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25, 1873, and unless sooner terminated, ended ferent rulings, let us assume that the plaintiff in February 25, 1876.

error is correct in saying the effect of the charge The action is for three years rent or compensa- was to cast the burden on defendant. tion to be paid on failure to mine, and not for so Upon general principles, applicable to cases much clay actually mined. It is founded on that of this kind, and in accordance with the opinion clause of the agreement which provides that the in Cook v. Andrews, 36 O. St., 178, we think the plaintiff in error, “shall mine or cause to be burden was properly on defendant. It is admined, or pay for, not less than two thousand tons of mitted in the pleadings, that possession of these clay every year, and shall pay therefor twenty- clay, lands was taken by defendant under the confive cents per ton for every ton of clay monthly tract. This was an exclusive possession for all as it is taken away.”

purposes embraced in the contract, and included The petition does not aver, that any particu- the right to test the lands for such clay if such lar qpantity of clay was taken away. It is al- test was necessary. leged that possession of "said clay lands," was From the bill of exceptions, it appears to have takeh, and"large quantities of fire clay mined been an open question whether there was such and taken away, but not to exceed 6,000 tons." clay to be found. It was the duty of defendant

As this was not a lease of the land at an agreed to mine and remove same, if found, or pay the rent per annum, but a contract for the exclusive amount stipulated per year. privilege of mining and removing during the The exclusive right to test these lands being term “all the clay that is good No. 1 fire clay," in the defendant, the burden is on him to prove it follows, we think, that unless there was such the non-existence of such clay in minable quality. clay on the land, nothing was payable under the and quantity. Cook v. Andrews. Supra. contract.

The court charged, that if there was good No. 1 The clause of the contract, termed therein a fire clay on the land in such quantities as condition, which binds the party of the second would justify mining it, the jury need not enpart, to mine or cause to be mined or pay for, not quire further, but must find for the plaintiff, less than 2,000 tons of clay every year, is not an that is if the clay was there, of the qualobligation to mine or pay for any other clay, ity and quantity, that should have

been mined than that leased to the party. The word "clay and taken away, the defendant must pay for at in this clause, means the kind of clay con- least 6,000 tons, whether mined and removed or tracted for, viz: “Good No. 1 fire clay."

not. In this, we think there was no error. The defendant bound itself, in consideration They were, however, further charged, that if of the privilege granted, to mine and pay for such clay was not on the land, it did not follow this kind of clay, at the rate specified, payable that the issues should be found for the defendant, monthly as it is taken away. It was to mine or but the jury must enquire furiher. In this furpay for, at least 2,000 tons per year.

ther inquiry, they were instucted; 1st That it It could not monopolize this clay for three was the duty of defendant to test the land in a years, without compensation, nor take a less a reasonable time, for such clay. 2d If it did amount than two thousand tons per year, but was not do so in one year, sufficiently to determine its to mine at least that amount. If it did not, it quantity and quality, and continued mining and was to pay for that amount each year. If it taking away “clay," during the second year, then failed to mine this quantity each year, it obli- it became liable at the end of the year for 2,000 gated itself to pay for that amount. To hold tons, whether it received that amount of clay or that the plaintiff. below, was entitled to an an- not. And 3d If during the second year it mined and nual rent of $500 per year, if there was no clay took away “clay,” under the lease, and did not of the quality, or in quantity sufficient, that abandon the lease before the commencement of was minable, would do violence to the terms of the third year, it was liable to pay for 2,000 tons the agreement, and to principles of justice. It for that year, whether it took away that quanwould be paying for a worthless privilege. tity or not.

