note o; Pynchon v. Stearns, 11 Met. 304; 1 Washburn R. Prop. 108); and that the action is founded partly upon the common law and partly upon the Statute, and does not depend for its support on any covenants of the tenant (22 Viner, Abr. 457, Waste M. 4; 3 Bl. Com. 227; Kinlyside v. Thornton, 2 W. Black. 1111; Marker v. Kenrick, 13 C. B. 188); it is obvious that we must resort to the Statute for the conditions on which the tenant is excusable for the waste done.

There is a class of cases in which tenants have been held not to be liable for waste resulting from non-repair where the lessor has entered into a covenant to make the repairs for the want of which the injury has happened. These cases go upon the ground that the injury was caused by the lessor's own default, on which he can base no right to recover. There is no such covenant in the lease now under consideration.

The Statute forbids waste by the tenant" without special license, in writing, making mention that he may do it." The consent of the landlord by parol will not be sufficient authority. McGregor v. Brown, 6 Seld. 114. The words usually employed for this purpose are "without impeachment of waste," but any words of equivalent import will be sufficient, provided they amount to a license to do the acts. The defendant, to bring himself within the Statute, relies on that part of the lease which relates to the re-delivery of the personal property leased, in connection with the stipulation giving the defendant the privilege of expending a portion of the rent in each year for repairs. The covenant as to the personal property is entirely distinct from the obligations of the tenant, with respect to the real estate. The privilege of expending a portion of the rent reserved in repairs, is not a license to the tenant to omit a duty put upon him by the Statute, growing out of the relations between the parties. To construe a privilege given by the landlord to expend his money in the reparation of the demised premises, as a license to the tenant to omit his duty, to the spoil or destruction of the inheritance, would be an entire subversion of the obvious intent of the landlord. If it falls short of a license for the act complained of, it does qualify or abridge the obligations of the tenant which exist independent of the provisions of the lease.

It was further insisted that if any action lies, it should be an action ex contractu, and not in tort. As already observed, the gravamen of the action is the breach of a statutory duty. An action on the case founded in tort will lie for the breach of a duty though it be such as that the law will imply a promise on which an action ex contractu may be maintained. Brunell v. Lynch, 5 B. & C. 589. To the same effect are the cases of Kinlyside v. Thornton and Marker v. Kenrick, already cited, in which it was held that an action on the case in the nature of waste, will lie, although the act complained of might also be the subject of an action for the breach of an express covenant. BEASLEY, C. J., and DALRIMPLE, J., concurred.

Rule discharged.

GAINES v. GREEN POND IRON MINING COMPANY.

NEW JERSEY COURT OF ERRORS AND APPEALS. 1881. ft had leased.

[Reported 33 N. J. Eq. 603.]

APPEAL from a decree of the Chancellor.1

Ift lands of flif for 20 so had beguon

Juking some

mines what had notbeen obealed

Mr. Barker Gummere, for the appellants. Mr. Henry C. Pitney, for the appellees. VAN SYCKEL, J. The bill in this cause was filed by the complainants Quesis. Jus as owners of the remainder in fee of a large tract of wild lands in the

Ital

-for 30 yrs

county of Morris, to restrain the defendants, who, it is alleged, have oft have at only a life estate in said lands, from cutting timber and working the iron mines on said premises, and also praying for an account. Two principal questions are raised by the defendant's answer: First, whether Robert L. Graham, through whom the complainants derive for a. their title, was the legitimate son of Charles M. Graham, the third.

bankous for

Second, whether, if Robert's legitimacy is established, the working of lack of cap the mines by the life tenants, under the circumstances shown in this bereause

case, is waste.

هم

profil ite. The complainants allege that Charles M. Graham was married clan he leaves destinely to Cornelia Ludlow in July, 1847, and they admit that it was work not followed by open cohabitation. Under such circumstances the law Only when he will cast upon the complainants the burden of proving the fact of mar-devores land riage by very clear and persuasive evidence. to sonce acher

use

It is not deemed necessary to discuss the testimony on this branch that his of the case; it is sufficient to say that a careful consideration of it has lessee connol left no doubt in my mind that the Chancellor is justified in the conclusion se neines. he reached upon this point.

