25, 1873, and unless sooner terminated, ended February 25, 1876.

The action is for three years rent or compensation to be paid on failure to mine, and not for so much clay actually mined. It is founded on that clause of the agreement which provides that the plaintiff in error, "shall mine or cause to be mined, or pay for, not less than two thousand tons of clay every year, and shall pay therefor twentyfive cents per ton for every ton of clay monthly as it is taken away."

The petition does not aver, that any particular quantity of clay was taken away. It is alleged that possession of "said clay lands," was taken, and "large quantities of fire clay mined and taken away, but not to exceed 6,000 tons."

As this was not a lease of the land at an agreed rent per annum, but a contract for the exclusive privilege of mining and removing during the term "all the clay that is good No. 1 fire clay," it follows, we think, that unless there was such clay on the land, nothing was payable under the

contract.

The clause of the contract, termed therein a condition, which binds the party of the second part, to mine or cause to be mined or pay for, not less than 2,000 tons of clay every year, is not an obligation to mine or pay for any other clay, than that leased to the party. The word "clay" in this clause, means the kind of clay contracted for, viz: "Good No. 1 fire clay."

The defendant bound itself, in consideration of the privilege granted, to mine and pay for this kind of clay, at the rate specified, payable monthly as it is taken away. It was to mine or pay for, at least 2,000 tons per year.

It could not monopolize this clay for three years, without compensation, nor take a less amount than two thousand tons per year, but was tomine at least that amount. If it did not, it was to pay for that amount each year. If it failed to mine this quantity each year, it obligated itself to pay for that amount. To hold that the plaintiff below, was entitled to an annual rent of $500 per year, if there was no clay of the quality, or in quantity sufficient, that was minable, would do violence to the terms of the agreement, and to principles of justice. It would be paying for a worthless privilege.

1. Did the court err in its charge, as to the burden of proof?

The original petition did not allege that there was any good No. 1 fire clay on the land. For want of such an averment, a demurrer was sustained, and an amendment was made, containing this allegation. It was put in issue by the first defense. The issue thus tendered, naturally cast the burden on plaintiff, if determined by the form of the pleadings, merely.

On the trial the general charge was that the burden on this issue was on defendant, but the first request of the defendant, was given, which was to the effect that the plaintiff must satisfy the jury, by a preponderance of proof that such clay was on the land in mi ble quantity.

Without attempting to narmonize these dif

ferent rulings, let us assume that the plaintiff in error is correct in saying the effect of the charge was to cast the burden on defendant.

Upon general principles, applicable to cases of this kind, and in accordance with the opinion in Cook v. Andrews, 36 O. St., 178, we think the burden was properly on defendant. It is admitted in the pleadings, that possession of these clay lands was taken by defendant under the contract. This was an exclusive possession for all purposes embraced in the contract, and included the right to test the lands for such clay if such test was necessary.

From the bill of exceptions, it appears to have been an open question whether there was such clay to be found. It was the duty of defendant to mine and remove same, if found, or pay the amount stipulated per year.

The exclusive right to test these lands being in the defendant, the burden is on him to prove the non-existence of such clay in minable quality. and quantity. Cook v. Andrews. Supra.

The court charged, that if there was good No. 1 fire clay on the land in such quantities as would justify mining it, the jury need not enquire further, but must find for the plaintiff, that is if the clay was there, of the quality and quantity, that should have been mined and taken away, the defendant must pay for at least 6,000 tons, whether mined and removed or not. In this, we think there was no error. They were, however, further charged, that if such clay was not on the land, it did not follow that the issues should be found for the defendant, but the jury must enquire further. In this further inquiry, they were instucted; 1st That it was the duty of defendant to test the land in a a reasonable time, for such clay. 2d If it did not do so in one year, sufficiently to determine its quantity and quality, and continued mining and taking away "clay," during the second year, then it became liable at the end of the year for 2,000 tons, whether it received that amount of clay or not. And 3d Ifduring the second year it mined and took away "clay," under the lease, and did not abandon the lease before the commencement of the third year, it was liable to pay for 2,000 tons for that year, whether it took away that quantity or not.

The plain import of these instructions were, that although there was no such clay on the land as defendant had contracted for, yet, if the defendant failed to make a test during the first year, and held over into the second year, mining and taking away clay, (whether of the quality contracted for, is not stated,) then the defendaut was liable to pay for 2,000 tons for that year, whether there was any good No 1 fire clay there or not, and the same rule was given to guide the jury, for the second and third years.

