaining what was under the 
land before taking the lease: Lowndes v. Lane, 2 Cox, 363; 
Bingham v. Bingham., 1 Ves., sen., 126. Tiie existence fif 
coal was a condition of this lease, and if there be none which 
can be got tlie lease can not be supported: Smith v. Marra- 
hle, II M. & W. 5. Courts of equity have interfered in such 
a CHse to restrain actions against the lessee for not working.': 
Smith V. Morris, 2 Bro. C. C. 311. In Phillips v. Jones, '.) 
Sim. 619, a rent was reserved to be paid whether any coal 
should or should not be raised, and the working having been 
discontinued, the court in that case refused to restrain an ac- 
tion for the rent; but tliat autliority may be questioned, not 
being consistent with Smith v. Morris. They cited, also, 
Sutton V. Temple, 7 Jur. 1065; Bex v. Bedworth, 8 East, 
387. 

(Vice-Cftancelloe. — There may be some ground of equity 
if the defendant is bringing an action on the plaintiff's cov- 
enant to continue the working of the mine.) 

Mr. EoLT, Q. C, and Mr. Hislop Clarke, for the defend- 
ant. — The defendant lias not commenced anj' such proceeding, 
nor has he any intention of doing so. He only seeks to re- 
cover tlie £300 rent. 



EiDGWAY V. Sneyd. 419 

Yice-Chancellor Sir W. Page Wood. 

I can not restrain the defendant from suing for the rent. 
Upon the other part of the case — this is not an agreement 
but a perfected contract, on which no case for relief has yet 
arisen. I can not distinguish this case from Phillips v. 
Jones. It is said that it is difficult to reconcile that author- 
ity with Smith V. Morris. The principle of the latter decis- 
ion is sufficiently plain. There was a lease of mines, and tlie 
lessee was to pay, every year he should work, for 1,000 weys, 
9s. Qd. each. He covenanted, according to the report, that 
he would "diligently., at his own costs, try for veins of coal 
and use his utmost skill to come at the same, and get into 
working thereof within three years by such pits, engines, etc., 
as were usual; and would, within one month after he had sunk 
such pits, constantly (unless hindered by unavoidable acci- 
dents) work and raise 900 weys of coals yearly, if so mucli 
good merchantable coal might be had out of the same; and, 
in case so much coal can not bb had (without working the 
pillars necessary for supporting the work), would pay to tlie 
defendant, etc., 9s. ^d. for every wey of coals which he, etc., 
should neglect to raise, and which should be deficient of such 
quantity of 900 weys, the money for the deficiency to be paid 
at the end of every year; and, if he should neglect to sink a 
pit within three years, he should pay the defendant 9s. Qd. 
per wey yearly for 900 weys, until he should have sunk such 
pit. And there was a proviso in the deed, tiiat, in case with 
using due diligence there should not be found a sufficient 
quantity of coal to work 900 weys a year, or if the lessee dur- 
ing the terra sliould have worked all the coal except the nec- 
essary pillars for supporting the work, from thenceforth the 
lessee should be discharged from the covenant." 

It is stated in the report, that "the defendant brought an 
action, and assigned seven breaches besides that from not 
working the mine, which were all given up at the trial; but 
upon that for not working, although the plaintiff proved un- 
avoidable accidents, the jury gave a verdict for the defendant, 
and assessed the damages at £427 10s., which were paid. 
He afterward, in Hilary Term, 1784, brought another action 
and recovered a verdict on the same breach, with £534 7s. 
6aJ. damages." 



