
    BAKER v. HART.
    
      N. Y. Court of Appeals;
    
    
      December, 1890.
    [Reversing 52 Hun, 363, s. c. 24. State Rep. 362.]
    1. Lease ; right to quarry ; title to stone.] A lease from the owner of land, giving the lessees “ The sole and exclusive right to enter in and upon the lands .... for the purpose of quarrying, cutting, crushing and removing stone for the term of ten years, .... but not to hold possession of any part of said lands for any other purposes,” does' not transfer the land, but gives to the lessees only an incorporeal hereditament,—the right to take the stone from the land,—and the title to the stone passes to the lessees only upon its actual severance from the land
    
    2. Conversion; title to unquarried stone.\ Trespassers who enter upon such land to quarry and carry away the stone, cannot be held'Jiable to the lessees in conversion for the value of the stone, because the lease gives them no ownership in the stone before it is quarried.
    3. Waste ; who-may maintain actionl\ The rule which gives a tenant for years a right to protect the leased premises against waste does not apply where not an estate, but a mere incorporeal hereditament is transferred, and the owner remains in possession.
    Appeal from a judgment of the general term of the supreme court in the second department, which affirmed a judgment entered on a verdict for the plaintiffs.
    Dwight B. Baker and James Keegan brought this action against Charles Hart and John Hart, for conversion of granite blocks.
    The plaintiffs claimed title to the blocks in question by virtue of a so-called lease to them by James C. Conklin of the “ sole and exclusive right of entering in and upon the lands hereinafter described, for the purpose of quarrying, cutting, crushing and removing stone for the term of ten years from the date hereof, but not to hold possession of any part of said lands for any other purposes, yielding and paying therefor to the party of the first part the sum of $400 in advance, for each and every year of the said term,” the lessees “ to have the right of placing upon said premises such machinery and appliances as may be necessary for the proper conduct of said quarrying operations, and one stone-crusher, and to remove the same at the end of the said term; also a right of way for persons, horses and vehicles with loads or otherwise for the purpose of the operation of said quarry, and the removal of such stone therefrom, to cross and recross the lands of the party of the first part upon a feasible route to be designated by him from the said quarry to the Quacktown road and along the right of way as designated in the deed to the party of the first part from Charles C. Suffern, administrator,” etc. The lessees covenanted that the said premises shall not be used and no damage or injury shall be done thereon other than is necessary in conducting said operations in a workmanlike manner and without unnecessary waste or injury to the property; “ to place the refuse accumulated in the work at such place as the lessor should designate ; to cut the wood necessary to be removed and rank it for the use of the lessor. The lease also contained a clause providing that the lessees should not let or grant any part of said premises or rights therein given, or assign this lease or any rights hereunder,” without the lessor’s consent, and the usual provision for re-entry by the lessor in case of default in payment of the rent, and for surrender of the “ premises in as good state and condition as reasonable use thereof for the purposes aforesaid will permit.” The lessees also pledged and mortgaged to the lessor as security for the rent “ all the personal property, and quarried stone which may be on the premises,” with the right to sell the same and apply the proceeds to the payment of the rent in arrear.
    The plaintiffs claimed that the defendants had entered upon the leased premises, and quarried, cut and carried away stone therefrom, and converted the same to their own use. The plaintiffs having admitted at the trial that their only title to the stone was under the said lease, the defendants moved to dismiss upon he ground that the lease gave the plaintiffs only the exclusive right to enter upon the lands for purpose of quarrying and removing stone, and that they acquired no title to the stone which they themselves had not quarried out, crushed and removed. The motion was denied, and an exception taken.
    Plaintiffs were allowed to prove, against objection, the value of the stone in the New York market after it had been taken to New York. The plaintiffs recovered a verdict and from the judgment entered thereon, the defendants appealed.
    The general term (Dyicman and Pratt, JJ.) affirmed the judgment, holding that the “ defendants were trespassers and wrong-doers, and as such, appropriated the stone to which the plaintiffs had a right. They had an interest in all the stone in their quarry, and that was their only source of profit under their lease, and such interest gave them a right of action for the wrongful conversion of the stone in question by the defendants,” and that the plaintiffs were entitled to recover the value of the stone as enhanced by the wrong-doer in cutting and carrying the same to the market (citing Year Books, 5 Hen. 7, fol. 15 ; 2 Bl 
      
      Com. 404; 2 Kent Com. 363 ; Betts v. Lee, 5 Johns, 348 ; Baker v. Wheeler, 8 Wend, 505 ; Silsbury v. McCoon, 3 N. Y. 379; Guckenheimer v. Angevine, 81 Id. 397).
    From the judgment of affirmance at the general term, defendants took this appeal.
    
