into possession of the premises, and even though the nuisance would never have become active, had it not been for the use and operations of the lessee.1 But the lessor would not, in all cases, be liable for an injury resulting from such a nuisance. It has been said that in order to hold him responsible the nuisance must be a "normal one," or such as would continue, regardless of the care and diligence of the lessee. The lessor could not be held responsible for an injury caused by a broken flap over a coal mine, even if it were broken when the premises were demised, for the reason that he was not aware of the condition of the mine, and the nuisance was not a normal nuisance, because there would have been no nuisance at all if the lessee had exercised the proper care.3 This is the distinction noted by eminent text-writers and sustained by the weight of authority. If the injury result from the neglect of the lessee, he alone is responsible for his acts, and in order to hold the lessor liable for a nuisance it must necessarily arise from the lessee's ordinary use of the premises, and be one that could not have been avoided by the exercise of reasonable care on his part.4

§ 145. Right of re-entry. The lessor, even after demise, has a right to use all ways appurtenant to the prem

1 Congreve v. Smith, 18 N. Y. 79. But the tenant is usually liable for such a nuisance. Samuelson v. Cleveland Iron Min. Co., 49 Mich. 164.

2 Taylor's Land. & Ten., p. 196, and cases cited. Allen v. Smith, 76 Me. 395; Taylor v. Bailey, 74 Ill. 178.

3 Pretty v. Binckmore, L. R. 8 C. P. 405; Gwinnell v. Eames, L. R. 11 C. P. 658. But see Buesching v. St. L. Gas L. Co. (73 Mo. 219), where both lessor and lessee were held liable.

4 Taylor's Land. & Ten., § 175, p. 196. Leonard v. Storer, 115 Mass. 86; Taylor v. Bailey, supra. Under certain conditions the lessor, himself, can recover from the lessee; and for injuries from blasting rock upon premises and turning foul water from a quarry, the landowner, by

ises, in order to demand his rent or royalty, and for the purpose of removing obstructions, and in the demise of the premises he generally retains the right of re-entry; the privilege of going on the premises to ascertain if there has been waste committed, or other act by the lessee or any other person, to the injury of the inheritance. But where the rent or royalty is payable in a certain per cent of the ore or mineral taken from the soil, although by the statutes. of many of the States he is given a superior right of purchasing the same,2 the lessor cannot go upon the land and take the mineral until it has been turned over to him by the lessee, or has been severed and set apart for his use.3 Nor would he have the right to enter upon the premises for any other purpose, unless the right were reserved to him in the lease, for under a strict construction of the law, any unauthorized entry, after the demise of the premises, would amount to trespass, whether there was a resulting injury or not. The common law governing the acts that would amount to a trespass, and the manner of calculating the damage flowing therefrom, has of course been greatly changed by statutes and the customs of different States and sections; 5 but the principle, as a foundation for the

his conveyance, was not estopped to recover damages. Wilkins v. Monson Slate Co. (Me. 1902), 52 Atl. Rep. 755.

1 Taylor's Land. & Ten., § 174. But this is essentially a reserved right. Supra. Dixon v. Claw, 24 Wend. 188.

2 See R. S. Mo. for 1899, and statutes different States.

3 See Taylor, supra, for general right of lessor to re-enter. A right to sue a cotenant in trespass for entry and removal of ore, has been recognized upon the part of a sublessee of another cotenant. Blewitt v. Coleman, 40 Pa. St. 45. And see also McCord v. Oakland I. M. Co., 64 Cal. 134; 49 Amer. Rep. 686; 11 M. M. R. 160.

4 Taylor's Land. & Ten., supra; Parker v. Griswold, 17 Conn. 288. 5 Taylor's Land. & Ten., supra. "The right of re-entry referred to in Civ. Code, § 791, providing that' when the right of re-entry is given to a lessor in a lease, such re-entry may be made at any time after the right has accrued, on three days' notice,' is the right given the landlord on

law, is still the same, and while the average jury of to-day would seldom fail to give more than nominal damages for an injury occasioned by merely walking over one's grass, where the entry is not made under a license, express or implied, the unauthorized breach of the inclosure would nevertheless amount to a trespass, for it has the tortious element necessary to establish the action of to-day.

§ 146. Continued When same can be exercised.— Having the right of possession, the lessor at common law, could use such force as was necessary to enable him to reenter and take possession of the land, and he could only be held responsible for an undue or excessive force used in taking possession.1 The statutes of forcible entry and unlawful detainer took away the defense which could otherwise have been set up, to an indictment for excessive force used, where the lessor had a right to the immediate possession of the premises,2 but even after the enactment of these statutes the lessor had the right civilly, to take forcible possession of the premises, and the lessee, after the termination of his term, could not maintain trespass against his lessor, where there was no excessive force used, simply because the latter entered and ejected the lessee. The authorities upon which the above doctrine is based have been controverted, however, in some of the decisions, and it has been held that a lessor could not enter forcibly to expel a lessee, even though the latter was in possession some default of the tenant during the term, and not the right which he has when the lease is for a fixed term, which has expired." Earl Orchard Co. v. Fava (Cal. 1902), 70 Pac. Rep. 1073.