420 Lease. 

Afterward, two otlier actions were bronglit, and tlie de- 
fendant threatened to bring similar actions every year. Un- 
der those circumstances, the lessees filed the bill, "cliar<^ing 
that, under the circumstances, they were not compellable to 
■work the mines, and that even if they had worked it the 
mine would, before the filing of the bill, have been exhausted, 
except working the pillars; therefore, that it is contrary to jus- 
tice that the defendant should avail himself of the accidents 
which had happened, but that, upon the defendant being 
paid for so many coals as could be got, he ouglit not to re- 
quire any farther payment under the lease. The bill, tliere- 
fore, prayed an account of the quantity of coals capable of be- 
ing raised, allowing the necessary pillars to support the works 
and for a fire engine; and, in case it should appear that the 
defendant had received a sum equal to the rent payable by 
virtue of tlie lease for the same, that he should be restrained 
by injunction from bringing or prosecuting actions for the 
rent; or, if it should appear that he had not been fully paid, 
then, upon payment of so much as he should be unpaid, he 
should be restrained in like manner." 

The court did not afifect to vary the contract, or to say 
that because it was a lease of mines, in consequence of their 
turning out to be not worth working, the defendant was not 
to have any benefit from the lease. But what the court said 
was: If persons ai*e enforcing a contract "for the purposes 
of harass and vexation, courts of equity properly interfei-e. 
The plaintilf calls upon the court to interfere; because, if he 
carries thfe contract into execution, he must pursue the object 
at a greater expense than he can gain by it; the property 
either being not attainable, or attainable only at an intoler- 
able expense. Admitting it to be attainable in this way, the 
offer to pay Morris all he could ever obtain without incurring 
expense, is oflTering everything he could fairly require." 

That is to say, if the lessor can get everything which he 
contracted for, the court will take care tliat the lessee shall 
not, in addition, be put to useless expense, which will benefit 
no one. That case was not decided upon any ground of 
mistake. No doubt there is authority, that, where there is 
an obvious mistake, tin's court will not interfere to enforce 
the contract; but it is a difilerent question how far the court 



EiDGWAY V. Sneyd. 421 

will interfere to prevent due effect being given to an executed 
contract, where there is no mistake. In this case the alleged 
mistake is, that both parties thought the subject of the lease 
was a mine of workable coal: and it turns out that although 
there is coal, it is not workable. 

With regard to mines, the rule of caveat emptor must be put 
rather higher than the plaintiff has here contended for. It 
. has been said, how, can a man know what coal there is under 
ground? But every man who has anythiog to do with min- 
ing knows that coal mines are liable to faults. If it had 
turned out that in the course of working the plaintiff had 
come across ancient mines, excavated by the Romans or oth- 
ers in former times, and found that there the vein of coal was 
wholly exhausted, what raiglit in such ease have been the re- 
sult may be a question. But it is well known that it is the 
course of nature that all mines are liable to faults; and every 
one who takes a lease of coal mines, though he does so with 
the firm belief that the veins of coal go on underneath the 
land, yet knows that they may possibly be interrupted in this 
way. 

Ti'eat the case as if it were a sale of a mine which proved 
afterward to be full of faults. Of course the purchase would 
be made for the purpose of working. The coal is not worked 
out; but nature has done wiiat tiie purchaser knew before- 
hand it often does, namely, caused an interruption of the vein 
of coal. That is ore of the incidents which must be calculated 
upon in buying mining property, and therefore can not be a 
reason for avoiding the purchase. Looking at this lease, and 
the mode in which the rent is thereby reserved, the case 
seems to differ materially from Smith, v. Morris. The lessor 
lias reserved two specific rents — one in respect of all the coal 
Worked at so much per ton, and another rent of a certain sum 
every year for the coal demised, which is equivalent to a rent, 
whether the coal shall be worked or not, as in Phillips v. 
Jones. How am I, therefore, to say that this rent ought not 
now to be paid? This case seems to me to be completely 
within that decision. The only difference is, that the lessor 
has here demised the mine with a clause, providing that there 
shall be a deduction out of the fixed rent of the amount of 
royalty which may have been paid lor the coal actually 