      Jesse Johnson (Johnson & Lamb, attorneys), for the •defendants, appellants.
    The plaintiffs showed no ownership of the stone. The document relied on gave them only an exclusive right of entry for purpose of quarrying, etc., and furthermore they expressly covenanted not to let or grant or assign any part of the premises or rights given under the document, the rights were limited to ten years, and lessor reserved the right of entry for failure to pay rent, thus showing that their interests were not assignable, and were little more than a personal privilege for a limited term (Grubb v. Bayard, 2 Wall, Jr. 81; 2 Washb. on R.P. 4 ed. 376; Doe v. Wood, 2 B. & Ad. 724, 738 ; Clement v. Youngman, 40 Pa. St. 341; Bainbridge on Mines, 266; Sheph. on Touch. 96).
    The jury might have found that defendants’ entry was through a mistake of boundary and inadvertent. The cases relied on by plaintiffs as to measure of damages (Baker v. Wheeler, 8 Wend, 505 ; Betts v. Lee, 5 Johns. 348; Curtis v. Groat, 6 Id. 168 ; Babcock v. Gill, 10 Id. 286; Brown v. Sax, 7 Cow. 95), were cases of wilful conversion. It is expressly held in Railway v. Hutchins, 32 Ohio St. 571 ; 37 Id. 282, that “ it is now perfectly well settled that in case the trespass or conversion is by mistake, the plaintiff is not entitled to any accession of damages by reason of the labor or skill of the wrong-doer. See article in Central L. J. 444 ; Lee v. Matthews, 10 Ala. 682 ; Whitney v. Beckford, 105 Mass. 267 ; Hilton v. Woods, L. R. 4 Eq. 440; Morgan v. Powell, 3 Ad. & E. (N. S.) 278; Wood v. Morewood, (Id.) 441 ; Martin v. Porter, 5 M. & W. 351 ; Forsyth v. Wells, 41 Pa. St. 291 ; Herdic v. Young, 55 Id. 176; Coleman’s Appeal, 62 Id. 252 ; Barton Coal Co. v. Cox, 39 Md. 1; Goller v. Fett, 30 Cal. 485 ; Stockbridge Iron Co. v. Cove Iron Co. 102 Mass. 80 ; United States v. Magoon, 3 McLean C. Ct. 171 ; Heard v. James, 49 Mass. 236; Wetherbee v. Green, 22 Mich. 311 ; Hyde v. Cookson, 21 Barb. 92; Silsbury v. McCoon, 3 N. Y. 379. The English decisions sustain the same rule; Martin v. Porter, 5 Mee. & N. 351; Morgan v. Powell, 3 Ad. & E. N. S. 278 ; Wood v. Morewood, 3 Id. 440; Hilton v. Woods, L. R. 4 Eq. 432; Livingstone v. Rowyard’s Coal Co. 5 Abb. Cas. 25. See also Single v. Schneider, 30 Wis. 570; Ward v. Benson, 31 How. Pr. 411, 419; Coal Creek Mining Co. v. Moses, 54 Am. R. 415 ; s. c., 15 Lea. 300; Franklin Coal Co. v. McMillan, 33 Am. R. 280; s. c., 43 Md. 549 ; Emma Silver Mining Co. v. Parks, 14 Blatchf. 411.
    
      Alexander B. Butts, for the plaintiffs, respondents.
    
      
       See note at end of this case.
    
   Finch, J.

complaint in this action alleged that the plaintiffs were the lessees of a lot of land containing twenty-five acres; that under said lease they had the sole and exclusive right of entering upon the leased lands for the purpose of quarrying, cutting, crushing and removing stone therefrom; that defendants wrongfully entered upon the premises and quarried stone belonging to the plaintiffs, and had converted same to their own use ; and that the plaintiffs had thereby suffered damage which they claimed to recover.

Upon the trial, the plaintiffs produced their lease from the owner of the land. ’ It gave to them the “ sole and exclusive right of entering in and upon the lands ......for the purpose of quarrying, cutting crushing, and removing stone, for the term of ten years......but not to hold possession of said lands for any other purposes.” Other provisions were in accord with the right conveyed and limited, and bounded the plaintiff’s use. The lease, therefore, did not transfer the land, but gave to the plaintiffs an incorporeal hereditament, a right to take stone from the land which became theirs only upon its actual severance. What they should quarry and remove within the restricted term became theirs, but what they did not quarry out and sever from the land remained the property of the owner of the fee (Grubb v. Bayard, 2 Wall. Jr. 81; Doe v. Wood, 2 B. & Aid. 724; Clement v. Youngman, 40 Pa. 341 ; Caldwell v. Fulton, 7 Casey, 480; Arnold v. Stevens, 24 Pick. 106).