Notwithstanding this, the court, at the request of defendant, charged, that before the plaintiff could recover, the jury must be satisfied by a preponderance of evidence, that there was upon said lands, good No. 1 fire clay, in such quantities, as would justify its being taken out, but at

the same time and in the same connection, refused to give the following charge without omitting therefrom the words, "nor is he required to pay for the same if he should refuse to take it," and gave said instruction, omitting said words.

"If the jury shall find, from the evidence, that there was to be found on the lands of the plaintiff some good No. 1 fire clay, but that the same was found in such small quantities, or was so mixed up with other fire clay unfit for use, or other ingredients that rendered it unfit for use as a good No. 1 fire clay, that it could not be taken out and made fit for use except at an expense exceeding the value of the clay so obtained, and would not, for that reason, have been mined by any man of ordinary care and prudence in that business, the defendant was not required to take such fire clay as a good No. 1 fire clay, nor is he required to pay for the same, if he should refuse to take it." That is if there was no No. 1 fire clay of sufficient quantity, that could be taken out and made fit for use, except at such great expense as would not justify a man of ordinary care and prudence in that business in doing it, the defendant, though not required to mine it, is yet bound to pay for it if taken out though no of the quality contracted for.

This modification of the request is irreconcilable with the prior request of the defendant, which was given, but is in harmony with the main charge of the court, which we have found to be erroneous in holding defendant liable, during his possession and while searching for the kind of clay he had contracted for, although none was on the land. In view of the fact that the jury rendered a verdict for the full quantity of the kind of clay that defendant was bound to take out, if there in minable quantity, for the whole term, and of the fact that the evidence put in issue the existence of such clay, we think this judgment should be reversed." It was likely to confuse and mislead the jury upon the most important issue in the case. For this reason alone the judgment should be reversed. Wash. Ins. Co. v. Mer. & Mar. Ins. Co. 5 O. St. 450.

By the charge of the court, and by the modification of the second request of the defendant, this issue became immaterial, if there was any quantity of the required kind of clay, however small, on the land, or, indeed, if none at all.

Judgment reversed and cause remanded. [This case will appear in 38 O. S.]

LEASE FOR LIFE.

SUPREME COURT OF OHIO.

ANDREW WARNER, ADMINISTRATOR,

V.

CHESTER TANNER AND BRIGHTON TANNER.

April 25, 1882.

T. & B. executed an instrument under seal, signed by two witnesses, and acknowledged by T. before a justice of the peace, in which instrument it is covenanted that T. leases to B. two acres of land (described in the instrument), with the use of water in adjoining lands of T. and privilege of conducting it in pipes "to a cheese house to be erected on said premises, T. reserving enough water to accommodate the stock kept on the farms of T. And B. is to build a cheese house on the premises, and agrees to pay T. for the use of the premises and the privileges aforesaid, thirty dollars per annum on the first day of October, in each year, while the premises shall be used as and for the manufacture of cheese; and when the premises shall no longer be used for such purpose, the premises, together with the privileges aforesaid, shall revert to T., said B. having the privilege of removing all buildings and fixtures put upon said premises by him."

Held, that this was a lease to B. for life, provided he continued to use the premises for the manufacture of cheese thereon and paid rents, with the right at any time to remove the buildings and fixtures placed on the premises by such lessee.

Judgment affirmed.

Error to the District Court of Geauga County. Chester Tanner and Lucius Bartlett_signed and sealed the following instrument: "This indenture made at Chester, Geauga County, Ohio, this 1st day of February, 1864, by and between Chester Tanner of the first part, and Lucius Bartlett of the second part, witnesseth, that said Chester Tanner hath this day leased to said Lucius Bartlett the following described premises." Here follows the description, the premises containing two acres of land. "And said Tanner also leases to said Bartlett the privileges of conducting the springs, and the use of the same, in pipes or otherwise, on the brook that crosses said premises, commencing at the spring at the roots of the chestnut tree standing northerly of the premises aforesaid, and all available springs, to a cheese house to be erected on said premises, said Tanner reserving enough water to accommodate the stock kept on the farms of said Tanner. And said Bartlett is to build a cheese house on said premises, and agrees to pay said Chester Tanner for the use of said premises and the privileges aforesaid, the sum of thirty dollars per annum, to be paid on the first day of October, in each year, while said premises shall be used as and for manufacturing cheese; and when said premises shall no longer be used for such purpose, the premises, together with the privileges aforesaid, shall again revert to said Tanner, said Bartlett having the privilege of removing all buildings and fixtures put upon said premises by him."

The instrument was also subscribed by two witnesses, acknowledged by Tanner before a justice of the peace, and was delivered by Bartlett to the county recorder, who recorded it.

