author: Henry E. Sickles, Referee. Henry E. Sickles, Referee : By the Court.—Sedgwick Ch. J. Ingraham, J., (concurring as to the first cause of action, and dissenting as to the second).

text:
    AUGUSTA G. GENET, Appellant and Respondent v. THE PRESIDENT, MANAGERS & COMPANY OF THE DELAWARE & HUDSON CANAL CO., Appellants and Respondents.

      Contradicting, varying, etc., written instruments by parol evidence, application of rule excluding such evidence—Evidence, reception and rejection of governed by the lex fori and not the lex loci—Mining contract, construction of—lessee of mines, as to rights of, irrespective of express stipulation—Injunctive relief, granted against acts in excess of privilege given by mining contracts—Estoppel, when not arising from standing by.

    The plaintiff in her complaint set forth a written contract (under seal) made between her and defendant (the provisions of which so far as they affect the question involved, are referred to in the opinions of the referee and of Judge Ingraham), and alleged for a first cause of action that defendant before and at the time, and after the execution of said contract in writing, and as a consideration for the delivery thereof, made a certain promise to and agreement with her, which promise and agreement it had broken, to her damage of §150,000. On the trial plaintiff sought to sustain this cause of action by oral proof as to the promise and agreement counted on.
    For a second cause of action the complaint alleged that defendant had constructed works on her land of a capacity much greater than was necessary to mine therefrom the yearly maximum quantity of coal, stipulated to be mined by the written contract whereby it used her lands to greater extent than it was necessary to use them for mining plaintiff’s coal and had constructed tunnels from plaintiff’s land to adjoining lands of defendant to lead water therefrom to the aforesaid works where it is pumped up and thrown off on top of plaintiff’s land, and that defendant used said tunnels and works to mine coal from said adjoining lands; that all of said acts were in excess of the privileges granted them and in fraudulent avoidance of the obligations of its written contract with plaintiff, to plaintiff’s damage of $5,000 a year; and prayed for a money judgment and an injunction. Issue having been joined by defendant’s answer, the action was referred. It appeared in the evidence that defendant had sunk a shaft (called the Marvin shaft), built a breaker, and erected machinery and other structures on plaintiff’s land of greater capacity than was necessary to mine from plaintiff’s land the yearly maximum quantity of coal stipulated to be mined therefrom; that it had used such shaft, breaker, machinery and structures to mine coal from its own lands before exhausting from plaintiff’s land all the coal it was authorized to mine therefrom; that it had placed a large quantity of culm from coal mined from lands other than those of plaintiff upon the surface of plaintiff’s land; that it had connected the said Marvin shaft with two other shafts on its own land, and with a part of its land known as the “ farm’’ by a gangway and gangways, through which water run from said two shafts upon plaintiff’s land, and from said farm to plaintiff’s land and said Marvin shaft.
    It also appeared that plaintiff had sustained damages by reason of defendant’s piling on plaintiff’s land culm from coal mined from other lands to the amount of §8,000.
    It also appeared that plaintiff knew of the sinking of the Marvin shaft, the building of the breaker, and the erection of the other structures, and did not object thereto. Upon the referee’s report judgment was' entered in conformity therewith, dismissing the complaint as to the first cause of action and as to the second cause of action giving plaintiff a money judgment for $3,000, damages and her costs, and an injunctive judgment enjoining defendant: 1st “ from using or in any way making use of the said Marvin shaft, breaker, machinery and other structures erected by it upon the plaintiff’s said land for mining and preparing for market coal from its own lands, or from any other or adjoining or contiguous lands, until all the coal which it is authorized to, or required to mine from plaintiff’s said land under said written agreement between plaintiff and defendant had been taken out and prepared for market.’’ 2d. “ From depositing culm, or aiding or assisting or allowing culm, from coal mined from the lands, other than the said lands of plaintiff, to be deposited upon the surface of plaintiff’s said land.” 3d. Requiring and directing defendant “to close up the gangway and gangways made by it connecting the said Marvin shaft with said other two shafts so far at least as would prevent the water from said two other shafts from running therefrom to and upon plaintiff’s said land; also to close up the headings or gangways leading from said Marvin shaft to defendant’s land known as the ‘ farm ’ so far as to prevent the water from the workings in said farm flowing upon the plaintiff’s land and to said Marvin shaft.”

      Held, 1st. That parol evidence to the effect that both before, and at the time of the execution of the lease, but before its delivery, defendant promised and agreed to work industriously and take out the greatest quantity of coal, and that plaintiff should profit by it as much as possible, was inadmissible within the rule excluding parol evidence which tends to contradict, vary, etc., a written contract.
    2d. That the question as to the rejection or admission of evidence is a field into which the laws of another state cannot intrude. It is to be determined exclusively by the laws of this state in an action pending and tried therein.

