
    Josiah Arnold vs. The Richmond Iron Works.
    The plaintiff, who was the lessee for years of an ore bed, having entered into an agreement, under seal, to supply the defendant with a specified quantity of the ore, annually, at a certain price, with a stipulation, that if the plaintiff should at any time refuse, or not be able, to dig or raise the ore, at a fair price, the defendant should have liberty to employ others to dig or raise it for him; it was held, that the plaintiff, if he should neglect to dig or raise the ore, according to the terms of the lease, could not maintain an action of trespass on the case, sounding in tort, against the defendant, for entering the premises and digging and carrying away ore.
    This was an action of trespass on the case, tried before Fletcher, J., and by him reserved for the consideration of the whole court.
    
      The writ was dated March 22d, 1849, and contained two counts.
    In the first count, it was alleged, that the defendants, on the 15th of April, 1843, and on divers other days, &c., entered upon certain premises situated in West Stockbridge and Richmond, called the Cone ore bed, to the exclusion of the plaintiff, and the utter denial of his right to dig and carry away the iron ore from the premises, and that the defendants unlawfully dug and carried away all the iron ore on said premises, and disturbed and hindered the plaintiff in the enjoyment of his rights thereto.
    The second count contained a statement of a like injury to the plaintiff’s right to the iron ore in certain other premises situated in West Stockbridge, called the Lane ore bed.
    The respective rights of the parties, in the ore bed mentioned in the first count, depend upon the terms and conditions of an indenture of November 24th, 1830, between Benjamin Cone, of the one part, and Eli Richmond and Isaac Nicholson of the other; and an indenture of March 3d, 1831, between Samuel Gates and others, of the one part, and Richmond and Nicholson of the other.
    By the first indenture, Cone demised to Richmond and Nicholson a tract of land in West Stockbridge and Richmond, for the term of one thousand years, “ for the purpose of searching for, digging, raising, depositing thereon or carrying from thence all iron ore, or other metals or minerals, on or from said premises, with the full and perfect right at all times of the right of way, in the most convenient and proper place, for the purpose of digging, drawing, or carrying from thence all the ore or minerals that may be found thereon.”
    The lessees covenanted, that they would weigh all the ore and keep a just account of the same, when taken from the premises, and pay the lessor fifty cents a ton for each and every ton, when carried away.
    The lessees also agreed, that they would dig or cause to be dug and taken such quantities as should be suitable and proper, commencing without unreasonable delay; and that in ease they should cease or neglect to improve the ore bed, at any one time, for the space of one year, then the lessor should have the right to repossess the premises, and improve the same for his own use and benefit.
    By the second indenture, Richmond and Nicholson agreed with Gates and others, to sell them all the ore which they might raise or dig on the premises above mentioned, upon the following terms and conditions, namely: that Gates and others should receive of Richmond and Nicholson four hundred tons annually, or more, if the parties should agree for a greater quantity, for which Gates and others should pay Richmond and Nicholson a duty of fifty cents a ton, in addition to the fifty cents a ton which they had agreed to pay Cone; and that so long as Gates and others should receive from Nicholson and Richmond four hundred tons annually, they should not sell any ore from the premises to any other person whatever.
    This covenant was subject to the exception, that if Richmond and Nicholson should raise more ore on the premises than Gates and others should want to purchase, in any year, they might sell the overplus to any other persons besides Gates and others; but Gates and others should receive one half of the advance or benefit, which might arise on such overplus, over and above the duty to be paid to Cone, and to Richmond and Nicholson, and the expense of digging or raising it; and the other half of the overplus should go to Richmond and Nicholson.
    It was also agreed, that if Gates and others should at any time decline taking or receiving the four hundred tons of ore annually, as above stipulated, then Richmond and Nicholson should have full liberty to sell the ore which they might raise on the premises to any other persons, subject to the condition above named, so long as Gates and others should refuse to receive it, but whenever they should be willing to receive the four hundred tons annually, the conditions restricting the sale should be in full force.
    The parties further agreed, that if Richmond and Nicholson, or either of them should, at any time, refuse or not be able to dig or raise ore at a fair price, Gates and others should have liberty to employ other persons to dig nr raise it for them.
    
      The second indenture contained a further provision relative to the payment for the ore, not material to be stated in the present case.
    The plaintiff had succeeded to the rights acquired by Richmond and Nicholson under these instruments, and the defendants to the rights of Gates and others.
    The rights of the parties in'the ore bed mentioned in the second count depend upon the terms and conditions of an indenture of the 25th of April, 1832, between David R. Walling and others, of the one part, and James M. Holley and others, of the other part.
    By this instrument, Walling and others demised a tract of land in West Stockbridge to Holley and others, for the term of nine hundred and ninety-nine" years, “ for the purpose of searching for, digging, depositing thereon, and carrying away all iron ore, or other metals or minerals from thence, that may be found on said premises, with the full and perfect right of way in the most convenient place or places, and also the full and perfect right of way, and the use of all streams of water or water privileges in all places; for the purpose of washing and cleaning any part or parts of said minerals, as well as to dig and to drain all the mines that may be found thereon.” [t was agreed, that Holley and others, after the first year, which was to be experimental, should dig or cause to be dug the amount of three hundred tons, if the ore should be found to be good, for which they were to pay Walling and others, at the rate of seventy-five cents a ton; that they should keep an exact account of all the ore dug and carried away from the premises, and make .out and settle the same on the first of January in each year; that if Holley and others should choose, they might dig as much more as they pleased, paying therefor at the rate of seventy-five cents a ton; and that if at any time they should neglect to improve the premises for more than one year at any one time, then Walling and others should have the right to dig ore themselves, until Holley and others should choose to recommence operations, in which case, they should have the right to enter and improve the premises, whenever they should choose.
    