A right to take all the stone on the land without restriction in time or quantity might readily be held to transfer its ownership, but I have found no case which asserts such entire and complete title in the lessee where there was merely a right to mine or quarry restricted and limited by time or quantity. In such a case all the stone on the premises does not pass to the lessee, but only such and so much as within the boundaries of his right he cuts and quarries.

The defendants were of course trespassers. They entered upon the premises without right and cut and carried away a quantity of stone. The plaintiffs, under objection, were allowed to prove the value of the stone and to recover that value, on the theory that they owned it. But they did not. Their lease gave them no title to it. They did not cut or quarry it, and the ownership remained in their lessor. Undoubtedly the act of the defendants was an infringement of their rights, for which they could recover such damages as-they in fact sustained. But they proved none. If the limits of their lease would have exhausted all the stone on the twenty-five acres, then certainly they would have lost the value of what was wrongfully removed ; but if the supply was such that there remained for them, all and more than they could quarry or remove,, they at least lost no stone which they were entitled to have, for enough remained to fully satisfy their entire right. The injury in such a case would fall upon the lessor, whose property had been taken.

It may be that the lessees were in some manner or to some extent injured by the trespass of the defendants, although stone enough remained to satisfy the exigency of their contract. We do not know how that may be in the absence of proof, and therefore may prudently refrain from any suggestions about it. . It is enough for present purposes that the plaintiffs established no ownership of the stone and no right to recover its value as owners, and so the judgment rendered was erroneous.

But it is sought to be sustained on another theory. The doctrine is invoked that a tenant for life or years is bound to answer to the owner for any waste committed, even though it be the act of a stranger. Such is undoubtedly the rule (Cook v. Champlain Transportation Co., 1 Denio, 91, 104). But it applies to the case of a tenancy. It proceeds upon the ground that the leased premises have passed into the possession of the tenant, so that an entry, unless under some special reservation, by the lessor himself, would be a trespass. The latter cannot protect the premises because for the time being he has parted with the possession and entrusted it to the lessee, and the latter having become the custodian and possessor of the land, comes under an implied obligation not to commit waste upon it, and not to permit others to do so. But the rule and its reason are alike inapplicable where not an estate, but a mere incorporeal hereditament is transferred. Here the owner remained in possession and conveyed, not his land, but an easement in it, and could protect his own possession against trespassers like the defendants. The plaintiffs covenanted to conduct their operations in a workmanlike manner, and without needless waste or injury, and so became liable for their own acts, but beyond this they incurred no implied obligation to protect the premises from trespassers, and were in no manner made its guardians. The lessor remained in possession, and had as clear a right to sue the defendants for their trespass as if he had never given an easement to the plaintiffs. And so I discover no ground upon which the plaintiffs can be deemed owners of the stone, and therefore entitled to its value. Their exclusive right has been invaded, and if thereby they have sustained substantial damages, they must establish it by their proof. If they can show none they may at least be entitled to nominal damages in vindication of their right.

The judgment should be reversed, and a new trial granted, costs to abide the event.

All the judges concurred.

Note on Mining and Exploitation Leases.

The following recent cases will furnish useful practical suggestions on the best mode of drafting such instruments.