The complainants, therefore, as owners of the remainder in fee, are entitled to protect their estate against waste by the life tenant, or those claiming under her.

The land in question is very rough and mountainous, and almost all of it unfit for cultivation. On it there is a thin covering of wood and timber, with a large deposit of valuable iron ore underlying it. About the year 1812 Dr. Graham, then owner of the fee, excavated the iron ore for the purpose of manufacturing copperas, sulphur being combined with it in such proportions as made it available for that purpose. He made at least two openings, from ten to fifteen feet deep, out of which the ore was raised, and carried on this business for several years. There was erected upon the premises a building used for pounding the ores, and other apparatus for treating them. There was no digging for ore from the time Dr. Graham quit working (about 1812 or 1814) until about forty years ago, when a small quantity of ore was taken out and tested

1 The opinion sufficiently states the case.

al.c. l. leve could not

worka

at two different forges in the neighborhood, and was considered to be without value as iron ore, on account of the sulphur it contained. From that time there has been no mining upon these premises until the Green Pond Iron Company commenced its operations in 1872.

By the strict rule of the common law, the opening and working of a mine by a tenant for years, not opened in the lifetime of the previous tenant in fee, was, equally with the cutting of timber, an undoubted mine unle waste of the estate. In Hoby v. Hoby, 1 Vern. 218, the widow was it was al held to be dowable of a coal work. It was resolved in Saunders's ready open. Case, 5 Coke, 12, that "if a man hath land in part of which there is a coal mine open, and he leases the land to one for life, or for years, the lessee may dig in it, for inasmuch as the mine is open at the time, and he leases all the land, it shall be intended that his intent is as general as his lease."

The tenant for life, subject to waste, cannot open a new mine. Whitfield v. Bewitt, 2 P. Wms. 240.

And if a lease of land be made, and some mines are open and some not, the open mines only can be wrought. Astry v. Ballard, 2 Lev. 185.

But a tenant for life may open the earth in new places in pursuit of an old vein of coals, when the coal mine had been opened before he came in possession of the estate. Clavering v. Clavering, 2 P. Wms.

388.

Stoughton v. Leigh, 1 Taunt. 402, was a case directed out of the High Court of Chancery for the opinion of the law judges.

The case involved the right of the widow to dower in certain mines on an estate of which her husband had died seised. The mine had been opened and wrought, but had ceased to be worked long prior to the husband's death. The question was whether the widow, in virtue of her estate in dower, was entitled to work the abandoned mine for her own benefit.

widow dowable The judges answered that the widow was dowable of all the mines which had been opened and worked in her husband's lifetime, and "that her right to be endowed of them had no dependence upon the subsequent continuance or discontinuance of working them, either by the husband, in his lifetime, or by those claiming under him, since his death."

In Viner v. Vaughan, 2 Beav. 466, Lord Langdale said: "A tenant for life has no right to take the substance of the estate by opening mines or clay-pits; but he has a right to continue the working of mines and clay-pits where the author of the gift has previously done it, and for this reason that the author of the gift has made them part of the They are il profits of the land."

the foil A temporary injunction was granted, so that the right of the life tenant to work the clay-pits might be passed upon. That this case did not receive a thorough consideration, is shown by the fact that Stoughton v. Leigh was not referred to.

This subject was carefully considered by Lord Romilly, in Bagot v. Bagot, 32 Beav. 509, where he says: "With respect to the abandoned, or, as they are called in the pleadings and evidence, the dormant mines, I am of opinion that it has not been shown that he committed waste in working those mines. It is always a question of degree to be established by evidence, whether the working of a mine which has been formerly worked, is waste or not. There is no doubt that a tenant for life, though impeachable for waste, may properly work an open mine. A mine not worked for twelve months, or two years, previously to the tenant for life coming into possession, must still be considered an open mine. A mine which has not been worked for one hundred years cannot, I think, be properly so treated. My present opinion is, that a How mine which had not been worked for twenty or thirty years, from the loss of profit attending the working, might, without committing waste, be worked again by a succeeding tenant for life. But, if the working of the mine had been abandoned by the owner of the inheritance many years previously, with a view to some advantage which he considered would accompany such discontinuance, apart from the profits to be made from the sale of the mineral, I doubt whether a succeeding tenant for life could properly treat that as an open mine."

