
    Flory v. Heller, Exr.
    Where the landlord of a slate quarry was assessed for taxes on the land and paid the same, and the tenant was assessed for taxes on the quarry and machinery, the machinery having been placed upon the land by the tenant, the tenant cannot defalk the taxes, paid under the assessment on the quarry and machinery, from the royalties due the landlord as rent.
    March 15, 1889.
    Error, No. 217, Jan. T. 1889, to review a judgment on a verdict for plaintiff, on an appeal from a justice of the peace, C. A. Heller, executor, and trustee of the estate of Amelia H. Eley, deceased, being plaintiff, and Solomon Flory, defendant, at June T. 1888, No. 15. Sterrett and Green, JJ., absent.
    The evidence was to the following effect, at the trial, before Keeder, J.:
    On Feb. 24, 1885, the plaintiff executed to the defendant a lease of a tract of land, “together with all and singular the appurtenances thereunto belonging, with the privilege to search for and to quarry and carry away slate from any part of said land and to turn water upon and to dump rubbish on any part thereof and to make roads anywhere over the same. To have and to hold the said land with the appurtenances and the privileges ” for thirty years, paying, as rent, a royalty upon the slate quarried. The lessee further covenanted to make a certain quantity of slate per year.
    The lease further provided: “It is also agreed that all machinery and fixtures placed upon the land by the party of the second part, his executors, administrators and assigns shall belong to him or them, and may be removed and taken away after the termination of the lease for any cause. It is also agreed that the parties of the first part may use and occupy the buildings and land for dwelling and farming purposes during the continuance of this lease, but so as not to interfere with the working of the quarry and searching for slate.” The lease also contained an option of purchase by the lessee.
    The plaintiff, by his counsel, made the following admissions, upon the trial:
    “Plaintiff now admits that the amount or balance due of $41.22 was kept back or deducted from the royalties due on account of county, school and road taxes paid by the defendant on the property described and set forth in the lease submitted in evidence, which were paid by the lessee.
    “ It is now admitted by the parties that the Monarch Slate Oo. is the sub-tenant of Solomon Flory; that, during the year 1887, all the premises leased were assessed as farm land in the name of the decedent’s estate, and that these taxes were paid by said estate; that during the said period of time there was assessed against the Monarch Slate Co., upon the quarry and machinery, taxes to the amount of $41.22, which the defendant kept back from the royalties and seeks now to charge against the landlord.
    “ It is further admitted that, at the time of the execution of the lease, the premises that were let were farm land; that, since the execution of the lease, the lessee and the sub-tenant has quarried slate therefrom, and has placed the machinery for quarrying upon the premises, and is engaged in the quarrying and manufacturing of slate thereon.
    “ It is also admitted by the parties that the taxes which the defendant now seeks to defalk against the claim of the plaintiff, were assessed against the Monarch Slate Oo. upon their quarry and machinery and improvements.”
    The court charged, inter alia, as follows:
    “ In the case before us, it appears from the admissions in evidence that the owner of - the property was assessed for the land and paid taxes upon the land. Whether that tax was properly laid, whether it was inadequate, or whether it was excessive, are matters that we have nothing to do with here. He was assessed and paid taxes for the amount which his land was assessed at, and upon which the defendants held a lease.
    “ The defendants were also assessed for their quarry, machinery, etc. Whether that was a proper assessment or not is not a question for our consideration here. With the fact whether it was little or excessive in amount, we have nothing to do here. But it was not a tax for which the plaintiff was liable, and hence it was not a tax which the defendant can defalk in this action. Your verdict will therefore be for the plaintiff for the amount admitted to be due, namely, $42.86.”
    The defendant presented the following points:
    “ 1. Without special agreement in a lease, a lessee is not bound to pay taxes on demised premises. Am. This point I deny.” “2.' In the absence of any covenant in a lease, touching the payment of taxes, the law implies a covenant on the part of the lessor to pay the same on the demised premises. Am. This point
    
      “ 4. A lessee may pay taxes on demised premises and defalk from the rent the amount of taxes so paid. Am. This point I affirm with the qualification that he may pay taxes on the demised premises which are assessed against the landlord, and when he does so, may defalk from the rent the amount of taxes so paid.”
    