Relation and general rights of the parties. Wheeler v. West, 71 Cal. 126 ; s. c., 11 Pac. Rep. 871; Duff’s appeal, (Pa.) 12 Cent. Rep. 544 ; s. c., 14 Atl. Rep. 364; 21 W. N. C. 491; McElwaine v. Brown, (Pa.) 9 Cent. Rep. 789 ; s. c., 11 Atl. Rep. 453 ; Montooth v. Gamble, 123 Pa. 240; s. c., 19 Pitts. 4; 46 Phila. Leg. Int. 169; 23 W. N. C. 252 ; 16 Atl. Rep. 594; Woodward v. Delaware, L. & W. R. Co. 121 Pa. 344; s. c., 22 W. N. C. 292; 15 Atl. Rep. 622 ; Bedford’s Appeal, (Pa.) 17 Atl. Rep. 538 ; Raisbeck v. Anthony, 73 Wis. 572; s. c., 41 Northwest. Rep. 72; Eaton v. Wilcox, 42 Hun, 61; First Nat. Bank of Richberg v. Dow, 41 Hun, 13 ; s. c., 2 State Rep. 170; Fairchild v. Fairchild, (Pa.) 7 Cent. Rep. 873 ; Sullivan v. Spotswood, (Ala.) 2 South Rep. 716; Peters v. Phillips (Iowa), 19 Northwest. Rep. 663; Sanderson v. Scranton, (Pa.) s. c., 41 Phila. Leg. Int. 388; Vanatta v. Brewer, 5 Stew. (N. J.) 268 ; Heck v. Borda, (Pa.) 8 East. Rep. 723; Duffield v. Hue, (Pa.) 18 Atl. 566; Hudepohl v. Liberty Hill Con. Min. & Water Co. 80 Cal. 553 ; s. c., 22 Pac. Rep. 339 ; Genet v. Del. etc. Canal Co. 4 N. Y. State Rep. 880 ; s. c., 56 N. Y. Super. Ct. 27 ; Armsley Coal Co. v. Besturck, (Pa.) 18 Atl. Rep. 538 ; Stoddard v. Emery, (Pa.) 18 Atl. Rep. 339; s. c., 24, W. N. C. 566 ; Galey v. Kellerman, 123 Pa. St. 491 ; s. c.., 16 Atl. Rep. 474 ; 23 W. N. C. 139; Childs v. Hurd, 32 W. Va. 66; s. c., 9 Southeast. Rep. 362 ; Westmoreland & Cambria Nat. Gas Co. v. DeWitt, (Pa.) 18 Atl Rep. 724; Erwin's Appeal (Pa.) 9 Cent. Rep. 678 ; s. c., 12 Atl. Rep. 149; 20 W. N. C. 278. See also, 31 Moak's Eng. 159; 10 Am. St. Rep. 553.

Obligation to work.] Ray v. Hodge, 15 Or. 20 ; s. c., 13 Pac. Rep,. 599; McIntyre v. McIntyre Coal Co. 105 N. Y. 264 ; s. c., 7 Cent. Rep. 335 ; 11 Northeast. 645 ; Flynn v. White Breast C. & M. Co., 72 Iowa, 738 ; s. c., 32 Northwest. Rep. 471.

Royalty 011 what computed.~\ Muhlenberg v. Henning, 116 Pa. 128; 8 Cent. 134 ; 9 Atl. Rep. 144; 19 W. N. C. 370; Ray v. Hodge, 15 Or. 20; s. c., 13 Pac. Rep. 599; Brushwood Developing Co. v. Hickey, (Pa.) 16 Atl. Rep. 70; Tucker v. Linger, 49 Law Times R. N. S. 373 ; aff'g. 21 Ch. Div. 18; Gribben v. Atkinson, (Mich.) 7 Western Rep ; 867; Appeal of Truby (Pa.), 10 Eastern Rep. 497 ; Trotter v. Heckscher (N. J.) 5 Cent. Rep. 644; Flynn v. White Breast Coal Co., (Iowa), 32 Northwest. Rep. 472.

Ratel\—Bamford v. Lehigh Zinc & Iron Co. (C. C. S. D. N. Y.), 33 Fed. Rep. 677; McCahan v. Wharton, 121 Pa. 424; s. c., 46 Phila. Leg. Int. 169 ; 22 W. N. C. 491; 15 Atl. Rep. 615.

Effect of purchase^ Flynn v. White Breast C. & M. Co., 72 Iowa, 738; s. c., 32 Northwest. Rep. 471.

Revocation.] Tipping v. Robbins, 71 Wis. 507; s. c., 37 Northwest. Rep. 427 ; Wis. Rev. Stat. § 1647 ; Eaton v. Alleghany Gas Co., N. Y. 1890; 34 State Rep. 51 ; rev’g 3 Id. 505 ; Krum v. Mershe (Pa.), 7 Cent. Rep. 880.

Ormsby Coal Co. v. Bestwick (Pa.) 18 Atl. Rep. 538.

Forfeihirel\ ‘Hoch’s Appeal (Pa.) 24 W. N. C. 27 ; s. c., 17 Atl Rep. 512; Galey v. Kellerman, 123 Pa. 491 ; s. c. 46 Phila. Leg. Int. 221; 19 Pitts L. J. N. S. 279; 23 W. N C. 139; 16 Atl. Rep, 474; Sunday Lake Mining Co. v. Wakefield, 72 Wis. 204; s. c., 39 Northwest. Rep. 136 ; Smith v. Miller (N. J.) 10 Cent. Rep. 649 ; Miller v. Chester Slate Co. (Pa.) 18 Atl, 565 ; Hoch v. Bass, (Pa.) 17 Id, 512 ; (Washington Natural Gas Co. v. Johnson, (Pa.) 16 Id. 799).  