1. Did the court err in its charge, as to the The plain import of these instructions were, burden of proof?

that although there was no such clay on the The original petition did not allege that there land as defendant had contracted for, yet, if the was any good No. 1 fire clay on the land. For defendant failed to make a test during the first want of such an averment, a demurrer was sus- year, and held over into the second year, mining tained, and an amendment was made, contain and taking away clay, (whether of the quality ing this allegation.' It was put in issue by the contracted for, is not stated,) then the defendaut first defense. The issue thus tendered, naturally was liable to pay for 2,000 tons for that year, cast the burden on plaintiff

, if determined by whether there was any good No: 1 fire clay there or not, the form of the pleadings, merely.

and the same rule was given to guide the jury, On the trial the general charge was that the

for the second and third years. burden on this issue was on défendant, but the Notwithstanding this, the court, at the request first request of the defendant, was given, which of defendant, charged, that before the plaintiff was to the effect that the plaintiff must satisfy could recover, the jury must be satisfied by & the jury, by a preponderal e of proof that such preponderance of evidence, that there was upon clay was on the land in mi ble quantity. said lands, good No. 1 fire clay, in such quanti

Without attempting to uarmonize these dif- | ties, as would justify its being taken out, but at

on

the same time and in the same connection, re

LEASE FOR LIFE. fused to give the following charge without omitting therefrom the words, “nor is he required to

SUPREME COURT OF OHIO. pay for the same if he should refuse to take it," and gave said instruction, omitting said words.

ANDREW WARNER, ADMINISTRATOR, “If the jury shall find, from the evidence, that there was to be found on the lands of the plain- CHESTER TANNER AND BRIGHTON TANNER. tiff some good No. 1 fire clay, but that the same was found in such small quantities, or was so

April 25, 1882. mixed up with other fire clay unfit for use, or T. & B. executed an instrument under seal, signed by other ingredients that rendered it unfit for use two witnesses, and acknowledged by T. beforo a justice as a good No. 1 fire clay, that it could not be

of the peace, in which instrument it is covenanted that

T. leases to B. two acres of land (described in the instrutaken out and made fit for use except at an ex

ment), with the use of water in adjoining lands of T. and pense exceeding the value of the clay so obtained, privilege of conducting it in pipes "to & cheese and would not, for that reason, have been

house to be erected said premises, T. reservmined by any man of ordinary care and pru

ing enough water to accommodate the stock kept on the

farms of T. And B. is to build a cheese house on the dence in that business, the defendant was not re- premises, and agrees to pay T. for the use of the premi. quired to take such fire clay as a good No. 1 fire ses and the privileges aforesaid, thirty dollars per annum

on the first day of October, in each year, while the premclay, nor is he required to pay for the same, if he

ises shall be used as and for the manufacture of cheese; should refuse to take it.” That is if there was no No. and when the premises shall no longer be used for such 1 fire clay of sufficient quantity, that could be purpose, the premises, together with the privileges aforetaken out and made fit for use, except at such

said, shall revert to T., said B. having the privilege of re

moving all buildings and fixtures put upon said premigreat expense as would not justify a man of or

ses by him." dinary care and prudence in that business in do- Held, that this was a lease to B. for life, provided be ing it, the defendant, though not required to

continued to use the premises for the manufacture of

cheese thereon and paid rents, with the right at any time mine it, is yet bound to pay for it if taken out to remove the buildings and fixtures placed on the promthough'nou of the quality contracted for.

ises by such lessee. This modification of the request is irreconcila

Judgment affirmed. ble with the prior request of the defendant,

Error to the District Court of Geauga County. which was given, but is in harmony with the Chester Tanner and Lucius Bartlett_signed main charge of the court, which we have found and sealed the following instrument: “This into be erroneous in holding defendant liable, denture made at Chester, Geauga County, Ohio, during his possession and while searching for this 1st day of February, 1864, by and between the kind of clay he had contracted for, although Chester Tanner of the first part, and Lucius none was on the land. In view of the fact that Bartlett of the second part, witnesseth, that said the jury rendered a verdict for the full quantity Chester Tanner hath this day leased to said of the kind of clay that defendant was bound to Lucius Bartlett the following described premitake out, if there in minable quantity, for the

ses." Here follows the description, the premises whole term, and of the fact that the evidence containing two acres of land. " And said Tanput in issue the existence of such clay, we think ner also leases to said Bartlett the privileges of this judgment should be reversed.

