the part of S. to renew the lease for twelve years from its expiration. T. assigned to the N. C. Co. Subsequently, and before the twentyfive years expired, S. sold to A. part of the land, excepting and reserving for the N. C. Co. the privilege of quarrying and conveying off the cement stone which they hold by virtue of a certain lease for the same." At the expiration of the lease S. renewed it. Held, that he had no right to do so in so far as it related to the stone upon the land conveyed to A. And the latter was entitled to an injunction restraining the lessees from mining on his land.

Marvin v. Brewster Iron Mining Co., 55, 538 (1874). A conveyance of land reserving always all mineral ores thereon now known, or that may hereafter be known, with the privilege of going to and from all beds of ore that may be hereafter worked on the most convenient route to and from," passes the surface land in its condition at the time the grant was made, or in the state, for the purpose of putting it into which the grant was made.

"A reservation of minerals and mining rights is construed as is an actual grant thereof." "A reservation of minerals and mining rights from a grant of the estate, followed by a grant to another of all that which was first reserved, vests in the second grantee an estate as broad as if the entire estate had first been granted to him with a reservation of the surface."

Sloan v. Furnace Co., 29, 568 (1876). The words " reserv

Ohio. ing all the minerals underlying the soil," in the granting clause

of a deed for conveyance of land, constitute an exception of the minerals from the operation of the grant; the fee thereto remains in the grantor.

Baker v. McDowell, 3 W. & S. 358 (1842). B. seised Pennsylvania. in fee of a tract of land, subject to an outstanding title to one half of all iron ore found in the premises, conveyed the same to H. in fee, "excepting and reserving to the said B., his heirs and assigns, the one half of all iron ore found on the land." Held, to be a reservation to the grantor himself of that half of the ore which was vested in him, and not a mere notice or reservation of the other half which was outstanding.

Shoenberger v. Lyon, 7 W. & S. 184 (1844). A reservation in a deed of conveyance which is as large as the grant itself is void, and the grant is valid.

S. and L., being tenants in common of H. Furnace and the lands appurtenant thereto, and at the same time owners of a right to dig, take, and carry away ore to be used at H. Furnace from a tract of land which belonged to a third person, L. conveyed to S. his right, title, and interest in the furnace lands and ore bank, reserving the full undivided one-half part of all the iron ore in any of the land now belonging to the H. Furnace, within not less than two miles of H. Furnace. Held, not a reservation of right to take ore on land which belonged to the third person, though not within two miles of said furnace.

Whitaker v. Brown, 46, 197 (1863). A provision in a deed in fee of land, "saving and reserving, nevertheless, for his (the grantor's) own use the coal contained in the said piece or parcel of land, together with

free ingress and egress by wagon road to haul the coal therefrom as wanted," is not a reservation but an exception. The property in the coal remains in the grantor, and descends to his heirs.

Alden's Ap., 93, 182 (1880). On May 9, 1786, Peter Grubb conveyed to Robert Coleman premises which he had derived from his father, Curtis Grubb, "saving and excepting unto the said Peter Grubb, his heirs and assigns forever, the right, liberty, and privilege at all times hereafter of entering upon the premises, etc., and of digging, raising, and hauling away a sufficient quantity of iron for the supply of any one furnace at the election of the said Peter Grubb, his heirs or assigns, at all times hereafter." Peter Grubb exercised those rights by supplying the Berkshire Furnace.

On May 7, 1788, he conveyed to George Ege, his heirs and assigns, "all the right, liberty, and privilege of him, the said Peter Grubb, etc., of entering at all times hereafter upon the premises aforesaid, etc., and of digging, raising, and hauling away a sufficient quantity of iron ore for the supply of any one furnace at the election of the said George Ege, his heirs or assigns, at all times hereafter. Ege supplied the Berkshire Furnace until 1793, from which time he supplied the Reading Furnace until 1858. Improvements in the manufacture of iron, especially the use of steam instead of water power, the introduction of anthracite coal as a fuel, and the hot blast, very greatly increased the capacity of this furnace. Held: 1. The owners of the reserved right were not restricted to the quantity of ore used by each at the time he elected the Reading Furnace, but to a sufficient quantity to supply any one furnace from time to time selected by them, although of a larger capacity and using modern improvements in manufacture not known at the time of the election of the Reading Furnace.

2. The measure of the quantity of ore to which they were entitled was so much as a given furnace would use in the course of a year, taking into consideration wear and tear and the necessity of going out of blast for repairs at certain intervals.

3. The ore when taken from the mines was their absolute property, which they might use or sell, provided the entire quantity taken out did not exceed the quantity measured by the capacity of one furnace.

4. If they omitted to take all the ore to which they were entitled in any one year, they could not take the quantity thus omitted in any succeeding year.

5. They were liable for ore taken or stolen in excess of that needed for one furnace, and were chargeable with interest thereon.