422 Lease. 

worked, while in PUlllijps v. Joms the roj'altj wa8 to be add- 
ed to the fixed rent. That case havin;^ been decided by a 
court of co-ordinate jurisdiction, it is open to me to recon- 
sider the decision. Bnt T quite agree with the learned jnd^'e 
who decided it, tliat there was a material difference between 
that case and Smith v. Morris. The vice-chancellor says 
that Smith v. Jfoms " proceeded on this, namely, tiiat by 
the terms of the lease, the lessee was bound to work the mine, 
and in respect of the produce, a certain royalty was to be paid 
to the lessor; and it was said that the circumstances of the 
mine were such that the lessee would be ruined if he were 
compelled to work it, and therefore it was just that he should 
be relieved from the covenant to work the mine, if he gave 
the landlord all that he could have been entitled to if the 
mine had been worked according to the covenant — that is, a 
royalty of 9s. Qd. for every wey of coals contained in theland; 
but this lease is constructed in a different manner. In the 
first instance, there was to be paid yearly, during the term of 
twent3'-one years, a gross sum of £300 whether the coal was 
worked or not, and a royalty of 10s. per wey was to be paid 
if more was raised than 600 weys; and there was a covenant 
in the lease which bound the lessee to work the mines. Then 
came a proviso enabling the lessee, on giving notice, to deter- 
mine the lease when all the coal should be worked out; and 
consequently, when all the coal should be exhausted, the ten- 
ant might, by giving the required notice, free himself from 
all the obligations of the lease. If an action had been 
brought on the covenant to compel the plaintiff to continue 
the working of the mines, and there had been no other reser- 
vation in the lease than a royalty of a certain sura per wey on 
all the coal raised, then the court would have applied the 
principle of Smith v. Morris, and would have relieved the 
plaintiff from the expense of working an unprofitable mine 
on his paying the defendant for all the coal under the land, 
which would, in substance, be giving him all that he was en- 
titled to under the lease, for he could derive no benefit from 
compelling the plaintiff to continue the working of the 
mine." 

In this case the lessor can recover £300 a yedr, whether the 
coal be worked or not, and the royalty if the coal be worked. 



Lehigh Coal Co. v. Haklan & Hendeksois'. 423 

If the lessor were suing the plaintiflF upon his covenant to 
■continue the working of the mine, that would be like the 
case of Smith v. Morris, but no attempt has been made to 
enforce that covenant. Tlie plaintiff is under legal liabilities 
by this lease, which the lessor is not seeking to enforce in- 
equitably, and, therefore, this bill is in that respect prema- 
ture, and must be dismissed with costs. 



^The Lehigh Coal and Navigation Co. v. Hae- 
LAN & Henderson. 

(27 Pennsylvania State, 429. Supreme Court, 1856.) 

Partial mersrcr of successive leases of underlying' coal veins. A com- 
pany, the owner of four veins of coal known as the P, Q, R and S 
veins, let the R vein in 1842, the lessee to take out 8,000 tons per an- 
num. In 1846 they let the P vein to the assignee of the former leas? 
on the same terms, the minimum being raised to 15,000 tons. In 1847 
the same owners leased to H. & H., who had become the holders of 
the former leases, the R and S veins, which latter had never been 
opened — ^the lessees to take at least 50,000 tons [from the four lodes. 
The lessors agreed to pay for certain work in faults (they bing first 
consulted and approving by their consent in writing), out of the rent 
"hereinbefore agreed to be paid." After the lessees had expended 
large sums the R vein yielded but a trifling amount of coal, and the S 
vein none at all. In covenant brought by the lessee upon the lessor's 
agreement to pay for the work done in the faults, ft was held: 

1. That there was no merger of the former leases except for the pur- 
pose of fixing the aggregate rent. 

2. That the covenant to pay for work done in faults out of the rent 
of the " said veins " must be confined to rents accruing out of the R 
and S veins only, and this failing it could not be charged to the lessors 
personally. 

' Terbal modification of corenaut. A verbal assent by the lessor's agent 
to the doing of work contracted for by writing under seal, if effect ual, 
operates not to make anew covenant, but to make the lessor liable in 
assumpsit upon the parol waiver, and the lessor can not be held in cov- 
enant in an action based on such waiver; otherivise if it had been a suit 
by the lessor where the lessee had waived a condition precedent. 

