confined to franklinite and iron ores where they existed separate and distinct, and apart from the zinc. The terms "zinc ores and "franklinite and iron ores were used as descriptions of the land granted and reserved. The former meant those veins in which other zinc ores predominated, the latter those in which franklinite predominated, and which were known and designated as franklinite ore.

Reversed in Court of Errors and Appeals in Zinc Co. v. Franklinite Co., 15 Eq. 418 (1862).

On the grounds: 1. The deed was to be construed most strongly against grantor.

2. The vein in question was the only one on the premises containing zinc, and it must be adjudged zinc ore; otherwise nothing would pass by the deed.

3. At the date of the deed the vein was called zinc ore.

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Lehigh Zinc & Iron Co. v. N. J. Zinc & Iron Co., 55 Law, 350 (1893). F. conveyed to plaintiff's grantor "all the zinc, copper, lead, silver, and gold ores, and also all other metals or ores containing metals, except the metal or ore called franklinite and iron ore when it exists separate from the zinc existing, found, or to be found tain land. F. then conveyed to defendant's grantor all the reserved iron ore called franklinite, and all the other reserved ores and metals not granted and conveyed to" plaintiff's grantor. Held, in the plaintiff's title are all veins, strata, or masses of zinc ore which are capable of being mined, and all veins, strata, or masses of franklinite and iron ores which are not separate from the zinc' and fit to be mined; in the defendant's title are only those veins, strata, and masses of franklinite and iron ores which are separate from the zinc' and are fit for mining."

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6

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"Zine" in this phrase means veins, strata, or masses of zinc ore in quantity and richness worth mining for zinc.

"These deeds speak also with reference to the time of their execution, and are to be applied to their subject-matter now as they would have been applied then. If a specified vein, stratum, or mass of franklinite can be removed without interfering with any zinc ore which in quantity or richness was worth mining for zinc, that franklinite or iron ore would then, under our view of these deeds, have been excepted from the plaintiff's title, and consequently it must be excepted now. No advance in the arts and sciences can extend those grants over any portions of the Mine Hill farm, which they would not at their date have been deemed to embrace by then applying to their terms and their subject matter correct rules of construction."

Defendant offered to prove that the vein from which the ore in suit was taken was in 1848 usually called franklinite; that although this vein was then known to contain certain compounds of zinc mixed with the franklinite, yet these were then worthless as zinc ore, and were for that reason rejected by plaintiff's grantor, while it held the plaintiff's title; that of all the ores hitherto discovered on the Mine Hill farm, the only zinc ore then deemed commercially valuable was the red oxide of zinc or red zinc ore, which is scarcely found in the ore worked by the defendant; that this vein was then available only as an iron ore, and did not become useful in the arts for the manufacture of zinc until

1866; and that those holding plaintiff's title have always acquiesced in the occupation of this mine by those holding defendant's title. This was admissible.

Armstrong v. Lake Champlain Granite Co., 147, 495 New York. (1895). By deed of March 30, 1871, there was conveyed to plaintiff's grantor "all the mineral ores" 66 on a tract, together with all needed ways and privileges for mining and raising and removing said mineral ores," etc. By deed of May 18, 1871, between the same parties, without recital of the first deed, but for the same consideration, there was conveyed"all the mineral and ores (on the same premises), with the right to mine and remove the same; also, the right to sink shafts, and sufficient surface to erect suitable buildings for machinery and other buildings necessary and usual for mining purposes, and to make explorations for minerals and ores, saving reservations to the State of New York."

Held, the first deed did not pass a deposit of granite. The term "minerals" in the second deed, standing alone, would have passed such a deposit, but the context indicated that the parties had in view only such minerals as are to be got by mining in the ordinary sense; that is, by underground and not by open workings. Consequently the deposit of granite did not pass by either deed.

Gibson v. Tyson, 5 Watts, 34 (1836). A reservaPennsylvania. tion in a deed of conveyance of "all mineral or magnesia of any kind, . . . with all bricks and blocks of soapstone as I, the said B., may want for my own use," entitles the grantor to chromate of iron afterwards found.

Kier v. Peterson, 41, 357 (1861). The lessee of land leased for the purpose, and with the privilege, of boring salt wells and manufacturing salt, so long as the contemplated salt well should be carried on, under certain provisions for forfeiture, and for a rent of every twelfth barrel of salt manufactured, is entitled to petroleum which rises to the surface with the salt water. Trover by the lessor for this petroleum will not lie.

He

Woodward, J., concurred in the decision but not in the reason. held that trover was an improper action, because the lessee, though having no right of property, had the right of possession of the petro leum, as necessary, in order to separate the salt water. But the lesso was entitled to compensation and an account for the oil.

Kitchen v. Smith, 101, 452 (1882). Trunkey, J., was of opinion that a lessee under an oil lease might not conduct gas away from the land and appropriate it to his own use. "I think the dissenting opinion by Woodward, J. (Kier v. Peterson, supra), is sustained by his reasoning and the authorities therein cited. Gas often escapes in large quantities from oil wells, and is of great value for fuel. conducted to towns and extensively used in mills and dwelling-houses. Its value may greatly exceed the value of the oil produced. That a tenant who has only the right to take oil or salt may conduct away the gas and appropriate it to his own use, seems to me an arbitrary conclusion."

