on the premises, although the nuisance may have existed before the lessee entered into possession, for where an occupant negligently allows a nuisance to continue, his liability for an injury occasioned by the nuisance would be the same as though he had created it himself.1

§ 151. Same - Opened and unopened mines. A tenant for life or years has a perfect right to work such mines or quarries as were opened and worked at the commencement of his tenancy, and as to mines already opened, the tenant is not confined to such minerals as might be necessary for his individual use, but has the right to sell and otherwise dispose of the same, for it is but a part of the profit of the land and a mode of enjoyment to which he is entitled. The lease of a tract of land in which there is an opened mine, carries with it the right to work and operate the same, and an action will not lie on the part of the lessor against the lessee or his assignee for the exercise of this right. In the absence of an express grant of the right to open a new mine, however, the owner or lessor of the land is the only person who would have the right to open a mine, and

1 O'Dell v. Solloman, 5 N. Y. 119; Rex. v. Pedley, 1 A. & E. 827. But see as to landlord's liability, Center v. Davis, 39 Ga. 210.

2 Lynne's App., 31 Pa. St. 44; Reed v. Reed, 16 N. J. Ch. 248; Viner v. Vaughan, 2 Beav. 466. And a tenant for years may lease an opened mine. Campbell v. Leach, Amb. 740; Irwine v. Covode, 24 Pa. St. 162.

3 Reed v. Reed, supra; Blanchard & Weeks Ld. Cas. 439; Freer v. Statenbruer, 36 Barb. 641; Irwine v. Covode, supra; Neel v. Neel, 19 Pa. St. 323.

Freer v. Statenbruer, 36 Barb. 641; B. & W. L. C. 439, 252; Lynne's App., supra. "An assignee of a lease from a tenant who has wrongfully opened a new mine, may not work the same." Saunders's Case, 5 Coke R. 12. A life tenant cannot make a valid lease to open new mines. Gerkins v. Ry. Co., 100 Ky. 734. But as to lease joined in by remainderman, see Blakely v. Marshall, 174 Pa. St. 425.

Ferrand v. Wilson, 4 Hare, 344; Tiley v. Moyers, 25 Penn. 397; Shaw v. Wallace, 1 Dutch. N. J. 453; French v. Brewer, 3 Wall., Jr., 346.

the tenant for life or years, would not, by reason of his possession, have the right to open and work mines not opened at the time of his demise;1 and the opening of a mine without authority of the owner or lessor, would constitute waste on the part of such tenant.2 But the life tenant's rights in this respect are more extensive in America than under the English common law, and before a tenant could be charged with waste, the evidence must affirmatively show facts sufficient to sustain the charge.3

§ 152. Liability to lessor. The lessee is bound not only to regard and preserve the rights of the lessor, concerning his interest in the reversion, but he is also under obligation to protect his right of possession, and should notify the lessor of any attempt made to dispossess him. The possession of the lessee is the possession of the lessor, and he is not allowed to gainsay the latter's title.* He is liable to the lessor for any damages the latter may suffer by reason of the lessee's failure or refusal to observe the ordinances of any city or town, within whose corporate limits the premises demised may be located, and this liability exists independently of any responsibility to third parties, who may be injured by reason of the lessee's failure to comply with such ordinances. He is

1 Ferrand v. Wilson, supra; Shaw v. Wallace, supra; Blanchard & Weeks. Ld. Cas., pp. 252-439; Gerkins v. Ky. Co., 100 Ky. 734.

2 Irwine v. Covode, 24 Pa. St. 162. peachment, Vane v. Bernard, 1 Salk. Dig. 400.

But see as to lease, without im161; 2 Vernon, 738; Mor. Min.

3 Lynn's App., 31 Pa. St. 44; and see Findlay v. Smith, 6 Munf. 134. 4 Bertram v. Cook, 32 Mich. 518; Hughes v. Wott, 28 Ark. 153; Bedford v. Kelly, 61 Pa. St. 491; Ronaldson v. Tabor, 43 Ga. 230. But this is not the case where lessee was in possession at time of taking lease. Peralto v. Guiochio, 47 Cal. 459; Wright v. Pitt, L. R. 12 Eq. 408.

Taylor's Land. & Ten., § 179, p. 207. A lessee cannot bind the lessor as agent. Wilkins v. Abell, 26 Colo. 462; 58 Pac. Rep. 612; Reese v. Min. Co., 133 Cal. 285. Where plaintiff occupied a mining claim under

also under obligation to maintain the boundaries of the demised premises, and for any failure to do so can be held liable in damages to the lessor, or be made to restore him to the possession of the specific tract of land demised, or another tract of an equal value.1 And where premises are inclosed by the lessee adjoining the tract which he has leased, at the expiration of his term, if the boundaries of the demised premises are not preserved, the presumption would be that the inclosed tract is a part of that included within the original demise, and this presumption would obtain, whether the tract was adjacent to the premises originally demised or not, and regardless of who owned the tract prior to its inclosure with the demised premises.2 But such a presumption would not obtain in favor of the lessor, and against a third party; nor could the title to such a tract be presumed to be in the lessor where the lessee had derived his title before the expiration of the term, or where he had been in possession of the tract before his entry upon the demised premises."

