MUHLENBERG AND ANOTHER V. HENNING AND ANOTHER 1887. SUPREME COURT OF Pennsylvania. COVENANT by Henry A. Muhlenberg and Hiester H. Muhlenberg against John Henning and James H. Maderia to recover two years' royalty under the provisions of a certain lease. The plaintiffs having filed a copy of the lease, and an averment of the amount due thereunder, defendants filed an affidavit and a supplemental affidavit of defense, the allegations of which are stated in the opinion. Plaintiffs then took a rule for judgment for want of a sufficient affidavit of defense, which the court (HAGENMAN, P. J.) subsequently discharged, whereupon plaintiffs took this writ. CLARK, J.16-This action of covenant was brought upon a contract under seal, denominated a "lease," and dated July 23, 1883, by the terms of which the lessors granted to the lessees the exclusive right, for five years, to all the iron ore contained in a certain tract of 50 acres of land therein described; in consideration whereof the lessees agreed to pay to the lessors for every ton "of clean, merchantable ore, raised, mined, and taken away by them, or their order, from the said premises, the price of thirty-five cents," etc. The lessees further agreed "to raise, mine, carry away, and sell at least fifteen hundred tons of iron ore annually, during the continuance of this lease, or, in default thereof, pay a royalty of $525 annually;" the lease to be forfeited at the option of the lessors, if, at the end of any year, $525, as rent or royalty, had not been paid during the year. It appears by the several affidavits of defense that the lessees, after the execution of the lease, promptly entered into the possession, and, at an expense of $3,000, erected all the machinery and appliances necessary for the proper prosecution of the work; that they were fully equipped to mine, dig, and wash all the iron ore upon the tract; that, with the aid of practical miners, of large experience, they prosecuted their undertaking with due diligence for nine months or more, in a workman-like and skillful manner, but, after a full exploration and search, they failed to find sufficient ore to enable them to carry on and continue the operation as was contemplated in their contract; and, further, that the ore which they did find, and which the said tract contained, was of such inferior quality that, when properly and carefully mined, washed, and prepared for market, in the usual manner, it was not "merchantable iron ore;" that the lessees communicated these facts to the lessors, and the operation of the mines was thereupon discontinued, but the machinery was suffered to remain, with the verbal understanding between the parties that, as long as 16 Part of the opinion is omitted. the mine was not operated, for the reasons stated, the royalty would not be required. On April 1, 1886, this suit was brought to recover two years' royalty, with the interest thereon. The question for our consideration is whether or not the affidavits exhibit a good defense to the whole or any part of the plaintiff's claim. The lessees were, without doubt, bound to prosecute the work without delay. It was their duty to search for and find the ore, and to ascertain its quality; and if ore in sufficient quantity, and of proper quality, could be found, they were held to raise 1,500 tons of it annually. Failing in either, they were bound for the minimum stipulated royalty of $525 per year. Johnston v. Cowan, 59 Pa. St. 275. If, however, it was established by actual and exhaustive search that, at the time of the contract, there was, in fact, no ore in the land, or no ore of the kind contracted for, it cannot be pretended, upon any fair or reasonable construction of the contract, that the lessees were nevertheless bound for the "royalty" of $525 annually; for the payment of the royalty was undoubtedly based upon the assumption of the parties that ore of the quality specified existed there. The subject of sale, it is true, is the exclusive right to mine the iron ore. But for that right the lessors were to be compensated according to the number of tons of “clean and merchantable iron ore" mined; the lessees undertaking to mine 1,500 tons annually, "or, in default thereof," to pay $525 royalty; and how could the lessees be in default in mining 1,500 tons annually, if there was no ore to mine? We are not to construe the contract to require the lessees to perform an impossible thing. The $525 is not a penalty. It is the price of the ore. The grant was of the ore in place, and, if the subject-matter of the contract fail, the price is not payable. If there was no ore to mine, there could be no royalty to pay. As well might the vendor of meat which proved to be putrid, or of a cargo of corn which had no existence, enforce collection from his vendee. We think the manifest meaning or intention of the parties, as exhibited by the terms of the contract, was that 1,500 tons "of clean and merchantable iron ore" were to be mined in each year, if that quality and quantity of ore were there found, and that the contract, by necessary implication, must be so construed. There was no guaranty, it is true, on the part of the lessors, that any ore was to be found in the land, or that the operation would be profitable to the lessees, who certainly entered upon the enterprise at their own risk. The lessees, therefore, could have no recourse upon the lessors for their outlay, in the event of failure. Harlan v. Lehigh Coal, etc., Co., 35 Pa. St. 287. On the other hand, if the latter were to bring an action against the former, upon the covenant to work the mine, equity would interfere to prevent a recovery. Ridgway v. Sneyd, Kay, 627. But the contract having been made upon the assumption of the parties that ore of the quality mentioned ex isted in the land, when it becomes manifest that the parties were mutually mistaken, the contract obligation ceases. It may turn out at the trial, of course, that the ore was in fact merchantable; but, as the case is now presented, we must assume the facts to be as stated in the affidavits of defense. This view of the case accords with, and is fully sustained by, the ruling of this court in Kemble Coal & Iron Co. v. Scott, 15 Wkly. Notes Cas. 220. * * * The authorities cited by the plaintiff in error are inapplicable to the case under consideration. * * * In Jervis v. Tomkinson, 1 Hurl. & N. 195, the lessees entered into the covenant knowing the exact state of the mine, and with that in view covenanted positively and absolutely to get the quantity of 2,000 tons of salt in every year, or pay for the deficiency