Foster v. Runk, 109, 291 (1885). A. conveyed a farm to B. by a deed containing the following reservation: "Excepting and reserving thereout unto A. all and all manner of metals and minerals, substances, coals, ores, fossils, and also all manner of compositions, combinations, and compounds of any or all the foregoing substances, and also all valuable earths, clays, stones, paints and substances for the manufacture of paints upon or under the said tract of land." B. then leased the farm to C. for the manufacture of bricks, with the right to use the clay thereon for that purpose, reserving a certain royalty on bricks made and sold. The next day A. also made a lease to C. for ten years

from June, 1866, with the privilege of renewal, granting the same privilege and under like provisions. Both leases were assigned to D., who took possession and manufactured bricks thereunder.

D. renewed the lease with B., but not the one with A., and continued his possession and business after the expiration of the latter lease. D. refused to pay royalties to A. after 1873, claiming that A. had no title to the brick clay after his deed to B., and that his lease was therefore void. In a suit by A. against D. for royalties, -Held: 1. That the reservation in A.'s deed to B. included the clay suitable for making bricks, and was not restricted to the kind of clay from which paint could be manufactured.

2. That said reservation was not void, as being as broad as the grant, but the latter passed the ordinary glebe timber and waters. While the reservation, technically construed, might perhaps include everything which was the subject of the grant; yet the contracts of ordinary people are not to be so construed, but must be interpreted so as to carry out the manifest intention of the parties as determined by viewing the subject-matter thereof, as the mass of mankind would view it.

3. That by virtue of D.'s holding over after the expiration of A.'s lease, the same continued in force against him.

Lillibridge v. Lackawanna Coal Co., 143, 293 (1891). "There is no substantial difference between a title by exception out of a grant, and a title by direct grant of the same subject. In a case of an exception, the grantor retains the whole title which he already holds; and in the case of a direct grant, the grantee holds the whole title granted, and the ownership is as absolute in the one case as in the other. We have held that a grant of all the coal underneath the tract of land is an absolute conveyance in fee simple of all the coal, and no greater title than that could be acquired by an exception to the same effect in a grant of the surface. The books make no distinction."

(c.) Covenants to sink Wells and IV. The Subject of the Lease and the Right of the Lessee to Minerals not enumerated in his Lease.

conduct Oil Operations.

I. EFFECT UPON THE LEASE OF THE NON-EXISTENCE, EXHAUSTION, OR THE UNMERCHANTABILITY OF MINERALS.

THERE is no implied contract in a lease of land that it is fit for the purpose for which it is let, neither is there any implied warranty in a lease of a mine that it contains the mineral which is supposed to be in it, either as to amount or as to quality. The non-existence or exhaustion of mineral, therefore, is, as a rule, no defence to an action for the rent, since the lessor is not to be considered as having guaranteed its existence, and the lessee gets all that he has contracted for. Likewise, when the ore proves unmerchantable, this fact is not material in an action for the rent, and will not be considered as a defence to the same, unless the lessor expressly guarantees that the mineral does exist or that it will be merchantable; these are risks which are, and should be, properly speaking, assumed by the lessee. This rule, of course, has its application only in the absence of special contracts to the contrary, of mistake, fraud, or misrepresentation. Where there is a stipulation that the mineral shall be merchantable, the burden of showing its quality is on the lessee.

There is, however, an exception to the general rule, a class of cases in which the non-existence or exhaustion of mineral is a defence to an action for rent.

Circuit Judge Dallas in a recent case (Ridgely v. Conewago Iron Co., 53 Fed. Rep. 988) lays down the rule that where there is a covenant in a lease to pay rent irrespective of product, the lessee must pay though he gets no mineral; but if he covenants to take out a stipulated quantity of mineral, or upon failure to do so, to pay royalty upon such quantity, his obligation is to pay for that quantity whether mined or not, and not whether it exists or not, and he is not bound to make payment after the exhaustion of the mineral.

This statement, although it gains some support from Boyer v. Fulmer, is much broader than the Pennsylvania cases justify. In many cases where the lease contains a covenant to mine a certain quantity or pay royalty thereon, exhaustion has been held to be no defence to an action for rent. The test is to ascertain from the terms of the particular lease and the circumstances surrounding its execution whether the lessee took the risk of the exhaustion of the minerals. It is believed that no fixed rule of construction can be laid down for the determination of this question. In Timlin v. Brown the rule was laid down that when there is an absolute grant of all the minerals, and the existence of mineral is an ascertained fact, the lessee takes the risk of its quantity. Where the existence of mineral is left in doubt, the risk is not assumed by him. When, therefore, by the terms of the lease, or the circumstances, it is apparent that the existence of mineral is to be determined by the operations under the lease, then the non-existence or subsequent exhaustion of the mineral terminates the lessee's liability thereunder. On the other hand, if the existence of mineral in the land has already been determined, the lessee is bound to pay royalty in strict accordance with his contract, although the mineral be exhausted. The amount of mineral in a tract of land can be known to no one before it is mined, and it is the lessee's own folly if he does not by covenant protect himself from the result of possible exhaustion. Where, however, the existence of the mineral is not actually known, either the contract is made for the purpose of determining whether or not it does exist, or it is made upon the assumption that it does exist; and if it does not, there is a case of