' S. C, 8 M. R. 496. 

2 Hazleton Co. v. Buch Mt. Co., 2 M, R. 389. 



424 Lease. 

Idem. Where a plaintiff sues on a covenant which has been modified by 
parol in a point essential to the defendant's liability, the written con- 
tract will be treated as abandoned or used only to mark the tenns and 
extent of the new stipulations. 

Local peenliarities of the action of corenaiit. The action of covenant, 
though sometimes in Pennsylvania made to answer the purpose of a 
bill in equity, is, S3 far as regards the instrument sued on, strictly an ac- 
tion at law, and if a plaintiff in pleading brings down his covenant to 
parol to suit his evidence, he defeats hie action. 

Parol coiiccs-sions not admissible in "covenant." Evidence of the work 
done in the faults of the veins was not admissible under the lease where 
the written consent of the company to its performance had not been 
obtained. 

Error to the Common JPIeas of Carbon Connty. 

Tliis was an action of covenant, brought by Ezekiel W. Har- 
lan and Robert Henderson aj^ainst the Lehigh Coal and iS^av- 
igation Companj', upon the following agreement nnder seal: 

This indenture, made the 12tli day of April, in the year of 
our Lord 18i7, between the Lehigh Coal and Navigation Com- 
' pany, of the first part, and Ezekiel W. Harlan and Robert Hen- 
derson, of the second part, witnessetii that the said party of the 
first part, for and in consideration of tliepaynient of the rent 
and performance of the covenants and agreements hereinafter 
mentioned on the part of the said party of the second part 
hereto to be paid, performed, observed and kept, have let and 
demised, and hereby do let and demise unto the said party of 
the second part the right and privilege to mine and take away 
stone coal from the veins known as the R and S veins, ajid 
any other veins intermediate between said veins and the Q 
vein in the Sharp Mountain, on the land of the said party of 
tlie first part, near to the town of Tamaqua, in the county of 
Schuylkill and the State of Pennsylvania; to have and to hold 
the riglits and privileges hereby demised unto the said party 
of the second part, from and after the 1st day of April, 1847, 
for and during the term of three years thence next ensuinir, 
fully to be complete and ended on the 31st day of Marcli, A. 
D. 1850, yieldingand paying therefor unto the said party of the 
first part, their successors and assigns, the rent or sum of twen- 
ty-five cents per ton for each and every ton (of 2,240 pounds) 
during the said term so mined and taken away, of the size that 
would, in the ordinary course of screening, pass through an 



Lehigh Coal Co. v. Harlan & Hendeeson. 425 

inch square mesh, and over a three eighths inch square mesh, 
and coininonly called chestnut coal; and for all coal of a 
larger size than the above, 50 cents per ton (of 2,240 lbs.), mak- 
ing a deduction on the whole of said rent of 5 per cent., as is 
hereinafter provided. 

And it is further covenanted and agreed by and between 
the said parties, that the said party of the second part shall 
mine and take away from the said veins, and from the i' and 
Q veins now in possession of the said party, at least 50,000 
tons of coal in each and every year during the continuance of 
this lease, provided the said veins, by all proper management, 
means, efforts, and exertions, can be made to yield or produce 
the said quantity of coal above specified; said party of the 
second part shall use all necessary and proper diligence and 
precautions that may be required to enable them to mine and 
take away the quantity aforesaid, by running gangways and 
chutes, day and night, in such manner as may be directed by 
the mine agent of said party of the first part. But if the 
said party of the second part shall not use, in the opinion of 
said agent, the necessary means, efforts and exertions in work- 
ing the said veins, and shall in consequence thereof fail to mine 
and take away the said quantity, they shall notwithstanding 
pay to said party of the first part the same amount of rent as 
if they had mined and taken away the full quantity of 50,000 
tons, as above specified. All the rent that may accrue by vir- 
tue of these presents shall be paid by the said party of the 
second part to the said party of the first part, their successors 
and assigns, in quarterlj' payments, on the first day of the 
months of July, October, January and April. 