Bartlett immediately entered into possession

of the premises in pursuance of the instrument, erected thereon a cheese house, dwelling house and stable, and occupied the premises, conducting the business of manufacturing cheese thereon, and paid the taxes regularly, from that time until his death, which occurred on December 27, 1874. The amount which he paid to Tanner on October 26, 1874, was in full of the rent to February 1st, 1875.

On January 22, 1875, Chester Tanner requested Warner, administrator of Bartlett, to remove the buildings and fixtures from the premises, and informed him that the lease was terminated from and after the expiration of the time for which rent had been paid.

In February, 1875, Chester Tanner, with Brighton Tanner acting under his authority, entered into possession of the premises, against the protest of Warner, administrator of Bartlett, and on Febuary 17, 1875, Warner, as such administrator, brought suit against them in the Court of Common Pleas of Geauga County. The petition contains a statement of the facts above mentioned, and concludes as follows: "The plaint iff further says that the said defendants, willfully and maliciously contriving and intending to injure said estate of said Lucius Bartlett, deceased, and to depreciate the value thereof, on the 11th day of February, 1875, wrongfully, wantonly, and against the remonstrance, opposition, and forbidding of the plaintiff, with force and arms, took possession of said land, the buildings thereon, as aforesaid, and appurtenances thereto, and the said defendants forbade this plaintiff and all persons to come upon said lands or take away said property or in manner to interfere therewith. That, on the 15th day of February, 1875, this plaintiff demanded said leased lands and the appurtenances thereto, being the the lands, buildings, utensils and appurtenances aforesaid, and the defendants then and there refused to deliver the same, or any part thereof, to this plaintiff, and, on the 16th day of February, 1875, at which time and place said property was by this plaintiff, as administrator, as aforesaid, advertised for sale, as provided by law, said defendants appeared with their attorney, and forbade the sale of said property, and claimed and declared that all and every part of said property belonged to said defendant, Chester Tanner, and publicly read a paper in the presence and hearing of this plaintiff and sundry persons assembled at said sale, to such effect; and so said plaintiff says the said defendants have converted said lease and property and effects to their own use, to the damage of said plaintiff, as such administrator, of six thousand dollars, for which he asks judgment against said defendants and for costs.'

In the court of common pleas the cause was tried to a jury on the petition, answer and testimony, and a verdict was rendered in favor of Warner, as such administrator, for $3,500. Among other witnesses called by Warner was O. Sanders, who testified as follows:

"I made cheese for Bartlett; worked for Tanner in 1866 and 1867; was at Bartlett's very often. I was there two weeks before he died. He lived in the house at the factory. The factory in 1874 was in good condition.-There were four vats, a boiler and engine, 30 presses, receiving can in good condition, steam churns. Do not know how many cows we had in 1874. The factory was in a good dairy country. There was a good supply of water. There was a house and barn on the premises."

Thereupon the plaintiff's counsel put to said witness the question following, to wit:

"What was the cheese factory building, in connection with the house and barn and appurtenances sufficient to manufacture into cheese the milk of from 800 to 1000 cows, together with a lease of two acres of land, to continue so long as the same should be used for the purpose of manufacturing cheese at an annual rental of $30, worth, for the purpose of manufacturing cheese, on the 15th day of February, 1875 ? ”

To which question the defendant objected, but the court overruled said objection, and allowed said witness to answer said question, and against the defendants' objection said witness answered said question, as follows:

"It was worth $5,000."

To which ruling cf the court, in overruling said objection, to said questionand in permitting said witness to answer said question, and to the answer as given, the defendant by his counsel at the time excepted.

On cross-examination said witness, among other things, testified as follows: "The factory building and the dewelling house and barn were worth together from $700 to $1000."

No witness placed the value of the buildings higher than the witness Sanders, and no witness testified more favorably to Warner, the administrator.

The defendants requested the court to charge the jury as follows:

"That the said lease is in contemplation of the law, one that ends and terminates at and on the death of the lessee, and if you shall find from the evidence in the case, that the said Lucius Bartlett, the lessee, died on the 27th day of December, 1874, the said lease thereby ended, and all rights of the plaintiff as the administrator of the said Bartlett then ceased and determined, save and except the right and privilege to remove the fixtures, erections and improvements put and placed on said leased premises by the said Bartlett in his lifetime; and that, inasmuch as this. suit is not instituted or brought to recover damages for preventing the plaintiff from taking off and removing from said leased premises the fixtures, erections and buildings so placed thereon by said Bartlett, I charge you that if you shall find the facts as in this proposition stated proven to your satisfaction, the plaintiff cannot re

cover."