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a lease, he was estopped to deny the landlord's title on the ground that the only discovery of mineral thereon was at the discovery point of another claim. Bunker Hill Min. Co. v. Pascoe (Utah), 66 Pac. Rep. 574.

1 Stokes v. Monroe, 36 Cal. 383; Willis v. Parkinson, 1 Swanst. 9; Turner v. Reynolds, 23 Pa. 199.

2 Taylor's Land. & Ten., § 179, p. 206. But see as to admission of parol evidence to establish and explain boundaries, Lyle v. Richards, 1 Law. Rep. Eng. & Q. App. Cas. 222; 35 L. J. Ch. 214; Davis v. Shephard, L. R. 1 Ch. App. 410; Turner v. Reynolds, supra.

a Doe v. Massey, 17 Q. B. 373; s. c. Taylor's Land. & Ten., note to § 179, p. 207.

4 Dixon v. Bates, L. R. 1 Ex. Ch. 259; cited, Taylor's Land. & Ten. supra. And see as to estoppel of a lessee, or purchaser to question the lessor's boundaries where he enters with an understanding as to the location of boundary lines, even though there was an actual mistake as to the true boundaries, MacGhee v. Stone, 9 Cal. 600; Blanchard & Weeks Ld. Cas., p. 423 and cases cited. "Natural gas lease construed,

§ 153. Same For removing barriers. The lessor of a mine is prima facie entitled to support for the surface, and in the absence of a grant of such right, will be entitled to damages if such support is removed. It follows, therefore, that a lessee who removes pillars or support from the mine will be liable to the lessor, and this, independent of any covenant to leave support, and if the lessee removes pillars from between the demised mine and that of an adjoining property owner, he will be liable for waste and can be made to respond for whatever damage may result.2 But the lessor should not rely on holding the lessee for such conduct and resulting injury, independent of contract and covenant, but should always incorporate in the lease a negative covenant on the part of the lessee not to remove the pillars or support for the surface, and where the lessee has specially covenanted to leave sufficient for the support of the roof and surface, he will not be permitted before the termination of his tenancy to remove the pillars and allow the roof to cave in. Nor would he be permitted to remove pillars and support to the injury of a lessee of a superjacent vein or strata of mineral, but if necessary to secure support for the overlying seam, he would not be allowed to work the under claim in such a way as to injure the owner of the upper vein of ore.

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and held to obligate lessee to pay $100 annually during continuance of lease, and to supply gas to lessor, where he had failed to drill a well on the land as required." Simpson v. Pittsburgh Plate Glass Co. (Ind.), 62 N. E. Rep. 753.

1 MacSwinney on Mines, p. 236; Marker v. Kenrick, 13 C. B. 188.

2 Marker v. Kenrick, supra; Ackerman v. Van Houten, 4 Holst. N. J. Ch. 476; Lyon v. Miller, 24 Pa. St. 392; MacSwinney on Mines, p. 237. 3 MacSwinney on Mines, supra.

4 Mastyn v. Lancaster, 51 L. J. Ch. 696; Lewis v. Fothergill, 5 Ch. 108; Jegan v. Vivian, 6 Ch. 758; Wilson v. Waddell, 2 App. Cas. 100. 5 Glasgow v. Hurlet Alum Co., 3 H. L. Cas. 25; MacSwinney on Mines, pp. 230-236.

good safeguard for the lessor to provide in the lease that the lessee shall not drown the mine, or work the same in a manner liable to result in the overflowing of the mine.1 Where the lessee covenants not to do any act to the injury of the mine, he will not be allowed to remove the machinery in violation of a covenant not to remove the same, if it would result in the drowning of the mine, if the lessor on his part has complied with the provisions of the lease.2 And in the absence of an express covenant not to drown the mine, if the lease contained a provision that the lessee should work in a "proper and workmanlike manner" it would be held a violation of this covenant for the lessee to work in such a manner as to overflow the mine. But as the liability of the lessee in such a case would necessarily be somewhat doubtful, in the absence of an express covenant, it is best to incorporate a negative covenant in the lease against drowning the mine, providing that adjoining mines shall not be drained during the continuance of the tenancy by those in possession of the demised mine.*

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§ 155. In regard to cotenants.-The rights of one cotenant cannot be disregarded by another, and although they hold under entirely different titles, if one cotenant disturbs another in his use of the premises, for the purposes for which the same were leased, he can be made to respond in damages for any injury resulting to his cotenant

1 MacSwinney on Mines, pp. 237-245.

2 Rolleston v. New, 4 Kay & J. 640; B. & W. L. C. 433; Williamson v. Baird, 10 Jurist (N. s.) 152; Townsend v. Peasley, 35 Wis. 384.

3 Lewis v. Fothergill, 5 Ch. 110; Mor. Min. Dig. 416; Jegon v. Vivian, 6 Ch. 756; Hodgkinson v. Crawl, 19 Eq. 594; MacSwinney on Mines, pp. 237-245.

4 Smith v. Kenrick, 7 C. B. 515; Phillipps v. Homfroy, L. R. 6 Ch. 770; MacSwinney on Mines, supra; Jegon v. Vivian, supra; Gorialey v. Sanford, 52 Ill. 159.