And it is further mutually covenanted and agreed by and 
between the said parties, in manner following, that is to say: 

That the said party of the second part shall and will, at the 
ex))iration of every quarter during this lease, furnish to said 
party of the first part a statement, signed by themselves, of the 
number of tons of coal mined during the then next preceding 
quarter, and the weight of such coal shall be ascertained, fixed 
and determined by the railroad scales near Tamaqna, attested 
by the superintendent of said scales; for all of which the said 
party of the second part shall pay quarterly the rent hereinbe- 
fore stipulated to be paid, less the deduction of five per cent, 



426 Lease. 

as aforesaid, unto the said party of tlie first part, their succes- 
sors and assigns; and on failure to pay tiie rent accruing un- 
der this lease, as the same shall become due, according to the 
terms and conditions hereof, in manner aforesaid, it shall and 
maybe lawful for the said party of the first part, their succes- 
sors and assigns, to enter on the said demised premises, and 
to distrain the goods and chattels then and there found, and 
to proceed with and sell the same according to the usual course 
of distress for recovering rents in arrear. 

2. That all the coal the said party of the second part may 
mine as aforesaid, shall be screened and prepared in the best 
possible manner, and be at all times subject to the inspection 
and approval of the mine agent of tlie snid yjarty of the tii'St 
part. And should said agent at any time or times decide that 
the coal is not properly preyjared, it sliall not be permitted to 
go to market till properlj' selected. 

3. That all the refuse coal or dirt taken out of said veins, 
shall be deposited in such position or jjlaces as the said mine 
agent may from time to time direct. 

4. That said party of the second part will, at their own 
expense, and subject to the direction and approval of the 
superintendent and engineer of the said party of the first part, 
make all the necessary improvements for opening and work- 
ing the said veins, by driving a slope from a point to be 
selected by said superintendent and engineer, into the R 
and P vein, at this latter point driving a tunnel across into 
the S vein and bringing the coal from both veins by said 
slope to the head of the inclined plane now in use for the Q 
vein and thence transferring it to the breakers and screens now 
in use for the coal from said Q vein; the said party of the 
second part also providing, at their own expense, all the addi- 
tional machinery required for breaking and screening laid 
coal. Tlie said improvements to be completed on or befo.e 
the first day of April, 1818. 

5. That the veins shall be worked in the manner directed 
by the said company's mine agent, and all the coal shall be 
taken out as clean as shall be consistent with safety, and the 
gangways left in good working order at the expiration of this 
lease, and the mine agent, or the superintendent, of the said 
party of the first part, shall have the right at all times of 



Lehigh Coal Co. v. Harlan & Henderson. 427 

free ingress and egress to and from said vein, to see that the 
terms, conditions and stipulations of this agreement are 
faithfully observed and performed. 

6. That the said partj of the first part, their successors or 
assigns, shall have the right and privilege to keep at the ex- 
piration, or sooner determination of this lease, all the ma- 
chinery hereinbefore stipulated to be provided by the said 
party of the second part, said machinery to be taken at a fair 
and just valuation to be made thereof. 

7. That the said party of the second part shall and will, 
at their own cost, lay railroads in the drifts and gangways of 
said veins, and keep the same in good order and repair, and 
also shall and will furnish all the rails — to be of white oak or 
yellow pine — the drifts, cars, prop timber, boards, planks, and 
slabs necessary and requisite for the said railroads, gan:;-ways 
and drifts, subject to tlie like approval of the mine agent or 
superintendent of the said party of the first part, but nothing 
herein contained shall be construed as autiiorizing said party 
of the second part to cut or carry away any timber from land 
belonging to the said party of the first part. 