      The plaintiff has the rights of Walling and others, and the defendants those of Holley and others, under this indenture.
    It was in evidence on the part of the plaintiff, that the defendants had dug iron ore both on the Cone bed and the Lane bed, in each year, commencing in 1843 and ending in 1848.
    It was admitted, for the purposes of the case, that the defendants had not paid the plaintiff, or his grantors, any duty for ore taken from either the Cone or the Lane ore bed, since the 15th of April, 1843; that neither the plaintiff nor his grantors had ever made any claim or demand upon the defendants for any such payment from the 15th of April, 1843, to the time of bringing the action; that the plaintiff had never-offered to dig ore in the Cone bed, or expressed to the defendants any desire to be so employed, and that his grantors had not dug any in the Cone bed, or sought to do so, since 1843; and that neither the plaintiff nor his grantors had ever remonstrated against or opposed the operations of the defendants in either of the ore beds.
    The defendants contended, among other things, that whatever might be the plaintiff’s right and title in the premises described in his writ, he was not entitled to maintain against the defendants an action sounding in tort; and the presiding judge being of opinion, upon the facts proved or admitted, that the action could not be maintained, the case was thereupon taken from the jury, to be reported as above for the consideration of the whole court, who were to make such order in the case, as they might think proper.
    
      J Rockwell and J B. Woodruff, for the plaintiff.
    
      II. W. Bishop and H. W. Taft, for the defendants.
   Fletcher, J.

This action sounds wholly in tort, and to maintain it the plaintiff must show, that the defendants took and carried away the ore, as set forth in the declaration, from one or both of the ore beds described in one or both of the counts, wrongfully, without right on the part of the defendants, and in violation of the rights of the plaintiff.

The first count alleges, that the defendants, on the 15th day of April, 1843, entered upon certain premises situated- in West Stockbridge and Richmond, called the Cone ore bed, to the exclusion of the plaintiff and the utter denial of his rights of digging and carrying away the iron ore from the premises, and unlawfully dug and earned away all the iron ore therein and disturbed and hindered the plaintiff in the enjoyment of his rights.

Whether the plaintiff can recover upon this count must be determined by the provision in the second indenture, that if Richmond and Nicholson, or either of them, should, at any time, refuse or not be able to dig or raise ore at a fair price, Gates and others should have liberty to employ others to dig or raise it for them. The defendants have the rights of Gates and others. If the contingency has happened, upon which Gates and others, by the above provision, would have had the right themselves to take the ore from this ore bed, then the defendants, in taking ore from the bed, have not entered wrongfully, without right, and in violation of the rights of the plaintiff, who has only the rights of Richmond and Nicholson, the other party to the indenture.

But the case expressly finds, that the plaintiff had never offered to dig ore in the Cone bed, or expressed to the defendants any desire to be employed in such work, and that his grantors had not dug any ore in the bed, nor sought to do so, since 1843, and that neither the plaintiff nor his grantors had ever remonstrated against or opposed the operations of the defendants in either ore bed. Thus it appears, that as far back as 1843, and ever since, Richmond and Nicholson and the plaintiff entirely ceased to dig the ore at any price whatever, but wholly abandoned the business.

In this state of things, the defendants themselves, by the express provision of the indenture, had the right to dig and carry away the ore; and in doing so they did not act wrongfully, without right, or in violation of the rights of the plaintiff. Neither the plaintiff nor his grantors ever remonstrated against or opposed the operations of the defendants in either ore bed. The first count in the declaration, therefore, charging the defendants as wrong-doers in taking ore from the Cone ore bed, is not supported.

In the second count, the rlaintiff charges the defendants substantially with the same injuries and wrongs, as are set out in the first count, with respect to his rights in certain other premises situated in West Stoekbridge, called the Lane ore bed.

In regard to this ore bed, it appears, that by an indenture bearing date the twenty-fifth day of April in the year 1832, between Daniel R. Walling and others of the one part, and John M. Holley and others of the other part, Walling and others leased to Holley and others the land containing the ore, by metes and bounds, for nine hundred and ninety-nine years, for the purpose of digging and carrying away ore, for which Holley and others were to pay certain stipulated prices. The plaintiffs have the rights of Walling and others, under this indenture. The defendants have the rights of Holley and others, and have therefore in express terms the right to take and carry away the ore, and so cannot be held chargeable as wrongdoers under the second count in the declaration. As has been before stated, neither the plaintiff nor his grantors, have ever remonstrated against or opposed the operation of the defendants in either of the ore beds.

There is a provision in this indenture, that if Holley and others shall neglect to improve the premises for more than one year, at any one time, then the other party shall have the right to dig ore themselves, but no question arises under this provision of the indenture in the present case.

It is admitted, in this case, that the defendants have not. paid to the plaintiff or his grantors any duty or tax upon the ore which they have taken from either ore bed, since April 15th, 1843. It is also admitted, that neither the plaintiff nor his grantors have ever made any claim or demand upon the defendants, for any such payments from the 15th of April, 1843, to the time of bringing this suit.

What rightful claims the plaintiff may have against the defendants for ore taken from either or both of these ore beds, or in what form such claims may properly be asserted and enforced, it is not necessary now to decide or consider.

The decision in the present case is, that this action sounding in tort cannot be maintained, and that the plaintiff must be nonsuit.  