      “ 5. When a lessor is liable for taxes, he is liable for taxes assessed against the -property used for the purposes set forth and described in the lease. Am. This point I affirm, as qualified by what I said in my general charge.”
    “ 6. The premises in question, having been leased for the purpose of mining, quarrying and manufacturing slate, and there being no covenant in the lease touching the payment of taxes, the lessor is bound to pay such taxes. Am. This point 1 deny.”
    “7. Under the law and evidence, the verdict must be for the defendant. Ans. This point I deny.”
    Yerdict and judgment for plaintiff for $42.86. •
    
      The assignments of error specified, 1, the portion of the charge above, quoting it; and, 2-7, the answers to defendants’ points, quoting the points and answers.
    
      T. F. Emmens, with him Charles F. Walter, for plaintiff in error.
    The first and second points are abstract principles of law and refer solely to the liability on the part of the lessor to pay taxes on demised property, when the lease is silent as to the question of taxes. The landlord is liable unless the lease obligates the tenant to pay them. Jackson and Gross on Landlord and Tenant, page 503 ; 1 Taylor on Landlord and Tenant, § 341; Kitchen v. Smith, 101 Pa. 452.
    The lease is only a right to quarry and take the slate from the land. No estate in soil or minerals is granted. The lease does not convey the title to the slate, but only the right to quarry for a limited time. This right or license is an incorporeal heriditament, Funk v. Haldeman, 53 Pa. 229; Caldwell v. Fulton, 31 Pa. 475; as such, it cannot be taxed as real estate. The right to enter on land and manufacture roofing slate therefrom as long as suitable material may be found is not taxable as real estate, and the landlord is hable for the tax assessed against the quarry. Hughes v. Vail, 57 Vt. 41; s. c. 1 East. R. 234.
    A tax is a burden or charge imposed in respect of the ownership of property, and, when this is under demise, the landlord is still chargeable because he receives the equivalent in rent. 1 Taylor on Landlord and Tenant, § 341, note.
    
      H. J. Steele, for defendant in error.
    The answers to the first and second points must be considered with reference to the facts. But if construed as a denial of the rule that the landlord is liable for the taxes, they are immaterial, because not raised in the case, for it is admitted that the landlord paid the land' tax. An answer which could do the plaintiff no injury is no ground for reversal. Chase v. Habbard, 99 Pa. 226; Bush v. Stowell, 71 Pa. 208.
    The landlord paid the taxes assessed against the land in the condition in which the premises were at the time of the execution of the lease. The taxes which the tenant endeavors to defalcate against the landlord’s claim for rent were assessed against the Monarch Slate Co. upon their quarry, machinery and improvements, and the lease is silent as to taxes.
    The lessee is only entitled to charge the landlord with the taxes upon the original value of the property. Wood on Landlord and Tenant, 693. And this is so even where there is a covenant by the landlord to pay taxes. Hyde v. Hill, 3 Term R. 211; Watson v. Home, 7 B. & C. 285; Whitfield v. Brandwood, 2 Stark. 440; Watson v. Atkins, 3 B. & A. 647; Graham v. Wade, 16 East, 29.
    This principle does not conflict with § 6 of the Act of April 3, 1804, Purd. 1012, which provides that “every tenant who may or shall occupy or possess any lands or tenements shall be liable to pay all the taxes which during such occupancy or possession may thereon become due and payable,” and defalcate the same from the rent due tbe landlord. Tbe language of tbe Act is clear and refers expressly to tbe land tax. Francisco v. Riegert, 4 Watts, 98.
    In tbe description of tbe grant, there are no limits fixed upon tbe extent to wbicb slate may be taken from the land. It is entirely different from tbe mere license in Funk v. Haldeman, 53 Pa. 229. A license is said to be a personal privilege wbicb cannot be transferred, while tbe language of this lease gives tbe grantee complete dominion over the premises. It is more like tbe grant in Caldwell v. Fulton, 31 Pa. 483.
    Hughes v. Vail, supra, was a mere license to quarry slate and tbe court simply held that, in such eases, tbe quarry must be assessed as realty in tbe name of the grantor.
    By tbe agreement of tbe parties, the machinery was tbe personal property of tbe lessee and liable to be taxed as such. Watts v. Lehman, 107 Pa. 106.
    If tbe tenant in this case paid taxes which were wrongfully assessed against him, bis remedy was to have resisted tbe assessment.
    March 15, 1889.
   Per Curiam,

Judgment affirmed.  