It was

conducting the springs, and the use of the same, likely to confuse and mislead the jury upon the in pipes or otherwise, on the brook that crosses most important issue in the case. For this rea- said premises, commencing at the spring at the son alone the judgment should be reversed. roots of the chestnut tree standing northerly of Wash. Ins. Co. v. Mer. & Mar. Ins. Co. 5 0. St. the premises aforesaid, and all available springs, 450.

to a cheese house to be erected on said premises, By the charge of the court, and by the modifica- said Tanner reserving enough water to accomțion of the second request of the defendant, this modate the stock kept on the farms of said Tanissue became immaterial, if there was any quan

ner. And said Bartlett is to build a cheese tity of the required kind of clay, however small,

house on said premises, and agrees to pay said on the land, or, indeed, if none at all.

Chester Tanner for the use of said premises and Judgment reversed and cause remanded. the privileges aforesaid, the sum of thirty dol[This case will appear in 38 0. S.]

lars 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, to gether 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, “I made cheese for Bartlett; worked for Tanerected thereon a cheese house, dwelling house ner in 1866 and 1867; was at Bartlett's very ofand stable, and occupied the premises, conduct- ten. I was there two weeks before he died. He ing the business of manufacturing cheese lived in the house at the factory. The factory thereon, and paid the taxes regularly, froin that in 1874 was in good condition. There were four time until his death, which occurred on Decem- vats, a boiler and engine, 30 presses, receiving ber 27, 1874. The amount which he paid to can in good condition, steam churns. Do not Tanner on October 26, 1874, was in full of the know how many cows we had in 1874. The facrent to February 1st, 1875.

tory was in a good dairy country. There was & On January 22, 1875, Chester Tanner requested good supply of water. There was a house and Warner, administrator of Bartlett, to remove the

barn on the premises." buildings and fixtures from the premises, and Thereupon the plaintiff's counsel put to said informed him that the lease was terininated" | witness the question following, to wit: from and after the expiration of the time for “What was the cheese factory building, in which rent had been paid.

connection with the house and barn and appurteIn February, 1875, Chester Tanner, with nances sufficient to manufacture into cheese the Brighton Tanner acting under his authority, en. milk of from 800 to 1000 cows, together with a tered into possession of the premises, against the lease of two acres of land, to continue su long as protest of Warner, administrator of Bartlett, and the same should be used for the purpose of man. on Febuary 17, 1875, Warner, as such adminis-ufacturing cheese at an annual rental of $30, trator, brought suit against them in the Court of worth, for the purpose of manufacturing cheese, Common Pleas of Geauga County. The petition on the 15th day of February, 1875 ? " contains a statement of the facts above men- To which question the defendant objected, but tioned, and concludes as follows: "The plaint the court overruled said objection, and allowed iff further says that the said defendants, will said witness to answer said question, and against fully and maliciously contặiving and intending the defendants' objection said witness answered to injure said estate of said Lucius Bartlett, de said question, as follows: ceased, and to depreciate the value thereof, on " It was worth $5,000.” the lith day of February, 1875, wrongfully, To which ruling cf the court, in overruling wantonly, and against the remonstrance, opposi- said objection, to said questionand in permittion, and forbidding of the plaintiff, with force ting said witness to answer said question, and and arms, took possession of said land, the build- to the answer as given, the defendant by his ings thereon, as aforesaid, and appurtenances counsel at the time excepted. thereto, and the said defendants forbade this On cross-examination said witness, among plaintiff and all persons to come upon said lands

other things, testified as follows: "The factory or take away said property or in manner to in building and the dewelling house and barn terfere therewith. That, on the 15th day of Feb

were worth together from $700 to $1000." ruary, 1875, this plaintif demanded said leased