1 Taylor's Land & Ten. §§ 531, 532. But the entry must be for the purpose of obtaining the possession. Haley v. Brown, 14 Conn. 270. 2 Taylor, supra, Argent v. Durant, 8 T. R. 403. See Statutes different States.

8 Taylor, ante; Dustin v. Cowdrey, 23 Vt. 631; Turner v. Maycott, 1 Bing. 158. Under the present statutes the lessor should receive possession in the manner pointed out in the statute. Fraer v. Washington, 69 S. W. Rep. 835; Hill v. Watkins, 69 S. W. Rep. 837.

without any right, for the reason that such an act was made criminal by the statute, and as it conferred no right of possession on the lessor, he would be liable in trespass for such an entry any time before the lessee's possession was legally determined. But the weight of authority is evidently in favor of the former doctrine, which permits a lessor, under a plea of title, to justify a forcible entry, and having once regained the legal possession of the land, he may treat a lessee holding over as a trespasser, and for any resistance on his part, use such a reasonable amount of force as would be necessary to expel him.2

1 Gooch v. Hallon, 30 M. A. 450; Willis v. Stevens, 24 Id. 494. And it has even been held under the Missouri statute that an action can be maintained by a tenant wrongfully holding over, after the expiration of his term, if the landlord uses force to enter. Hyde v. Tracher, 22 M. A. 414; Knevet v. Meyer, 24 Mo. 107. But the assignee of landlord cannot maintain the action against the tenant. Holland v. Reed, 11 Mo. 605.

2 Taylor's Land. & Ten., § 531, pp. 128, 129; citing Harvey v. Bridges, 14 M. & W. 437; Davis v. Burrill, 10 C. B. 825. But see, as to necessity of re-entry, and a compliance with the terms of the lease for a breach of a covenant to pay royalty, resulting in forfeiture. Blan. & Weeks Ld. Cas., p. 438, 439; Bowser v. Colby, 1 Hare. Ch. 109; 11 L. J. (N. S.) C. C. 132; also Stockbridge Iron. Co. v. Cone &c. Works, 102 Mass. 80. The lease of a coal mine provided that if the payments of rents, etc., were not made in the manner stipulated, the lessors should have full power to dissolve, terminate, and annul' the lease: Held, obiter, that on the lessee's default, putting in another tenant by breaking in the door at night was not the way' to enforce the forfeiture." Kreutz v. McKnight, 53 Pa. St. 319; s. c. 51 Pa. St. 232. M. M. D. 185. "Lessee being out of possession, it was held that he could not recover possession in ejectment without showing performance, or an offer of performance, of his covenants. Id." M. M. D. 185. "A lease which has been forfeited constitutes no objection to an action for injuries by taking ore while such lease was outstanding, brought by the lessor, who before suit has re-entered- but such fact goes to the measure of damages." Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80. M. M. D. 185. "The entry of a lessor upon premises held by tenant at will, without the assent of the tenant, by quarrying and carrying away stone, is an entry sufficient to determine the estate at will, and to allow a statute of limitations to run in favor of the person theretofore occupying as tenant." Doe v. Bennett, 9 M. & W. 642; s. c. 7 Id. 225. M. M. D. 185.

CHAPTER XI.

RIGHTS AND OBLIGATIONS OF LESSEE.

SECTION 147. Lessee's interest in leased property.
148. Cannot mine beyond leased premises.
149. When lessee's interest attaches.

150. Rights after entering into possession.
151. Same- Opened and unopened mines.

152. Liability to lessor.

153. Same - For removing barriers.

154. Same For drowning mine.

155. In regard to cotenants.

156. Same-Disseisin - Liability for rents and profits.

157. Liability to third persons.

§ 147. Lessee's interest in leased property. The lessee's interest is confined to the property conveyed in the lease, and he must use it, for the purposes specified in the lease. Where a certain tract of land is leased, with a provision that the mining operations must be confined to a part of the land so leased, the lease is held to include this part of the territory, the same as any other part, subject only to the provisions against mining it; 2 but in a lease for mining purposes, giving the lessee the right to take whatever ore may be produced from the land at certain points,

1 Palmer v. Truby (Pa.), 26 W. N. C. 514; see also Guffy v. Deeds, 9 Pa. Co. Ct. 449.

2 Massot v. Moses, 3 S. C. 168; 16 Am. Rep. 697. Lease for mineral of a certain kind only, is limited to the mineral demised. Verdolite Co. v. Richards (Pa. Com. Pl.), 7 N. Co. R. 113. But lease for lead held to include zinc also removed. Hosford v. Metcalf (Ia.), 84 N. W. Rep. 1054. And see Gennett v. Delaware & H. Canal Co., 122 N. Y. 505; 26 N. E. 522. But see as to limit of boundaries, Oskaloosa College v. West. Fuel Co. (Iowa), 54 N. W. 152.