
    FREER v. STOTENBUR.
    June, 1866.
    Reversing 36 Barb., 641.
    The lessor or reversioner, under a lease of lands for agricultural purposes, has a right of action for the injury done to the inheritance by the wrongful removal of stone from a quarry on the lands.
    Such a lease, especially where it is accompanied by a license to the lessee to remove stone yielding a share thereof to the lessor, does not pass to the lessee the right to work the quarry, as lessee, even though it be one that was opened and worked before the lease was made.
    A judgment recovered by a tenant, in an action against a trespasser who justified under a void tax sale of the premises, is conclusive against the same defendant, on the question of the validity of the tax sale, when interposed in another action brought by the reversioner to recover for the injury to the inheritance.
    
    George G. Freer and Cynthia Ann, his wife, and John T. Durkee, sued Abram Stotenbur, in the supreme court, to recover the value of certain stone, taken by defendant from land owned by the plaintiff Cynthia and leased by the plaintifi Durkee.
    In 1839, one Watkins owned the land in question, consisting of a farm of about one hundred and twenty-five acres. He leased it for twenty years to John T. and Asher S. Durkee. The lease was at a rent of fifty dollars per year and taxes, and required the lessees to build a small house on the land; to reserve and protect twenty acres of the best timber on fifty acres; to sell none, and to protect all the timber on the remaining seventy-five acres; to clear land, fence it, destroy weeds, plant fruit trees; to sow no flax, plow no meadow; commit no waste; keep buildings and fences in repair.
    Indorsed upon this lease, under the same date as the lease, was a license from Watkins to the lessees, to get or sell stone off the premises, by yielding Watkins one-half the stone sold by them.
    Asher S. Durkee subsequently assigned his interest in the lease to John T. Durkee; and Watkins died in 1851, devising the land to his widow, Cynthia Ann Watkins.
    In 1844, the trustees of the village of Havana, within the limits of which part of the land lay, assessed it for the expenses of certain local improvements, and the assessment remaining unpaid, the village authorities sold the land for nonpayment, to one Tracy, for the term of nine hundred and ninety-nine years, and conveyed, or leased it to him accordingly. Upon the part thus sold was a ledge or quarry, mainly in the highway, from which stone had been taken at various times, commencing at a period long before the making of the lease by Watkins to Durkee. Tracy, who bought the premises at the tax sale, conveyed them to one Cook, who licensed the defendant, Stotenbur, to quarry and carry away stone.
    The owner, Mrs. Watkins, and the lessee, Durkee, claimed that the assessment was void, for some irregularity; and an action of trespass was first brought, in the name of Durkee, the lessee, against Stotenbur, to recover damages for breaking his close and removing the stone. Stotenbur justified under the tax sale and license from Cook, the grantee of Tracy, and Durkee insisted that the tax sale was void, and prevailed "in the action; but he only recovered six cents damages, together with costs.
    Mrs. Watkins, the devisee of the reversion, took an assignment from her husband’s executors of all the remaining assets of the estate, and also assigned to Durkee one undivided half of all claims for stone taken from the premises.
    Meanwhile, she had married George G. Freer, and they, with Durkee, brought this action against Stotenbur.
    The referee before whom the cause was tried found the above facts, except that his findings did not describe the terms of the lease nor refer to the license indorsed, but merely stated that the lease was made “ for agricultural purposes.” He was of opinion that defendant did not acquire an adverse possession, even as against Durkee, for Durkee’s possession was not dissturbed, except as his fence was undermined by digging; (citing, Redfield v. The Htica & Syracuse R. R. Co., 25 Barb. 54; Stetson v, Veasie, 2 Fairf. 408 ;) and certainly not adverse as against the co-plaintiffs, under whose title Durkee claimed. 1 Hilliard’s Abr. 422, § 21; Jackson v. Hardenburgh, 4 Johns. 390; Clark v. Hughes, 13 Barb. 147. He was also of opinion that the judgment against defendant in the action of Durkee, the tenant, estopped defendant from contesting the validity.of the tax sale as against the reversioner in the present action, but did not bar the present action, because the reason why only nominal damages were recovered in the former action was, that for the damage to the freehold the reversioner must sue. He accordingly gave judgment for the actual damage to the inheritance, with interest from the commencement of the action, not for the value of the stone after removal.
    
      The supreme court, at general term, reversed this judgment. They were of opinion that a tenant for life, or for years, or for a single year, has the right to work a mine or quarry that has been worked and is open at the commencement of his tenancy; for it has become the mere annual profit of the land. See Taylor Landl. & T. §§ 774, 776, 784,165; 5 Coke Rep. 12; 1 Cow. 468, 474; 1 Platt on Leases, 21; Woodfall Landl. & T. by Harrison, 463; Willard Eq. p. 373.
    If the mine or quarry be not open, the tenant cannot work it unless the right to do so is expressly granted by the owner of the reversion. But when it is open, a lease of the land in which it exists, in general terms, carries the right to the lessee to work the same. They, however, placed their decision upon the ground that the plaintiffs were not entitled to recover, for the reason that the right of action for the quarrying or taking away the stone was vested in the lessees named in the lease, or whoever had their interest in it. The right to recover for damages done in the removal of stone belonged to Durkee as tenant under the lease, and not as assignee from the owners of the fee.
    From their order granting a new trial, plaintiffs appealed, stipulating that if it should be affirmed, judgment absolute might be rendered against them. Pending the action Mrs. Freer died, and her husband and Orlando Hurd, executors, were substituted for her as plaintiffs.
    