No witness placed the value of the buildings lands and the appurtenances thereto, being the higher than the witness Sanders, and no witness the lands, buildings, utensils and appurtenances testified more favorably to Warner, the adminisaforesaid, and the defendants then and there re

trator. fused to deliver the same, or any part thereof, to The defendants requested the court to charge this plaintiff, and, on the 16th day of February, the jury as follows: 1875, at which time and place said property was by this plaintiff, as administrator, us aforesaid, law, one that ends and terminates at and on the

"That the said lease is in contemplation of the advertised for sale, as provided by law, said de- death of the lessee, and if you shall find from the fendants appeared with their attorney, and for- evidence in the case, that the said Lucius Bartlett, bade the sale of said property, and claimed and

the lessee, died on the 27th day of December, declared that all and every part of said property 1874, the said lease thereby ended, and all rights belonged to said defendant, Chester Tanner, and

of the plaintiff as the administrator of the said publicly read a paper in the presence and hear- Bartlett then ceased and determined, save and ing of this plaintiff and sundry persons assem, except the right and privilege to remove the fixbled at said sale, to such effect; and so said

tures, erections and improvements put and plaintiff says the said defendants have converted placed on said leased premises by the saia BartBaid lease and property and effects to their own

fett in his lifetime; and that, inasmuch as this use, to the damage of said plaintiff, as such ad

suit is not instituted or brought to recover damministrator, of six thousand dollars, for which

ages for preventing the plaintift from taking off he asks judgment against said defendants and

and removing from said leased premises the firfor costs.

tures, erections and buildings 80 placed thereon In the courtof common pleas the cause was tried by said Bartlett, I charge you that if you shall to a jury on the petition, answer and testimony, find the facts as in this proposition stated proven and a verdict was rendered in favor of Warner, to your satisfaction, the plaintiff cannot reas such administrator, for $3,500. Among other cover." witnesses called by Warner was 0. Sanders, who But the court refused so to charge, and the dotestified as follows:

fendants excepted; and thereupon the court

charged the jury, among other things, as fol. converted to their own use by the defendants." lows:

To which charge so given the defendants by “That said lease did not, in and by its terms, their counsel excepted. create and give to the lessee therein named The plaintiff below having on suggestion of permanent leasehold estate, and that said lease the court remitted from the verdict the sum of is not real property, and did not, upon the death $1.000.00, the court overruled the defendants' of said Bartlett descend to and vest in the heirs motion for a new trial, and rendered judgment at law of said Bartlett.” To which charge , so in favor of Warner, as such administrator

, for given, the defendant by his counsel then and $2,500. That judgment was reversed in the disthere duly excepted.

trict court, and this petition in error is filed in And the Court further charged the jury "that

this court by Warner to reverse the judgment of in law said lease was, in its nature and charac

reversal. ter personal property, which upon the death of Durfee & Stephenson, for plaintiff in error. said Bartlett, vested in the administrator of said Tinker & Alvord, for defendants in error. Bartlett, as part of the personal estate of said

OKEY, C. J. Bartlett, and said administrator, the plaintiff, In the court of common pleas, the jury was had the right in law to sell the same to pay the charged that, by the instrument executed by the debts of said Bartlett." To which charge of the parties, an interest was acquired which would court so given, the defendants at the time ex

endure as long as the premises might be used for cepted.

the manufacture of cheese thereon; and that this And the court further charged the jury" that action, which is in its nature trover for the conin law the said lease was a lease which contin.

version of real estate, might be maintained by ued and run for an indefinite and unlimited period

the lessee's administrator. To state such a posiof time, and so long as the said lessee or his

tion is to refute it. The only other instance of assigns or personal representative should use

a similar action which I remember, was met in the property covered by said lease tor the pur