It is

Erwin's Ap., 20 W. N. C. 278 (1887). A contract was made for the exclusive right to all the iron ore on a certain tract of land, with the right to wash on said premises such ore as should require washing,

a certain royalty per ton to be paid for each ton of clean merchantable iron ore taken. For some time the refuse from the washing of the ore was allowed to accumulate in a dam, being considered of no value. Its utility for the manufacture of paint having been discovered, the lessee proposed to remove it, and the lessor filed a bill to restrain such removal. The testimony of experts and others was that while containing iron ore, and so classified by scientists, this refuse matter was commercially known as ochre.

Held, that the iron ore intended by the contract was the iron ore at that time mined with a well-known use and application, and that the crude ochre in the dam did not pass under the terms of the lease.

Doster v. Friedensville Zinc Co., 140, 147 (1891). A lease was granted for the purpose of searching for minerals and fossil substances, and conducting mining and quarrying operations to any extent he might deem advisable," the lessee to pay forty cents per ton "for all zinc ores, sulphurets of zinc, and iron ores," and to have the right to separate clean sulphuret ores from the rock, and pay only for the clean ore; and in case any other than zinc ores were removed, they were to be paid for at the same rate. In the process of extracting the ore, the rock was crushed and washed, and the refuse, which contained seven and a half per cent of zinc ore, was treated as waste. Subsequently it was discovered that this mineral was valuable in the manufacture of paving blocks. It was held to be the property of the lessor, and the lessee having sold it, had to account for its price, and was enjoined from further removal of it. The purpose of the lease was concerning ores only.

Moody v. Alexander, 145, 571 (1892). A vendor contracted in writing to convey to the vendee a certain tract of land, reserving "all oil and gas in or under the said land, with free mining privileges of all kinds, right of way for roads of all kinds, also free ingress and egress over, into, upon, and under said lands," compensation to be made for any land used in, and all damages caused by, his "mining operations." By the terms of the contract the only minerals excepted out of the grant were oil and gas. The phrase "mining privileges" was referable to them, applying to the processes and means of obtaining oil and gas, and did not extend the exception to coal, iron, and other substances not named, especially in view of the rule that a grant is to be construed most strongly against the grantor.

Lance v. L. & W. Coal Co., 163, 84 (1894). A lease of all the anthracite coal under a certain tract provided that the lessee should pay a royalty on all coal mined that would pass over a five-eighths of an inch mesh, and that the lessor should have all the culm or refuse coal from the mines, and should have the right to enter upon the premises at any time and remove the same, but that the lessees might use so much of the culm as might be necessary for any purpose about their works.

At the time the lease was made no general market existed for coal that would not pass over a five-eighths mesh. Some of this subsequently becoming marketable, it was sold by the lessee. Held, they were not bound to account therefor to the lessor. He was not entitled to all the coal which passed through a screen with a five-eighths inch

mesh, but only to refuse coal; "that is to say, to coal refused by the lessee because it was unsalable, and which of necessity, to make room for the operation of the works, was removed and thrown into a pile. The lease included all the coal on the land, and the provision as to sizes on which no royalty was to be paid was a stipulation in favor of the lessee, not a reservation of anything of value by the lessor."

The piles of refuse were regarded as of no value, but the belief existed that in the future, means might be devised to utilize the large quantities of good coal that they contained. The lease was negotiated upon this basis. Pearne v. Coal Creek M. & M. Co., 90, 619 (1891). A

Tennessee. deed describing a tract of land, and conveying "three

fourths of the land and one-half the stone coal of the whole tract, except the minerals of all the precious kinds, passes one-half the stone coal and three-fourths of all other metals not of the "precious kind." Petroleum Co. v. Transportation Co., 28, 210 West Virginia. (1886). Natural gas is incapable of being absolute property, and is the subject of qualified property only, belonging to him who first appropriates it. A landlord leased to his tenant certain premises for the purpose of taking oil therefrom at a fixed royalty; the tenant opened a well which produced both oil and gas, the former in small quantities pumped from the well and for which the royalty was paid, and the latter in large quantities issuing by its own force from the well, and which was separated by the tenant and by means of pipes conducted beyond the leased premises, and sold or appropriated by the tenant to his own use. In an action brought by the landlord for an account of the value of the gas the tenant was held not accountable. If the tenant had attempted to use the land to produce gas alone under the terms of the lease, his term would have been forfeited; or if the gas had not escaped of its own force, he would not have been permitted to pump it without the lessor's consent.

The appropriation of natural gas would not enter into the estimate of damages in an action of trespass.

THE right of a lessee of minerals to assign in whole or in part his lease, or the rights and premises thereof, depends upon the nature of his estate. If his estate is an estate in fee in the minerals, he, of course, has all the powers of alienation and subdivision possessed by any other owner of a fee. If his lease is a lease of the land with appurtenant mining rights, he has likewise full powers of assignment and division. If, however, his estate is an incorporeal hereditament, he may assign it, but not divide it, unless the power is expressly conferred in the grant. If it is a mere license, the right is personal and incapable of assignment. This subject has already been incidentally referred to, and the authorities will be found under the different subdivisions of Chapter II. As between the assignee of a lease and the lessor the former acquires all the rights of his assignor as they existed at the time of the assignment, unless there is something in the lease to the contrary. So also he is bound by all the covenants of the lease, and by all the obligations thereunder to which the lessee was subject at the date of assignment. All covenants which by their terms or nature are continuous, or which, in other words, run with the land, are binding upon him during his ownership of the lease; but covenants by the lessee to do anything at a time prior to the date of the assignment do not bind him. He is not liable, therefore, for the lessee's breach thereof.

Owing to the privity of contract existing between the lessor and his lessee, the latter is not released from the covenants in his lease by reason of the subsequent assignment by him to a third