limited to such use as might be necessary for mining purposes. And while the lessee is not liable for royalty unless he finds ore, he has not the right to remove timber nor disturb the surface other than for mining purposes.1

§ 1329. When lessee is entitled to entire product.— In a Pennsylvania case the lessee held possession under a lease authorizing the digging of pits and salt wells for the production of salt. In operating for this purpose, petroleum began to flow with the brine, and the lessor brought trover against the lessee for its conversion. The supreme court of Pennsylvania, speaking through Reed, J., held, very emphatically, that the rights of the parties were precisely the same as if the spring had been opened, and one or both liquids flowing from it, before the execution of the lease. But, of course, as we have seen,3 a contract might be so worded as to prohibit the lessee from taking more than one kind of product.

Where a landlord leased premises for the sole purpose of mining and taking carbon oil therefrom at a fixed royalty, and the tenant opened a well which produced both oil and hydro-carbon gas, the latter issuing in large quantities from the well, the tenant separating the gas from the oil and piping it beyond the premises, where he appropriated it to his own. use, not accounting to the landlord therefor, it was held that he was not liable to the landlord. But it has been held that where a lease authorized the lessee to take out iron ore from certain land, to wash the same on the premises, and do everything necessary to get out the ore, no right is given to him to take the refuse matter from the premises for the

1 Gribben v. Atkinson, 64 Mich. 651. See Darcy v. Asquith, Hutton, 19; Rogers v. Price, 8 C. B. 894, 19 L. J. C. P. 121. See also Walker v. Tucker, 70 Ill. 527.

2 Kier v. Peterson, 41 Pa. St. 357. Supporting the same principle, see Lance v. Lehigh & W. Coal Co. (Pa.

St.), 29 Atl. Rep. 755; Carr v. Benson, L. R. 3 Ch. 524.

3 Ante, § 1217.

4 Wood County Petroleum Co. v. West Virginia Trans. Co., 28 W. Va. 210, 57 Am. Rep. 659; Ormsby Coal Co. v. Bestwick, 129 Pa. St. 572, 18 Atl. Rep. 538.

purpose of manufacturing paint. So, the granting of a right to quarry granite and market the dimension stone thereof, on which a royalty is paid, it is said, does not give a right to take the rubble without payment.2

§ 1330. Restatement - Additional royalty. It would seem clear that the lessee has the right to market the particular product agreed for in the lease, no matter in how many different forms it may be segregated, by cleaning, washing and milling. Of course the rule might be different where another vein is encountered than the one bargained for, and not known to exist. But as to the particular vein, this certainly has the weight of reason, the lessee being only responsible to the lessor, as he should be, for any additional royalty for the by-product fairly falling within the contract.3

§ 1331. Opening new mines.— The old rule was that the tenant could not open new mines; but, strictly, there is no unopened mine. What is meant by the doctrine, as now understood, is that the lessee has not the right to mine beyond the vein, or outside the boundaries specified in his lease, even though the same may belong to his landlord.'

§ 1332. Conflicting surface and sub-surface leases.As a general rule there should be no conflicts between surface and sub-surface leases. Where they occur they are ordinarily referable to the doctrine of severance. So, too,

1 Appeal of Erwin (Pa.), 12 Atl. Rep. 149: Westmoreland v. New Sharlston Colliery Co., 80 L. T. (N. S.) 846.

v. Delaware & Hudson Canal Co., 163 N. Y. 173, 57 N. E. Rep. 287.

4 Astray v. Ballard, 2 Mod. 193; . Shaw v. Wallace, 25 N. J. L. 453;

2 Emery v. Owings, 6 Gill (Md.), Crouch v. Puryear, 1 Rand. (Va.) 258.

191.

3 Supporting this principle, see Watson Coal & M. Co. v. Casteel, 73 Ind. 296; Williams v. Summers, 45 Ind. 532; Austin v. Huntsville Coal & M. Co., 72 Mo. 535; Freck v. Locus Mountain C. & I. Co., 86 Pa. St. 318; Emery v. Owings, 6 Gill, 191; Genet

5 Griffin v. Fellows, 81 Pa. St. 141; Owings v. Emery, 6 Gill, 260; Walker v. Tucker, 70 Ill. 527; Gowan v. Christie, 2 Sc. App. 273; Raisbeck v. Anthony, 75 Wis. 300, 43 N. W. Rep. 900. See also In re Maynard's Settled Estate, 68 L. J. Ch. 609.

6 Owings v. Emery, 6 Gill, 260;

the question as to whether a tenant may open a new mine, in the absence of express authority in the lease, is referable to the right of a life tenant, with this exception: that where a certain vein of exact boundaries is demised, and no express prohibition, the tenant has the right to get the product by any lawful means.

§ 1333. Summary The matter in this article restated. Briefly to restate the law gleaned from the foregoing matter, we may lay down the following principles: First. The particular difference and most controlling one between leases and licenses is that, as a general rule, a lease is exclusive within the limits and boundaries of the thing demised; while a license is not exclusive, and successive licenses may be made, as we shall see later on, of and concerning the same territory.

Second. From the statement in the previous subdivision and the law as it now stands, the proposition is deducible that the lessee, so long as he is squarely within the terms of his lease, may exclude all the world, even the lessor."

Third. His possession being exclusive, he may maintain all needful possessory actions.