But the court refused so to charge, and the defendants excepted; and thereupon the court

And the Court further charged the jury "that in law said lease was, in its nature and character personal property, which upon the death of said Bartlett, vested in the administrator of said Bartlett, as part of the personal estate of said Bartlett, and said administrator, the plaintiff, had the right in law to sell the same to pay the debts of said Bartlett." To which charge of the court so given, the defendants at the time excepted.

And the court further charged the jury "that in law the said lease was a lease which contin ued and run for an indefinite and unlimited period of time, and so long as the said lessee or his assigns or personal representative should use the property covered by said lease for the purpose of manufacturing cheese thereon and therein, and that the extent and duration of said lease as to time was in law limited only upon the happening of the event that the owner and holder of said lease should cease to use and

occupy the same for the purpose of manufacturing cheese." To which charge of the court so given to the jury, the said defendauts by counsel at the time excepted.

And thereupon the court further charged the jury "that if they should find from the evidence in the case that the said lessor, Chester Tanner, undertook by notice to terminate and put an end to said lease under a claim of right so to do, and took possession of said leased ground and buildings erected thereon, under a claim that said lease was terminated and said leased property and buildings had reverted to said Chester Tanner, and did forbid the plaintiff as such administrator to sell the same or in any manner interfere with it, such facts so fourd in law, would be a conversion of said buildings and said lease, and the plaintiffs in this action, in such case, would be entitled to recover the full value of said buildings and said lease." To which charge of the court so given, the defendants by counsel at the time excepted.

And thereupon the court further charged the jury upon the question of damages, as follows: "That in determining the amount of damages the plaintiff is entitled to recover, if the jury should find in favor of the plaintiff, they should consider and take into account not only the value of the buildings on said leased ground disconnected from said lease, but also the value of the lease itself, and if they find for the plaintiff, they should allow the plaintiff, as damages, the value of the lease and buildings for the purpose of manufacturing cheese at the time they were

converted to their own use by the defendants." To which charge so given the defendants by their counsel excepted.

The plaintiff below having on suggestion of the court remitted from the verdict the sum of $1.000.00, the court overruled the defendants' motion for a new trial, and rendered judgment in favor of Warner, as such administrator, for $2,500. That judgment was reversed in the district court, and this petition in error is filed in this court by Warner to reverse the judgment of reversal.

Durfee & Stephenson, for plaintiff in error.
Tinker & Alvord, for defendants in error.
OKEY, C. J.

In the court of common pleas, the jury was charged that, by the instrument executed by the parties, an interest was acquired which would endure as long as the premises might be used for the manufacture of cheese thereon; and that this action, which is in its nature trover for the conversion of real estate, might be maintained by the lessee's administrator. To state such a position is to refute it. The only other instance of a similar action which I remember, was met in Railroad Co. v. Robbins, 35 O. St. 531.

The administrator had no right of action, in any view of this case, except with respect to property merely personal which may have remained on the premises when this suit was brought; nor had he a right of action as to such personal property, unless the defendants converted it to their own use. Leases of land of a chattel quality are chattels real, and go to the administrator; but he has no interest in the freehold terms or leases. All interests for a shorter period than a life, or, in other words, all interests for a definite space measured by years, months or days, are deemed chattel interests, and, independently of statutory provision, go to the administrator, (Northern Bank v. Roosa, 13 Ohio, 334; 30 Ohio St. 285;) while not only is a term for one's own life or the life of another deemed a freehold, but if one grant an estate to a man and woman during coverture, or as long as the grantee or lessee shall dwell in such a house or use the premises for the manufacture of cheese thereon, or for any like uncertain time, the grantee or lessee has in judgment of law a freehold, and upon the death of such grantee or lessee, his administrator will have no interest. Williams on Ex. (6th Am. ed.) 749; Taylor's L. & T. § 52; Beeson app., Burton, res., 12 C. B. (74 E. C. L.) 647.

1

This instrument was a lease to Bartlett for his life, subject to be defeated when the premises were no longer used for the manufacture of cheese thereon, or by the non-payment of rent. Hurd v. Cushing, 7 Pick. 169; Bowles' case, 11 Coke 79 b, S. C. Tudors Lead. Cas. on Real Prop. 27-100; 4 Wait's Act. & Def. 502.