Railroad Co. o. Robbins, 35 0. St. 531. pose of manufacturing cheese thereon and

The administrator had no right of action, in therein, and that the extent and duration of any view of this case, except with respect to said lease as to time was in law limited only property merely personal which may have reupon the happening of the event that the owner

mained on the premises when this suit was and holder of said lease should cease to use and brought; nor had he a right of action as to such occupy the same for the purpose of manufactur- personal property, unless the defendants coning cheese." To which charge of the court so

verted it to their own use. Leases of land of a given to the jury, the said defendauts by coun

chattel quality are chattels real, and go to the sel at the time excepted.

administrator; but he has no interest in the

freehold terms or leases. All interests for a And thereupon the court further charged the

shorter period than a life, or, in other words, all jury "that if they should find from the evidence interests for a definite space measured by years, in the case that the said lessor, Chester Tanner, undertook by notice to terminate and put an

months or days, are deemed chattel interests, end to said lease under a claim of right 80 to do,

and, independently of statutory provision, go to

the administrator, (Northern Bank v. Roosa, 13 and took possession of said leased ground and Ohio, 334; 30 Ohio St. 285;) while not only is buildings erected thereon, under a claim that

a term for one's own life or the life of another said lease was terminated and said leased prop deemed a freehold, but if one grant an estate to a erty and buildings had reverted to said Chester

man and woman during coverture, or as long as Tanner, and did forbid the plaintiff as such administrator to sell the same or in any manner

the grantee or lessee shall dwell in such a house interfere with it, such facts so fourd in law,

or use the premises for the manufacture of cheese

thereon, or for any like uncertain time, the would be a conversion of said buildings and said lease, and the plaintiffs in this action, in such hold, and upon the death of such grantee or les

grantee or lessee has in judgment of law a freecase, would be entitled to recover the full value

see, his administrator will have no interest. 1 of said buildings and said lease." To which

Williams on Ex. (6th Am. ed.) 749; Taylor's L. charge of the court so given, the defendants by counsel at the time excepted.

& T. § 52; Beeson app., Burton, res., 12 C. B. (74

E. C. L.) 647. And thereupon the court further charged the This instrument was a lease to Bartlett for jury upon the question of damages, as follows: his life, subject to be defeated when the prem"That in determining the amount of damages ises were no longer used for the manufacture of the plaintiff is entitled to recover, if the jury cheese thereon, or by the non-payment of rent. should find in favor of the plaintiff, they should Hurd v. Cushing, 7 Pick. 169; Bowles' case, 11 consider and take into account not only the Coke 79 b, S. C. Tudors Lead. Cas. on Real Prop. value of the buildings on said leased ground dis- 27-100; 4 Wait's Act. & Def. 502. connected from said lease, but also the value of Leases may be at will, for years, or for life. So, the lease itself, and if they find for the plaintiff they may be of perpetual duration. Foltz o. Hunt they should allow the plaintiff

, as damages, thé ley, 7 Wend. 210; Taylors L. & T. 8.72. Indeed, value of the lease and buildings for the purpose they may be for any period which will not exceed of manufacturing cheese at the time they were the interest of the lessor in the premises. And

whatever the term may be under a lease, it can

ing the trustees, individually, while said work was bebe made subject to a condition, which is a quali- ing done notified the superintendent that they would fication annexed to an estate by a grantor

have nothing further to do with tbe work. (Sperry v. Pond, 5 Ohio, 387, 24 Am. Dec. 296,) or

Error to the District Court of Lawrence County. lessor (Fritz v. Huntley, supra,) whereby, among other things, the estate or term granted may be

W. A. Hutchins for plaintiff in error. defeated or terminated.

0. F. Moore and W. H. Enochs for defendant The fact that Bartlett was required to, and did

in error. place upon the premises valuable structures, which he could remove only when the premises