Fourth. Where the grant is of the entire contents within a given area, or where gas or other useful products are obtained from an oil well, the lessee is entitled to the entire product, even though not specified in his lease; but, of course, he must pay royalty thereon.

ARTICLE H.

Of Assignments of Leases in General.

§ 1340. When assignments may be made.

1341. When not assignable - Personal skill - Change in partnership. 1342. Assignment of lessor - Effect.

Walker v. Tucker, 70 Ill. 527; Moore

Harlow v. Lake Superior Iron Co.,

v. Miller, 8 Pa. St. 272; Racine v. 36 Mich. 105. Anderson, 4 Bing. N. C. 702. See

§ 1343. Lessee liable notwithstanding assignment of lease. 1344. Lessee and his assignee equally liable.

1345. Limitations - Intermediate assignee.

1346. Covenants running with the land - Actual entry not necessary. 1347. Summary - The doctrine of this sub-title restated.

§ 1340. When assignments may be made. The general policy of the law, as well as the dictates of sound business interests, are in favor of the doctrine that, in the absence of express covenants to the contrary, all leases are assignable; especially where, by their terms, they run to the heirs and assigns of the lessee. Nor will covenants against assignment be construed to work a forfeiture on account of an assignment of the lease, unless this is shown to be the clear intention of the parties, and forfeiture is made the penalty. The common practice is to make leases assignable. So it is that an assignment of a lease may generally be made where it is not forbidden, or where by an entire consideration of the lease it is tacitly authorized. In mining leases, differently from all others, the working of the land and securing of the product is the principal object of the contract, and the personnel of the tenant is a secondary consideration; and so, the reason failing, the rigid rule against assignment generally becomes somewhat relaxed.1

1 Bates v. Donaldson (1896), 2 Q. B. 242; In re Huddell, 16 Fed. Rep. 373; Malcomson v. Wappoo Mills, 85 Fed. Rep. 907; Cons. Coal Co. v. Peers, 150 Ill. 344, 37 N. E. Rep. 937; Caley v. Portland, 12 Colo. App. 397, 56 Pac. Rep. 350; Breckenridge v. Parrott, 15 Ind. App. 411, 44 N. E. Rep. 66; Edmonds v. Mounsey, 15 Ind. App. 399, 44 N. E. Rep. 196; Boydston v. Meacham, 28 Mo. App. 494; Waters v. Stevenson, 13 Nev. 157; Trotter v. Heckscher, 42 N. J. Eq. 254; Woodland Oil Co. v. Crawford, 55 Ohio St. 161, 44 N. E. Rep. 1093; Bradford Oil Co. v. Blair, 113

Pa. St. 83, 57 Am. Rep. 442,4 Atl. Rep. 218; Fisher v. Miliken, 8 Pa. St. 111; Goddard's Appeal, 1 Walker, 97; Pittsburg Cons. Coal Co. v. Greenlee, 164 Pa. St. 549, 30 Atl. Rep. 489; Lykens Valley Coal Co. v. Dock, 62 Pa. St. 32; Watt v. Dininy, 141 Pa. St. 22; Washington Nat. Gas Co. v. Johnson, 123 Pa. St. 576; Aderhold v. Oil Well Supply Co., 158 Pa. St. 401; Smith v. Munhall, 139 Pa. St. 253; Guffey v. Clever, 146 Pa. St. 548; Williams v. Short, 155 Pa. St. 480; Comegys v. Russell, 175 Pa. St. 166, 34 Atl. Rep. 657; Fennell v. Guffey, 139 Pa. St. 241; McGuire

§ 1341. When not assignable- Personal skill - Change in partnership.— In Virginia, under a contract conferring upon skilled miners the privilege to raise ore, with certain incidental rights, continuing as long as they should deem it worthy of searching for minerals, and in which they agreed not to use the land for any other purpose, it was held that the contract constituted a non-assignable lease, the personal skill of the miners being contracted for. The reason assigned is puerile, since skilled miners are legion, and since any but skilled mining would be a breach of implied covenants, in the absence of express ones.

Lessees under a lease of an oil well, which by its terms continued as long as oil or gas could be produced therefrom in paying quantities, abandoned the well because of the failure of the output, and afterwards sought to renew the lease, and were refused; they assigned the original lease, and it was held that the assignee acquired no title. The full language of this lease is not given, and we must therefore presume that there were provisions justifying the decision, the reasons being otherwise obscure. But, irrespective of the right to assign, change of the personnel of a partnership does not operate as a forfeiture of the lease."

What seems

§ 1342. Assignment by lessor - Effect. to be an indisputable proposition was decided in Kentucky, to the effect that all the rights of a lessor under a mining lease may be assigned by him so as to vest in the assignee all the rights thereunder, including the power to thereafter sue for rights accruing under the lease, and the privilege to have a forfeiture declared. But upon the assignment or

v. Wright, 18 W. Va. 507. See also Zane v. Fink, 18 W. Va. 693; Williamson v. Jones, 39 W. Va. 231, 25 L. R. A. 222.

1 Hodgson v. Perkins, 84 Va. 706, 5 S. E. Rep. 710, citing 2 Minor's Inst., p. 22. 6 (h); Barksdale v. Hairston, 81 Va. 764. In this case the

instrument was declared to be a non-assignable license.

2 Cole v. Taylor, 8 Pa. St. 246. 3 In re Markle's Estate, 5 Pa. Dist. Rep. 47.

4 Thompson v. Brownlie (Ky.), 45 S. W. Rep. 871.