Leases may be at will, for years, or for life. So, they may be of perpetual duration. Foltz v. Huntley, 7 Wend. 210; Taylors L. & T. § 72. Indeed, they may be for any period which will not exceed the interest of the lessor in the premises. And

ing the trustees, individually, while said work was be

fication annexed to an estate by a grantor (Sperry v. Pond, 5 Ohio, 387, 24 Am. Dec. 296,) or lessor (Fritz v.Huntley, supra,) whereby, among other things, the estate or term granted may be defeated or terminated.

The fact that Bartlett was required to, and did place upon the premises valuable structures, which he could remove only when the premises were no longer used for the manufacture of cheese thereon, satisfies us that this was not alease at will, nor a lease from year to year. On the other hand, the instrument contains no words indicating an intenton to grant a fee in the premises; and yet the construction which the court of common pleas placed upon it would render it, in effect, precisely the same as though the grant had been to Bartlett, his heirs and assigns. It would endure, according to that construction, until the premises were no longer used for the manufacture of cheese, or the lessee ceased to pay rent, precisely as in case of a grant in fee with such condition. Having regard to the whole instrument, and not overlooking the fact that the right to remove buildings, etc., is, in terms, limited to Bartlett, we are satisfied, as already stated, that a lease for life was granted to Bartlett, which interest might have been defeated during his life in the way stated. The cases relied on by the plaintiff in error, (White v. Fuller, 38 Vt. 194; Lewis v, Effinger, 30 Pa. St. 281; Cook v. Bisbee, 18 Pick, 527.) are in no respect inconsistent with the view here stated; and the statutes and decisions relating to permanent leasehold estates in this state, which are also cited and relied upon by the plaintiff in error, shed no light on this case.

The remaining question is as to the competency of the inquiry made of the witness Sanders as to the value of the premises. While the opinion. of a witness as to the value of an estate is in a proper case admissable, (Railroad Co. v. Ball, 5 Ohio St. 568,) imay w 11 be doubted whether the rule will warrant, in a case like this, such a lumping estimate as the court permitted to go to the jury. But we do not find it necessary to express any definite opinion upon the question. Judgment affirmed.

[This case will appear in 38 O. S.]

INJURY-CITY RESPONSIBLE FOR NEGLIGENCE OF ITS EMPLOYEES.

SUPREME COURT OF OHIO.

CITY OF IRONTON v. KELLY.

April 18, 1882.

Where the trustees of waterworks in a city, authorized and directed the digging of trenches in the streets for the purpose of laying water mains, in pursuance of a previous ordinance of council, and it is made the duty of the superintendent to cause such trenches to be dug and mains laid, the city is responsible for his negligent acts in doing the work causing injury, while such authority and direction remain unrevoked; notwithstand

have nothing further to do with the work.

Error to the District Court of Lawrence County.

W. A. Hutchins for plaintiff in error.

O. F. Moore and W. H. Enochs for defendant in error.

LONGWORTH, J.

The city of Ironton, by its council, resolved to extend its system of water works by laying additional pipes in several streets, among which was Chestnut street; and appropriated $16,336.00, from the sale of bonds, to pay for the same.

The Trustees of water works ordered the extension to be made, and advertised for proposals to furnish the pipe necessary for the extension, and accepted the bid of Dennis Long & Co. of Louisville. Before, however, any written contract was executed, a dispute arose between the trustees and the finance commitee of the council respecting the disbursement of the fund so appropriated; the former insisting that it should be under their sole control, while the latter claimed the right to audit all bills for work done and materials furnished.

The trustees were unwilling to go on with the work, under these conditions, and immediately notified Long & Co. that they would not receive or pay for any pipe furnished by them; and refused to have anything to do with the proposed extension.

They notified King, their superintendent, to this effect, although it does not appear that any formal, official action was taken by them; at least no record of such action is found in the bill of exceptions.

Certain members of council, being desirous that the work should be done, urged the contractors to send on the pipe and assured them that payment would be made therefor. The pipe was sent and subsequently paid for in some manner not apparent from the evidence. They also persuaded King to go on with the work and the pipe was laid accordingly. The trustees did not discharge King, or even order him to stop the work, although they individually notified him that he was doing a thing which he had no right to do, and cautioned him that he was acting upon his own responsibility. We do not think that it appears from the evidence that the trustees, at any time, really objected to the work being done; but that they simply refused to have anything to do with it themselves or to be in any way responsible therefor.

The evidence tends to show that on the night of November 16th, 1875, the ditch on Chestnut street at its intersection with Third street, which had been dug that day, was carelessly left open at the crossing, without any protection or guard and without light or precaution used to warn passers by of the danger; and that plaintiff, Mrs. Kelly, on the night in question, while walking up Third street, without any fault on her part, fell into the ditch and sustained serious injury.