      John H. Reynolds, for plaintiffs, appellants;
    
      Cited Bacon 
      
      Abr. Waste, C, 3; 2 Roll Abr. 816; Moyle v. Moyle, Owen, 66; 5 Coke, 12; Van Deusen v. Young, 29 N. Y. 9; 1 R. S. 750, § 8; 13 R. S. 5 ed. 39; Schermerhorn v. Buell, 4 Den. 422; 1 Saunders, 312, note 5; Jesser v. Gifford, 4 Burr. 2, 141; Repta v. Sergeant, 7 Watts & S. 1; Livingston v. Mott, 2 Wend. 605; Evans v. Evans, 2 Camp. 491; 2 Maule v. Selwin, 499; Taylor on Landlord and Tenant, § 774; Dayt. Surr. 2 ed. 280; Murray v. Blatchford, 1 Wend. 583; Bogart v. Hertell, 4 Hill. 492, 510; McKeen v. Judd, 12 N. Y. (2 Kern.) 622, 624; Gillet v. Fanchild, 4 Den. 80; Van Wilklen v. Parslen, 14 Barb. 656; 2 Kent Com. 351; Zabriskie v. Smith, 13 N. Y. (3 Kern) 322, 324; Gode § 111; Morgan v. Varick, 8 Wend. 591; Forrest v. Thompson, 5 Barn. & A. 826; 1 Chitty Pl. 10 Am. ed. 156.
    
      Francis Kernan, for defendant, respondent;
    Cited, 18 N. Y. 337; Bourne v. Taylor, 10 East, 189; Coates v. Cheever, 1 Cow. 460, 474, 476-477; Neel v. Neel, 19 Penn. 323, 327, 328, and eases cited; Irwin v. Covode, 24 Id. 162; Billings v. Taylor, 10 Pick. 460; Stoughton v. Leigh, 1 Taunt. 402; Saunder's Case, 5 Coke. 12; Willard Eq. Jur. 372, 373; Taylor's Landlord and Tenant, §§ 774, 776, 784, 165 ; 1 Platt on Leases, 21; Woodfall’s Landlord and Tenant, by Harrison, 463; Attersoll v. Stevens, 1 Taunt. 183, 198; Cook v. Champ. Trans. Co., 1 Den. 91, 104; 1 Taunt. 200, 201; 108-203 ; 4 Kent, 1 ed. 77; 1 R. 8.1 ed. p. 750, § 8; 3 R. 8. 5 ed. p. 30, § 8; Gode, §§ 144, 148; Van Deusen v. Young, 29 N. Y. 9, 26; Morgan v. Varick, 8 Wend. 587; Holmes v. Seely, 19 Id. 507; Frost v. Duncan, 19 Barb. 560; Green v. Clarke, 12 N. Y. (2 Kern) 343-345.
    
      
       See Boyer v. Schofield, vol. 1 of this series, p. 177, and Craig v. Ward, Id. p. 464.
    
   By the Court.

Davies, Ch. J.

This action was brought to recover the value of certain stone taken and removed by the defendant from lands owned by the plaintiffs testatrix, Cynthia Ann Freer, the daughter and devisee of Samuel Watkins, deceased. The co-plaintiff, John T. Durkee, was the lessee of said premises, but as the action proceeded only for the injury to the reversionee, and no claim was made on the trial for the damages to the lessee, he may be regarded as an unnecessary party, and his name can be stricken from the record. Gode, § 173. '

[The learned judge here stated the findings of the referee.]

The judgment was not reversed on questions of fact. This court, therefore, is confined in its examination of this appeal to the injury, whether, upon the facts found by the referee, the plaintiffs were entitled to recover, and secondly, whether any errors were committed by the referee, in the admission or rejection of evidence, and also, whether the motion for a nonsuit was properly refused. The motion for a nonsuit was based mainly upon the ground that the stone taken belonged to the ° tenants or holders of the lease, and not to the owner of the inheritance or reversionee. It is clear, that, if this position be tenable, the plaintiffs could not recover in this'action, as it appeared, and was not controverted, that Durkee, the lessee, had recovered nominal damages against this defendant for the injury which he as tenant had sustained.

