legal duty, and show that he negligently failed to perform the same.

§ 158. Same

Crossing boundary

Measure of damage. The object of the law in giving damage to an innocent third party for an injury to his personal or property rights, is to place him, as near as may be, in the position he occupied before the injury occurred. So if a lessee crosses the boundary line of the demised tract, and works into the mine of an adjoining owner, he can be made to respond in damages to such injured owner, for the mineral removed, and the measure of damage would be the market value of the minerals, at the mouth of the pit or shaft, at the time and place of removal, less a just compensation for raising them to the surface,2 and this in the absence of any fraud on the part of the lessee, or knowledge on his part that he had actually exceeded the limits of the demised tract. But in computing the actual damage the court would not allow the lessee compensation for getting out the mineral, as this would be permitting him to take advantage of his own wrong, but would confine him strictly to the cost of raising the ore, as the only credit to which he would in such case be entitled. If the lessee knew at the

1 Taylor's Land. & Ten., supra.

2 Phillipps v. Hamfray, L. R. 6 Ch. 770; Martin v. Porter, 5 M. & W. 351; Morgan v. Powell, 3 Q. B. 278. The court will not give consequential damages. Powell v. Aiken, 4 Kay & J. 343. This is the rule as to measure of damages recognized in Missouri. Austin v. Huntsville Coal Co., 72 Mo. 535.

3 Moyl v. Yoppen, 23 Cal. 306. In re United Min. Co., L. R. 15 Eq. 46; Martin v. Porter, supra. Rental value is not a proper measure of damage. U. S. v. Magoon, 3 McLean, 171. But see Allen v. Barkley, 1 Spears (S. C.) Eq. 264.

4 Livini Co. v. Brogden, L. R. 11 Eq. 188; Hilton v. Woods, L. R. 4 Eq. 432; Phillipps v. Hamfray, supra. The evidence of the cost of removing the ore should be confined to what was a reasonable charge therefor, not what the trespasser may have incurred; for if permitted

time of committing the trespass that he had actually exceeded his boundary, the court would perhaps hold him also to exemplary damages, and on principles of justice, he should also be answerable for all actual damage to the premises as well as all profits received therefrom.

§ 159. Same

Drainage of mine.-A lessee has no right to artificially conduct water from an adjoining mine into the demised mine,3 nor could he, as an active instrument, discharge water from the demised mine upon the property of his neighbor. And if the lessee's mine is on a higher level than that of an adjoining property owner, and he conducts or actively assists in conducting water therefrom, on to the mine of such an owner, he can be made to respond for the damage sustained, and that he had been free from negligence and conducted his operations in a reasonable way would not constitute a defense. And his liability would be the same if he should perforate or remove a barrier between his own and the lower mine which would let the water through and drown the lower mine."

to take such a wide range with the evidence and to deduct so liberally from the market value, the evidence of his losses could readily be so magnified as to fully pay for all ore removed.

1 Barton C. Co. v. Cox, 39 Md. 1; s. c. Mor. Min. Dig., p. 235.

2 Huston v. Wickersham, 2 Watts. &. S. 314; Atwood v. Tricott, 17 Cal. 37. But see as to a court of equity giving consequential damage, Powell v. Aiken, 4 Kay & J. 343; Hilton v. Woods, L. R. 4 Eq. 432. 3 Jegon v. Vivian, 6 Ch. 758.

4 Gould v. Martin, 19 C. B. (N. s.) 758; Roberts v. Rose, L. R. 1 Ex. 89; Hurdman v. N. E. Ry. Co., 3 C. P. D. 173; MacSwinney on Mines, p. 401. See the late case of Sullivan v. Johnson (Wash. 1902), 70 Pac. Rep. 246. 5 Lomax v. Stott, 39 L. J. Ch. 894; Westminster &c. Co. v. Clayton, 36 L. J. Ch. 476; Phillipps v. Hamfray, 6 Ch. 781.

6 Rylands v. Fletcher, L. R. 3 H. L. Cas. 341; Westminster &c. Co. v. Clayton, supra. As to right to use and divert subterranean streams, see Katz v. Walkinshaw (Cal. 1902), 70 Pac. Rep. 663.

Durham v. Hood, 9 Sess. Cas. 474. See chapter, Water and Water Courses.

However, a lessee is entitled to the drainage from an adjoining mine by the natural action of gravitation, and if he does not bring the flow to his own mine by artificial means, or actively assist in its flow, from its natural course, he will be free from liability, even though he may have constructed channels or conduits to confine the water to its natural course.1

§ 160. Liabilities of under lessee. There is no privity between an under lessee and the original lessor, and the covenants entered into between the original lessor and lessee, such as would run with the land, to pay rent or repair, will in no way affect the under lessee personally.2 The original lessor, however, still retains the claim upon the land, and notwithstanding there has been an under lease, he may eject either the original lessee or the sub-lessee, where, by the conditions of the lease, they have forfeited their interest in the land.3 But it is different with an assignee, for as the assignment transfers the entire interest of the lessee to the assignee, the latter is personally responsible to the lessor upon all the covenants running with the land.4 The original

1 Jegon v. Vivian, supra; MacSwinney on Mines, pp. 239-240. If it is sought to deprive the lessee of this right, or to subject him to a water lease rent, a covenant should be incorporated in the lease. MacSwinney on Mines, supra; Mexborough v. Bower, 7 Beav. 127. A lessee will not be permitted to operate oil wells so as to drain the oil on to adjoining premises he has leased. Klepner v. Lemon, 176 Pa. St. 502; 35 Atl. Rep. 109.