LONGWORTH, J. were no longer used for the manufacture of cheese The city of Ironton, by its council, resolved to thereon, satisfies us that this was not alease at will,

extend its system of water works by laying addinor a lease from year to year. On the other hand, tional pipes in several streets, among which was the instrument contains no words indicating Chestnut street; and appropriated $16,336.00, an intenton to grant a fee in the premises; and from the sale of bonds, to pay for the same. yet the construction which the court of common The Trustees of water works ordered the expleas placed upon it would render it, in effect, tension to be made, and advertised for proposals precisely the same as though the grant had been urnish the pipe necessary for the extension, to Bartlett, his heirs and assigns. It would en- and accepted the bid of Dennis Long & Co. of dure, according to that construction, until the Louisville. Before, however, any written conpremises were no longer used for the manufac- tract was executed, a dispute arose between the ture of cheese, or the lessee ceased to pay rent, trustees and the finance commitee of the counprecisely as in case of a grant in 'fee with cil respecting the disbursement of the fund so such condition. Having regard to the whole in-appropriated; the former insisting that it should strument, and not overlooking the fact that the be under their sole control, while the latter right to remove buildings, etc., is, in terms, lim- claimed the right to audit all bills for work done ited to Bartlett, we are satisfied, as already stated, and materials furnished. that a lease for life was granted to Bartlett, The trustees were unwilling to go on with the which interest might have been defeated during work, under these conditions, and immediately his life in the way stated. The cases relied on

notified Long & Co. that they would not receive by the plaintiff in error, (White v. Fuller, 38 or pay for any pipe furnished by them; and reVt. 194; Lewis v, Effinger, 30 Pa. St. 281; Cook fused to have anything to do with the proposed v. Bisbee, 18 Pick, 527.) are in no respect incon- extension. sistent with the view here stated; and the stat

They notified King, their superintendent, to utes and decisions relating to permanent lease

this effect, although it does not appear that any hold estates in this state, which are also cited

formal, official action was taken by them; at and relied upon by the plaintiff in error, shed least no record of such action is found in the bill no light on this case.

of exceptions. The remaining question is as to the competency

Certain members of council, being desirous of the inquiry made of the witness Sanders as to

that the work should be done, urged the conthe value of the premises. While the opinion tractors to send on the pipe and assured them of a witness as to the value of an estate is in a that payment would be made therefor. The proper case admissable, (Railroad Co. v. Ball, 5 pipe was sent and subsequently paid for in some Ohio St. 568,) imay w ll be doubted whether the manner not apparent from the evidence. They rule will warrant, in a case like this, such a also persuaded King to go on with the work and lumping estimate as the court permitted to go the pipe was laid accordingly. The trustees did to the jury. But we do not find it necessary to

not discharge King, or even order him to stop express any definite opinion upon the question. the work, although they individually notified Judgment affirmed.

him that he was doing a thing which he had no [This case will appear in 38 O. S.]

right to do, and cautioned him that he was act

ing upon his own responsibility. We do not INJU5Y-CITY RESPONSIBLE FOR NEG

think that it appears from the evidence that the LIGENCE OF ITS EMPLOYEES.

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 SUPREME COURT OF OHIO.

any way responsible therefor.

The evidence tends to show that on the night CITY OF IRONTON v. KELLY.

of November 16th, 1875, the ditch on Chestnut

street at its intersection with Third street, which April 18, 1882.

had been dug that day, was carelessly left open Where the trustees of waterworks in a city, authorized at the crossing, without any protection or guard and directed the digging of trenches in the streets for

and without light or precaution used to warnthe purpose of laying water mains, in pursuance of a previous ordinance of council, and it is made the duty passers by of the

danger; and that plaintiff, Mrs. of the superintendent to cause such trenches to be dug Kelly, on the night in question, while walking and mains laid, the city is responsible for his negligent

up Third street, without any fault on her part, acts in doing the work cuusing injury, while such authority and direction remain unrevoked; notwithstand

fell into the ditch and sustained serious injury.

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