This action is maintained under the provisions of the Revised Statutes, which declare that a person seized of an estate, in remainder or reversion, may maintain an action of waste or trespass for any injury done to the inheritance, notwithstanding any intervening estate for life or years. 3 R. S. 5 ed. p. 39, § 8; Van Deusen v. Young, 29 N. Y. 9; Schermerhorn v. Buell, 4 Den. 422. The reversioner has, therefore, clearly sustained an injury to the value of the stone taken and carried away, unless the position assumed by the defendant be correct— namely, that the stone belonged to the tenant or lessee, in which event no action can be maintained by the reversioners for their possession. This ground is sought to be maintained upon the finding of the referee, that stone had been taken from said ledge,—that is, the ledge upon the premises of the reversionee,—at various periods for thirty years past, at different points along the same; and the authority of Saunders’ case, 5 Coke, 12, and the various cases in which the doctrine there laid down has been affirmed, are invoked as sustaining it.

Assuming, therefore, that this quarry or ledge was open at the date of the lease to Durkee, does it follow, upon the authority of Saunders’ case, that he was entitled to the stone therein by virtue of his lease ? It is to. be observed, that the premises were leased to Durkee fox agricultural purposes; and this would seem, to exclude, by the terms of the lease, the right to take and quarry stone from the lands demised.

In Saunders’ case, he brought an action of waste against Manwood, assignee of the lessee of the tenements, for waste done in digging sea coals; and, on great deliberation, it was resolved, That if a man 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 in it; for inasmuch as the mine is open at the time, &c., and he leases all the land, it shall be intended that the intent is as general as his lease is,—namely, that he shall take the profit of all the land, and, by consequence, the mine in it.

Now it is seen that the principle of this case is inapplicable to that now under consideration. No such intendment can arise in this case as was found in that, for here the land was leased for a particular puipose or object, and by the express terms of the lease, its enjoyment ,by the lessee was limited to the defined use—namely, for agricultural purposes. It cannot therefore be intended that under the lease to Durkee, he should take the profit of all the land, and of the quarries and mines upon it. His estate and interest were limited and defined, and he took therein only what was necessary for its use and enjoyment for agricultural purposes ,• and the intendment which the, case might raise when the lease contained no specification or restriction, as to the use of the demised premises, is rebutted in this case, by the indorsement made on the lease at the time of its execution, and which must be deemed and taken as part thereof—namely, the authorization by the lessor, that the lessees might get or sell stone off the premises described in the lease, by yielding to the lessor one-half of the stone sold by them.

This position is enforced and illustrated by the case of Schermerhom v. Buell, supra. The lease there contained a clause in these words: “ All the timber in the southeast cor-' ner of about five acres, suitable and proper for fuel, to he left and not cleared.” The lot was wild and uncultivated at the date of the lease. The defendant entered and cultivated most of the land, and on the five acres in the southeast corner of the lot he cut some trees which were suitable and proper for fuel, and carried away the timber. For that wrong, that action was brought by the plaintiff, the owner of the land and the lessor. It was held that the lessor had the right, both of property and possession, in the trees, and that he might sue whenever they were carried away and converted to the use of another.

In the case at bar, the lease being a demise of the land for agricultural purposes only, it did not pass to the lessee the right to take and carry away the stone in the quarry upon the demised premises, although the same had been opened anterior to 'the granting of the lease, and consequently the properly therein remained in the lessor, and the removal thereof was an injury to the inheritance.

As to that portion of the stone taken by defendant, before the death of "Watkins, the devisor of plaintiffs’ testatrix, the right thereto was assigned to Mrs. Finer by the executors of Watkins, and could be rightfully recovered in this action.

The only question, therefore, remaining, is whether the defendant showed any title to the premises from which the stone were taken. He justifies the taking and conversion of the stone on the ground that he had such title. That title was derived through a sale by the trustees of the village of Havana, to pay an assessment for the grading and improving of Steuben street, in said village, upon which street said premises were bounded; and such assessment not being paid or collected, the trustees, claiming to act under the authority of. the charter of said village, proceeded to sell the same to pay said assessment;

and at such sale, the premises from which said stone were taken, were sold to one Tracy for the term of nine hundred and ninety-nine years, and a conveyance executed to him therefor, and he subsequently conveyed the same to one Charles Cook; and the defendant took said stone, with the leave and license of said Cook.

In the suit commenced by Durkee, the lessee, against this defendant, for the recovery of the value of the same stone, it was adjudged, that said sale and all the proceedings thereon were invalid and void, and conferred no title upon said Cook; and the referee in this action found, as a conclusion of law, that, by the judgment aforesaid, it was determined that the same corporation sale was void and did not protect the defendant, and that such adjudication was binding upon the defendant in this action. This judgment is binding on this defendant, upon this question, and he cannot be permitted again to litigate the validity of these proceedings, and of the title acquired by the assessment sales under them. Embury v. Conner, 3 N. Y. (3 Comst.) 511; White v. Coatsworth, 6 N. Y. (2 Seld.) 137; Castle v. Noyes, 14 N. Y. (4 Kern.) 329. These authorities clearly establish the proposition that this defendant cannot again litigate the validity of that sale, and the title of his licensor under it.

The order granting a new trial should be reversed, and judgment on the report of the referee affirmed, with costs.

All the judges concurred.

Order for new trial reversed, and judgment on the report of the referee affirmed, with costs.  