at the end of it; and therefore, whether they could be got easily or with difficulty, or even whether they existed at all, was held to be immaterial, in the case of an absolute and unqualified covenant. While in Marquis of Bute v. Thompson, 13 Mees. & W. 486, the plain intention of the parties, as manifested on the face of the contract, was that the rent stipulated should be paid whether there was coal or not. There was an express provision in the alternative to pay the rent. See Clifford v. Watts, 18 Wkly. Rep. 925. We are clear in our convictions that the affidavits of defense in this case are such as should send the case to jury, and therefore the writ of error is dismissed, at the cost of the plaintiffs, without prejudice, etc.1 17 17 In Brooks v. Cook, 135 Ala. 219, 34 So. 960, 962, where the lease was of iron ore, Tyson, J., for the court, said: "The grant was of the ore in place, and, if the subject-matter of the contract failed, the price is not payable. Indeed, it is expressly stated in the lease that the lands designated therein as belonging to plaintiffs, and which the defendants are granted the right to mine, are 'supposed to contain iron ore.' When this recital is taken in connection with the fact that the plaintiffs were to be compensated for the right and privilege of mining this ore by a royalty, we do not see how it can be held otherwise but that the contract was made upon the assumption of the parties that ore existed in the land. This being true, when it became manifest that the parties were mutually mistaken, the contract obligation ceases." CHAPTER XI. TENANCIES IN COMMON AND MINING PARTNERSHIPS. Section 1.-Tenancies in Common. WILLIAMSON ET AL. V. JONES ET AL. 1897. SUPREME COURT of Appeals of West Virginia. BILL by Eliza Williamson and others against J. T. Jones and others. Decree for complainants, and defendant Jones appeals. Reversed. We start with the fact that Jones was owner of three undivided tenths in fee in possession, and owner of a life estate for the life of Mrs. Williamson in the remaining seven-tenths, and the plaintiffs owners of the remainder in fee in those seven-tenths; after the end of the life estate, a vested remainder; and, in this condition of right to the land, Jones [took exclusive possession, claiming the whole,] bored 23 wells upon the land, and produced from May, 1892, to December 21, 1895, 622,281 barrels of petroleum oil therefrom, valued at $500,298. Did he have right to bore for this oil? He claims that he had, and that every barrel of it is his, without liability to account to the plaintiffs; while the plaintiffs claim that he had no right to bore and produce this oil, but, having done so, he must account to them for full seven-tenths. Did Jones, as tenant for life, have right to extract this oil? He had not. Petroleum oil, in its place in the land, is a part of the land itself, just as are coal, timber, and iron. Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271; Williamson v. Jones, 39 W. Va. 231, 19 S. E. 436. A tenant for life cannot do anything entailing permanent injury to the estate of the remainderman or reversioner. He cannot, therefore, dig for gravel, lime, clay, stone, or the like; cannot open new mines for minerals. I Lomax, Dig. 54. If he take clay to make brick, not for repair of buildings, but for sale, it is waste. University v. Tucker, 31 W. Va. 622, 8 S. E. 410. It is the duty of the life tenant to protect the land from waste or injury even from others, and he must abstain from so 18 Parts of the opinion are omitted. 47-MINING LAW doing himself. I Washb. Real Prop. p. 116, § 24; 1 Lomax, Dig. 57. Therefore, when Jones himself committed waste by boring for oil, he was a wrongdoer, so far as concerns his life estate. The remainder-men could sue him in an action of waste, as at common law under the English statute of Marlbridge, or in action of trespass on the case under chapter 92 of the Code, and recover the full value of their seven-tenths. It is sought to show that Jones, as life tenant, had right to all the oil, by the case of Koen v. Bartlett, 41 W. Va. 559, 23 S. E. 664, but that case will not sustain this claim. It asserts only that a tenant for life may use the land and its profits, including mines of oil or gas open when his life estate begins, or lawfully opened and worked during its existence. There the owner in fee had made a lease for oil, with a royalty as rent, and then conveyed the fee, reserving a life estate, and it was held that he, as life tenant, was entitled, as against the remainder-man, to the royalty; but there the owner had authorized the boring for oil, and the conveyance was subject, in terms, to the lease, and, though the boring had not produced wells open at the commencement of the life estate, they were bored, under authority, during its continuance. We held that a mine bored in the period of the life estate, under prior authority, was to be deemed as if an open mine at the commencement of the life estate. It is established that an open mine may be worked to even exhaustion by the life tenant. Crouch v. Puryear, 1 Rand. (Va.) 258; 1 Lomax, Dig. 54. The offense of waste consists in the first penetration and opening of the soil, and it is not waste to dig in mines or pits already open, which have become part of the annual profit of the land. Tayl. Landl. & Ten. § 249a. When Jones penetrated the soil, he did so without warrant from his life tenancy, and without warrant from the creator of the life estate. There was no open well, no antecedent authority to bore one. Koen v. Bartlett is no help for him. It may occur that, if Jones could not bore, his life estate would be worthless to him. The oil might be drawn off by wells on an adjoining tract. As life tenant, he was entitled to none of it. Such is the quality of that estate. Having seen that Jones, as life tenant, could not take this oil, we shall next inquire whether his right as owner in fee of threetenths gave him right to do so. Jones was a tenant in common with the owners of the seven-tenths. By the old law one tenant in common was not liable to another for waste; but our Code of 1891 (chapter 92, § 2) has remedied this unreasonable rule by making tenants in common joint tenants and parceners liable for waste. I Lomax, Dig. 499; 2 Minor, Inst. 620. Then we have simply to inquire whether the extraction of oil is waste, and under authorities above given we must answer that it is. Those acts which would be waste in a tenant for life would be between tenants in common. As the statute uses the law word "waste," we must give it the legal |