In Elias v. Griffith, L. R. (4 App. Cas.), 465, Lord Selborne says: "Upon the questions of law which were argued at the bar, I think it unnecessary to make more than two remarks. The first is, that I am not at present prepared to hold that there can be no such thing as an open mine or quarry, which a tenant for life, or other owner of an estate impeachable for waste, may work, unless the produce of such mine or quarry has been previously carried to market and sold. No doubt if a mine or quarry has been worked for commercial profit, that must, ordinarily, be decisive of the right to continue working; and, on the other hand, if minerals have been worked or used for some definite and restricted purpose (e. g., for the purpose of fuel or repair to some particular tenements), that would not alone give any such right. But if there has been a working and use of minerals not limited to any special or restricted purpose, I find nothing in the older authorities to justify the introduction of sale as a necessary criterion of the difference between a mine or quarry which is, and one which is not, to be considered open in a legal sense. None of the dicta which are to be found in some of the more modern cases (each of which turned upon its own particular circumstances) can have been intended to introduce a condition or qualifi cation not previously known, into the law of mines.

"The other observation which I desire to make is, that when a mine or quarry is once open, so that the owner of an estate impeachable for waste may work it, I do not consider that the sinking a new pit on the same vein, or breaking ground in a new place on the same rock, is necessarily the opening of a new mine or quarry; and for this, authority is to be found in the cases which were cited at the bar, of Clavering v. Clavering, Bagot v. Bagot, and Cowley v. Wellesley [L. R. 1 Eq. 656].'

years?

reason

In Elias v. Griffith, L. R. 8 Ch. Div. 521, Lord Cotton remarked that, "To enable a termor, or tenant for life punishable for waste, to work mines, it must be shown that the owner of the inheritance, or those acting by his authority, have commenced the working of the mines with a view to making a profit from the working and sale of what is part of the inheritance. When this is established, though no profit has in fact been made, the mine is open in such a sense as to justify the continuance of the working by a termor.”

The case of Clavering v. Clavering, 2 P. Wms. 388, which recognizes the right of the life tenant to open new pits or shafts, for the working of an old vein of coal, has never been overruled in the English courts.

These citations show that, in England, the life tenant has a right to use a mine for his own profit, where the owner of the fee, in his lifetime has opened it, even though he may have discontinued working upon it for a long period of years.

The rule by which the right of the life tenant is to be tested is not the length of time that may have elapsed since the last working of the mines, but it depends upon whether the owner of the fee merely discontinued the work for want of capital, or because it did not prove profitDefends nable, or for any other like reason, or whether he abandoned it with an for executed intention to devote the land to some other use. abandokant A mere cessation of work, for however long a period, will not defeat the life tenant's right, but an abandonment for a day, with a view, in the language of Lord Romilly, "to some advantage to the property, which the fee owner considered would accompany such discontinuance, apart from the profits to be made from the sale of the mineral," would extinguish any claim on the part of the life tenant. If the fee owner should sink a shaft, and afterwards erect a dwelling-house over it, or if he should fill it up and devote the space to agricultural purposes, it would indicate, so clearly, his intention to devote his estate to other uses than mining, that the life tenant could not base any right upon the prior opening.

The distinction between mere cessation of use and such an abandonment as has been adverted to, is recognized in the cases in this country.

In the New York Supreme Court, a widow was held to be dowable of a bed of iron ore, although the openings which had been made by the husband had been partly filled up and the work discontinued in his lifetime. Coates v. Cheever, 1 Cow. 460.

Chief-Justice Shaw, in Billings v. Taylor, 10 Pick. 460, expresses the like view: "Whatever doubts may have been formerly entertained, it seems now to be well settled that a widow is entitled to dower in such mines and quarries as were actually opened and used during the lifetime of the husband, and it makes no difference whether the husband continued to work them to the period of his death, or whether they have been continued since his death, by the heir or his assignee."