the different parties to the premises, and they extend not only to the different parties to the lease, but also to third parties with whom they may come in contact in the relation of lessor and lessee.1 Before the lessee enters upon the land the right of possession is in the lessor,2 but after that period the lessee alone is entitled to possession, and may maintain all actions for injuries thereto.3

§ 138. In regard to lessor's reversionary interest. After the lessee enters into possession, the rights of the lessor extend merely to his reversionary interest. The lessec is the proper party to bring actions for injuries to - the possession, and while it is not improper, in some cases, to join the lessor in such actions,5 generally speaking, he is only entitled to maintain actions for injuries to the inheritance, or such injuries as would damage his reversionary interest, after the determination of the lease.6 The lessee has the right to the exclusive possession of the premises; 7 but although he is entitled to the use of the premises for the purposes for which they were demised, even as against the lessor, he must not only use the premises for these purposes alone, but he must also do no act, that would result in injury to the reversionary interest

1 Taylor's Land. & Ten., § 172, p. 188.

2 Taylor's Land & Ten., § 173; citing Vanduyner v. Heffner, 45 Ind. 589; where the character of tenant's possession is explained.

3 Livingston v. Reynolds, 2 Hill, 157; Bradstreet v. Pratt, 17 Wend. 44. Before an entry the lessee cannot maintain an action for mineral removed. Austin v. Coal Co., 72 Mo. 535.

4 See supra.

Getz v. Phil. & Red. Ry. Co., 105 Pa. St. 547.

Aycock v. Ry., 89 N. C. 321; Mayor v. Lyon, 69 Ga. 577; Taylor's Land. & Ten. § 173.

And he may enforce this right by an action of ejectment. Taylor's Land. & Ten., supra. But see Vanduyner v. Heffner, there cited.

of the lessor.1 The lessee should not exercise his right to mine and dig the soil, without first considering the probable effect of his operations upon the reversionary interest of his lessor, and if he conducts such mining operations in a manner calculated to cause permanent injury to the inheritance, as where a nuisance is erected on the premises,2 or the foundation of a house is undermined, the lessor, in such cases, is entitled to maintain an action to protect his reversionary interest.5 The lessor is also entitled to an injunction to restrain acts calculated to injure his reversionary interest, or to prevent the lessee from appropriating the premises for purposes not agreed upon by the parties; 5 but before he can assert his right the injury must be of such a character as to permanently effect the inheritance, and unless the disturbance is of a continuous nature, the reversioner is not entitled to maintain such an action.6

§ 139. Same Lessor's implied right to surface support In every demise of minerals, the surface owner or

1 Douglas v. Wiggins, 1 Johns. Ch. 435; Kane v. Vanderburg, 1 Id 11. And see as to character of injury necessary to support an action. Queen's Colliery v. Hallett, 14 East, 489.

2 Kerrens v. Seibert, 11 Bradw. (Ill.) 319.

3 Ferrand v. Marshall, 21 Barb. 409.

4 St. Helena Smelting Co. v. Fipping, 35 L. J. N. S. Q. B. 66, where the injury consisted in the damage done to trees from noxious vapors from a smeltery.

Madox v. White, 4 Md. 72; Wilton v. Saxton, 6 Ves. 106. See generally as to the injuries resulting in nuisances and the lessor's right to abate same, Blanchard & Weeks Ld. Cas., p. 630, et sub., citing Hays v. Cohoes Co., 2 Comst. 159. Possession is not essential to restrain waste and secure an accounting for property removed, in violation of terms of lease. Peck v. A. & L. T. Co. (Tenn. 1902), 116 Fed. Rep. 273. 6 Lyon v. Woodman, 3 Leg. Gaz. 81; West Point Iron Co. v. Regiment, 45 N. Y. 703. And if an action at law would furnish pecuniary compensation, an injunction would be refused. Jerome v. Ross, 7 Johns. Ch. 315; Waldron v. Marsh, 5 Cal. 119.

lessor is presumed to have contracted in such a manner as to protect his own right of surface support, and unless from the language used it was clearly his express intention to grant the lessee the right to remove the natural support for the surface, the lessor will be held to have retained this right to himself, however broad the lessee's rights may be under the instrument of demise.2 In such case the rule "sic utere tuo ut alienum non laedas" governs the lessee in the conduct of his operations, and if, in the absence of an express agreement giving him the right, he so uses his privileges as to injure the lessor in the enjoyment of his surface rights, the lessor could either restrain him or recover damages for whatever injury he should sustain. But the right of surface support, like any other right, may be waived, or transferred by the lessor, and if, by the terms of the lease, the lessor has by covenant transferred such right to the lessee and limited the damages to pecuniary compensation, the covenant will be supported by the courts, and the lessee will have the right to remove the support from the surface. And the lessee has a perfect right to remove the minerals from the soil, if by so doing he does not occasion unreasonable injury to the lessor's surface rights, and all the lessor can claim is that no physical injury be done to the surface in its normal state. The lessee is under no obligation to support buildings erected

1 Dugdale v. Robertson, 3 Kay & J. 695.

2 Harris v. Ryding, 5 M. & W. 60; Rogers v. Taylor, 27 L. J. N. S., Ex. 173; 2 H. & N. 828.

3 Bainb. on Mines, § 431; Hunt v. Peake, 29 L. J. Ch. 787; 1 Am. Law Reg. (N. 8.) 591; s. c. B. & W. L. C., pp. 616-622.

4 Blanchard & Weeks Ld. Cas., pp. 616-620; Proud v. Bates, 34 L. J. Ch. 406; 5 Am. L. R. (N. 8.) 171. For excavations under railroads. See Chap. Mining Easements.