2 Earl of Derby v. Taylor, 1 East, 502; Robinson v. Lehman, 72 Ala. 401.

3 Taylor's Land. & Ten., § 109, p. 119. A lease to a third party by the lessee, during the period for which he has paid royalty, is void, and he cannot set up such lease as a forfeiture by the lessor. Friend v. Mallory (W. Va. 1903), 43 S. E. Rep. 114.

Fisher v. Milliken, 8 Pa. St. 111; Preston v. McCall, 7 Gratt. (Va.) 121; Cox v. Bishop, 8 DeG. M. & G. 815; Walters v. Northern C. M. Co., 5 DeG. M. & G. 629. The lessee cannot take advantage of an act of his

lessee can be held responsible by the original lessor for any breach by the under lessee, of the covenants contained in the original lease, and for this reason he should require covenants of indemnity from the under lessee for a faithful performance of the covenants contained in the original lease. The interest of the under lessee cannot be defeated by the original lessee's surrendering his estate to the lessor, and before the expiration of the original term the lessor cannot terminate the estate of the under lessee by giving him notice to quit. But an under lessee, after an entry into possession, is bound by all such covenants as run with the land and for this reason he should inform himself of the covenants contained in the lease, and in order to prevent an eviction by the lessor, for a failure to pay royalty, which he may have paid to the mesne lessee, he should stipulate for a provision to protect him from paying his royalty until the mesne lessee could produce a receipt from the lessor for the amount of royalty due him under the lease.5

§ 161. Liability for injuries from negligence. The lessee is under obligation to use the property in his possession in such manner as to prevent injuries to others

amounting to a forfeiture, as the provision is for the lessor only. Henne v. So. Pa. Oil Co., 43 S. E. Rep. 147.

1 Penley v. Watts, 7 M. & W. 601; Logan v. Hall, 4 C. B. 598; Taylor's Land. & Ten., § 110.

2 Eaton v. Luyster, 60 N. Y. 252; Lermen v. Hermen, 87 Ind. 130.

3 Taylor's Land. & Ten., § 111, p. 121. A forfeiture is authorized only by a violation of an express covenant. An implied covenant gives damages only. Core v. N. Y. Pet. Co. (W. Va. 1903), 43 S. E. Rep. 128.

4 Flight . Barton, 3 Mylne. & K. 283; Taylor's Land. & Ten., SS 110-118.

Taylor's Land. & Ten., supra. An assignee who holds under the assignment is liable for the royalty on minerals mined. Coulter v. Gas Co., 14 Pa. Sup. Ct. 553.

therefrom. It is his legal duty to keep the premises in repair, and for any injury resulting from his neglect to keep the premises in a safe condition or for his reckless management thereof, he can be made to respond in damages to the injured party. He is responsible for the negligent covering of a mine or excavation near the public highway; 3 can be made to respond for filtering filthy water in or upon the land of his neighbor; and is generally liable for any injury caused by his negligent act, or his servants, which occurs within the general scope of their authority.5 But the lessee cannot generally be held responsible for injuries resulting to persons, who are not lawfully on the premises, or to those who enter without the permission of the lessee, for the reason that he is under no obligation to keep the premises safe for their coming. His liability in such cases has been stated to be that where his negligence is so gross and willful as to be in utter disregard of the consequences, then the injured party may recover, although he was not lawfully on the premises and could not be said to have exercised reasonable diligence to avoid the injury.? This is the general rule stated in such cases, as the doctrine of contributory negligence cannot be set up by the defendant, when his conduct is so grossly negli

1 Rex v. Russell, 4 East, 427; Norton v. Miswall, 26 Barb. 618.

2 Grinwell v. Eames, L. R. 10 C. P. 658; Erskine v. Adeane, L. R. 8 Ch. App. 756; Eastlock v. Board of Health (N. J. 1902), 52 Atl. Rep. 999; Sturmwold v. Schreiber (N. Y. 1902), 74 N. Y. S. 995; McKinley v. Alliance Co. (Mo. 1901), 66 S. W. Rep. 153.

3 Congreve v. Smith, 18 N. Y. 79; Grinwell v. Eames, supra; Petty v. Bickmore, 8 Id. 405.

4 Gould v. Martin, 19 C. B. (N. s.) 758.

5 Pickard v. Collins, 23 Barb. 444; Waggoner v. Germoine,

306.

• Taylor's Land. & Ten., § 174 et sub. Buswell Per. Inj., § 91. see Sturmwold v. Schreiber (N. Y. 1902), 74 N. Y. S. 995.

Denio,

But

'Litchfield Coal Co. v. Taylor, 81 Ill. 590; Belt Ry. Co. v. Mann, 107

Ind. 89; Cooley on Torts, p. 810 et sub.