
    Dwight B. Baker et al., Resp’ts, v. Charles Hart et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 2, 1890.)
    
    1. Lease — Bight to mine gives no bight of action against tbesPASSEB.
    A right to mine or quarry, restricted and limited by time or quantity, does not transfer ownership of the land. In such a case all of 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. And such lessee would have no right as owner to recover from trespassers the value of stone taken by them.
    2. Same—Waste.
    The rule 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, applies to the case of a tenancy, but is inapplicable where not an estate, but a mere incorporeal hereditament is transferred.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff.
    
      Jesse Johnson, for app’lts; Alex. II. Butts and C. P. Hoffman, for resp’ts.
    
      
       Reversing 24 N. Y. State Rep., 362.
    
   Finch, J.

The 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 the 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 any part of said lands for any other purposes.” Other provisions were in accord with the right conveyed and limited and bounded the plaintiffs’ 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. & Ald., 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 miglit 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 of 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 casé 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 ho 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 suffered substantial damage, 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 concur.  