Smith v. Darby, L. R. 7 Q. P. 716. And see Eadon v. Jeffcock, 7 L. R. Ex. 379; Taylor v. Shafto, 8 B. & S. 228.

Blauchard & Weeks Ld. Cas., supra, and cases cited.

by the lessor subsequent to the acquisition of his right to mine,1 for having acquired a prior right, he has all the privileges necessary to the enjoyment thereof, and if a nuisance result as a necessary incident from the exercise of the right, the lessor can claim no damages therefor.2

-

§ 140. Remedy for improper working. In the absence of a covenant on the part of the lessee to work the mine in any particular manner, the lessce is generally at liberty to work the mine in the method most advantageous to himself, although it may not be to the satisfaction of the lessor.3 The lessee is not compelled to work the different seams in connective order, under a general covenant to conduct his operations in a workmanlike manner," but may work them as he sees fit, so long as he does so in a proper manner; and unless he is otherwise bound by covenant, he may work as long or as short a time as he desires. He will not be allowed to work, however, in such a manner as to injure the surface rights of the lessor, and if such injury results to the lessor from the manner in which he conducts his operations, an injunction will lie on the part of the lessor to restrain a continuance of such work.5

1 Hay v. Cohoes, 2 N. Y. 538; Jones v. Wagoner, 10 F. P. Sm. 429; Walters v. Hamilton, 75 Mo. App. 237.

2 Marvin v. Brewster Iron Min. Co., 55 N. Y. 538; Blan. & Weeks Ld. Cas. 619. A covenant by lessee to support rock over coal seam, does not amount to an assurance by lessor that there is such rock. Beatie v. Coal Co., 56 Mo. App. 221. As to extent of surface owner's right to support, see Railroad v. Brandon, 81 Mo. App. 1.

3 Wright . Pitt, L. R. 12 Eq. 408; Sharp v. Wright, 28 Beav. 150; Hanson v. Boothman, 13 East, 22; Jones v. Shear, 7 C. & P. 346; Hodson v. Maulson, 18 C. B. (N. s.) 332; Blan, & Weeks Ld. Cas., pp. 440-442. 4 Blanchard & Weeks Ld. Cas., p. 440, and cases cited.

Bainb. on Mines, 431; Blan. & Weeks Ld. Cas., p. 616; Proud v. Bates, 34 L. J. Ch. 406; Smart v. Morton, 1 Jur. (N. s.) 825. In an action to restrain defendants, who are engaged in removing ores from

And so where the lessee has covenanted to conduct his operations in a specified manner, or to work for a certain time, or continuously, the lessor can work a forfeiture of the lease for a breach of this covenant, or recover damages for the breach, at his election.1

The lessor must be

§ 141. Lessor's liability to lessee. in position to place the lessee in possession of the premises on the day agreed upon for the commencement of the term.2 The premises should be in the same condition that they were at the date of the demise,3 and if the condition of the premises is altered, so as to render the same unfit for the purposes for which they were leased; 4 or if, for any reason, the lessor is unable to place the lessee in possession of the land contracted to be demised,5 the lessee is under no obligation to accept anything less than that which was agreed upon, and can either refuse to enter into possession of the premises, or sue the lessor for the breach of his covenant and for damages for his failure to place him in possession of the

beneath the surface of plaintiff's ground, the burden is on defendants to show that they are not trespassers, and that they have a right to follow the vein into plaintiff's territory; and in case of doubt an injunction should be granted. Anaconda Copper Min. Co. v. Heinze (Mont. 1902), 69 Pac. Rep. 909.

1 Davis v. Moss, 38 Pa. St. 346. And if the lessee only enters and makes a pretense to be conducting his operations, as where he greases an engine and arranges the tools, this would not avail him as a compliance with his covenant, supra. Wheatley v. West Min. C. Co., 9 Law Rep. Eq. 538. But see as to lessee's discretion in the absence of a covenant, Marvin v. Brewster Iron Min. Co., 55 N. Y. 538; also, Hay v. Cohoes, 2 N. Y. 159.

109.

2 Taylor's Land. v. Ten., § 176, p. 200.

3 Andrews v. Woodcock, 14 Iowa, 397; Tunis v. Grandy, 22 Gratt.

4 Cleves v. Willoby, 7 Hill, 83.

5 Ante, idem.

Taylor's Land. & Ten., § 177; Tunis v.

Grandy, supra.