8. That the said party of the second part shall and will, at 
their own expense, keep the roads, chutes, engines, screens, 
breakers, and all other machinery, in good working order 
during the continuance of this lease, and at the expiration or 
sooner determination thereof, shall and will surrender the 
said demised premises and all their right and claim to such 
roads, machinery and other improvements as may be con- 
structed or used for properly working the said veins, except- 
ing the additional machinery for breaking and screening, as 
is hereinbefore excepted, unto and for the use and benefit of 
said party of the first part, their successors and assigns. 

9. That on failure to pay the said rent in manner afore- 
said, or if the said veins shall remain unworked for the space 
of thirty days at any one time, or if the said party of the 
second part shall transfer or assign th.is lease or underlet the 
premises, without the consent of the said party of the first 
part first had in writing, or if tiie said party of the second 
part shall, in the opinion of the agent of the party of the first 
part, neglect, refuse, or be unable on their part to comply 
with or perform any of the said covenants herein set forth, 



428 Lease. 

then, and in either of such cases, this lease and every matter 
and tiling therein contained may, at the option of tlie said 
party of the first part, tlieir successors or assigns, becomt; 
void, and then, and in that case, the said party of the first 
part may re-enter on the said demised premises, and hold the 
same as if these presents had not been executed, without 
prejudicing or affecting any claim they may have for rent, or 
for damages they may sustain for breach, by the party of the 
second part, of the covenants above specified, anj'thing here- 
inbefore contained to the contrary thereof notwithstanding. 

10. That if the said party of the second part can not pro- 
cure, without cost, the right of way thi-ongh lands owned by 
others than the party of the first part, then, and in that case, 
the said party of the second part shall, for the purpose of 
securing snch right of way, institute the proceeding and ob- 
serve in all respects the formalities required by the act of 
Assembly of the 5th of Ma^', 1832, entitled "An act regulat- 
ing lateral railroads," and the cost of such proceeding shall 
be borne by the said party of the first part. And upon the 
payment of said cost of proceeding and of all outlays conse- 
quent thexeon for the obtainment of said right of way, the 
said party of the second part engage to convey to the said 
party of the first part, by good and sufficient deeds and clear 
of all incumbrance, the lands not now belonging to the said 
party of the first part, which it may be necessary to occupy 
with said improvements, and which mny be acquired with or 
by amicable arrangement with the owners thereof, or by pro- 
ceeding under the above mentioned act of 5th of May, 1832. 

11. That whenever a dirt fault shall occur in said veins 
the said company shall and will allow the said party of the 
secf>nd part a fair and just price for running the gangways 
through all such dirt faults, exceeding ten yards lineal, pro- 
vided, however, that soft workable coal shall not be considered 
faults. And in case the rock or slate closes in so as to cut off 
the coal and render it neeeseary to cut away the rock or slate 
in order to obtain the necessary width of gangway, then and 
in such case the said party of the first part shall and will pay 
the whole expense of removing such rock or slate faults, they, 
the said party of the first part, at all times being first consult- 
ed, and approving by their assent in writing, of runnino- such 
gangway in or through any faults. 



Lehigh Coal Co, v. Haklan & Hendeeson. 429 

12. That the said party of the first part will make a fair 
allowance for the railroad iron and for the spikes necessary 
for laying the railroads in the main drifts or gangways upon 
'completion of the same, said allowance to be made by deduct- 
ing it from the rent hereinbefore stipulated to be paid; but 
no allowance will be 'made for repairs. And a fair allowance 
to be determined by the mine agent of tiie party of the first 
part, shall also be made for running the slope and doing tlie 
other work necessary for opening the said veins, provided tiie 
mode of opening the said veins shall have been upon a plan 
approved of by the engineer of the said party of the first part, 
the said allowance to be made by deducting it from the rent 
hereinbefore agreed ta be paid. 

13. The said party of the second part hereby agree that 
the mine agent of the party of the first part shall at all times 
have free access to their mining books and accounts for the 
purpose of verifying the returns made of the quantities of coal 
which may be taken from the several veins hereinbefore 
mentioned. 

And for the just and true performance and obse