      3d. That by the written contract the defendant was only obligated to mine 10,000 tons in each of the first two years, and 20,000 tons in each succeeding year, but had the privilege of mining more than the quantities so stipulated.
    4th. That the dismissal of the complaint as to the first cause of action was correct.
    5th. That the object the parties had in view in entering into the written contract, so far as appears by its terms, was the mining of coal that might be found in plaintiff’s land, and the rights and privileges granted by it were merely incidents, and were designed to be limited to the actual requirements for a successful accomplishment of that purpose; that the piling of culm from coal mined from lands other than plaintiff’s upon the surface of plaintiff’s land, and maintaining of the gangways in the judgment referred to, so far as they conducted water on plaintiff’s land, were in excess of the privilege granted by the contract and that the injunctive relief granted in respect thereof was properly granted (Ingraham, J., dissenting) ; also held the use of the Marvin shaft sunk, breaker, machinery and other structures built and erected on plaintiff’s land for mining and preparing for market coal from lands other than plaintiff’s “ except during such time as defendant shall use the said shaft, breaker, machinery and other structures for the mining, prepar- ' ing and forwarding coal in and from plaintiff’s said land to the amount or quantity such shaft, machinery and other structures are or shall be adapted to mine, prepare, forward, or” before all the coal which it is authorized, or required to mine from said plaintiff’s land under said written agreement had been taken out and prepared for market, was in excess of the privileges granted by that agreement, and that the judgment giving the injunctive relief in respect thereof, modified by the insertion therein immediately before the words “until all the coal which it is authorized ” the above words included between quotation marks, should be affirmed. This although plaintiff knew of the sinking of the shaft, and the erection of the breaker, etc., and did not object,she not being thereby estopped from claiming that defendant should use such shaft, etc., primarily for the mining of coal in her land, since their construction was an announcement to plaintiff by defendant that it elected to avail itself of the. option given to it by the agreement to mine more than the maximum yearly quantity which by the agreement it was obligated to mine. Ingraham, J., dissenting.
    6th. That the money judgment was correct and should be affirmed. Ingraham, J., dissenting.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided May 10, 1888.

      Appeal by both parties from the judgment herein.
    The action was tried before a referee. The complaint contained two causes of action. The referee dismissed the complaint as to the first cause of action and as to the second cause of action directed a judgment against the defendant for damages, and for injunctive relief. Judgment was entered in conformity with the report. Plaintiff appeals from so much of the judgment as dismisses the complaint as to the first cause of action, and defendant appeals from so much as awards damages and injunctive relief against it on the second cause of action.
    The facts sufficiently appear in the head-notes, and in the opinions of the referee.
    The referee delivered the following opinion on the dismissal of the complaint as to the first cause of action:
   Henry E. Sickles, Referee.

The language of the lease or contract upon which this action is based, as to the duties imposed upon the defendant in the matter of mining coal, is so clear and unmistakable tha,t there can be no reasonable doubt as to its meaning. The defendant, the party of the second part, agrees, “to mine from said land, in the year one thousand eight hundred and sixty-four, not less than ten thousand tons of coal; in the year one thousand eight hundred and sixty-five, not less than ten thousand tons, and twenty thousand in each and every year thereafter. It being understood that the said party of the second part is to pay for ten thousand tons in each and every year, whether the same shall be actually taken out in such year or not, and that in case the maximum quantity of twenty thousand tons is not taken out in one thousand eight hundred and sixty-six or any subsequent year, interest at the rate of seven per centum per annum, shall be paid by the said party of the second part to the said parties of the first part, their heirs or assigns, upon such sums as the deficiency shall amount to, said interest to be continued until the full quantity' agreed to be taken out as aforesaid shall be reached,” provided, “ that the said party of the second part shall have the privilege of taking out, without charge, at any time thereafter a quantity of coal equal in amount to the deficiency they may have paid for in any previous year or years.” •

Then, after providing for certain contingencies, which, if they arise, may terminate or modify the liability of defendant, the contract continues : “ And the said

party of the second part agrees to pay for the coal mined and taken out in pursuance of this agreement at the rate of twelve and a half (12') cents for every ton of (2240) twenty-two hundred and forty pounds of clear merchantable coal, exclusive of culm or mine waste, that will pass through a mesh of one half inch square.” .... “And it is further understood and agreed that if the said party of the second part elect to do so, they may increase the quantity beyond that stipulated to be mined in any one year, and, at their option may diminish the quantity for any succeeding year or years by an amount corresponding with such increase ; provided that the quantity mined shall not be less in the aggregate than as hereinbefore stipulated.”

No ingenuity of argument will change the meaning of this language. The defendant obligates itself to mine not less than ten thousand tons of coal for the first two years and not less than twenty thousand tons thereafter. If it fails so to do, provision is made for indemnity to the plaintiff for the breach. The defendant does not obligate itself to mine more under any circumstances, but, in precise and emphatic phrase, limits its liability to that amount. It has the privilege to mine more, but if it avails itself of that privilege, the excess is first to be applied to make up deficiencies, if any, for former years, and then, if there is still an excess, it has the option to diminish the quantity (i. e., to mine less than the prescribed quantity) “ for any succeeding year or years by an amount correspondent with such increase.” In other words the defendant has the privilege of mining more than an average amount of 20,000 tons per year (after the first two), which it absolutely agrees to mine, but carefully limits its liability to that amount. There are no words which expressly or by implication require the defendant to mine with reasonable diligence, and to import them into the contract would be to materially vary and modify it, and this may not be done however conclusively the plaintiff may be able to make it appear by parol evidence that defendant’s officers and agents did in fact agree to so mine.

The old common law rule, that parol evidence is inadmissible to vary or modify, to add to or take from the terms of a written contract, is still preserved in all its vigor in this state. There are very many cases which it is claimed have established exceptions to or modifications of the rule. But these exceptions and modifications are more apparent than real, they simply define its boundaries and exclude from it matters which are not included in its words.

Thus, if the language of a contract is ambiguous, resort may be had to the surrounding circumstances, and sometimes to the statements of the parties, not to vary the terms of the instrument, but to show in what sense the parties understood them. Where the words of a contract are plain, their meaning unmistakable, and they are conclusive as to the intent, no resort may be had to the circumstances or the statements to show that the parties really intended something else, except where a reformation of the contract is sought for because of mistake or fraud.

The question has been very frequently before the Court of Appeals of late, and without citing a long array of authorities, it will be sufficient perhaps to quote from the opinion of Andrews, J., in Corse v. Peck, decided in June last and not yet reported, to show the position of the court. He says, “ The rule that parol evidence is inadmissible to add to or vary the terms of a written contract precludes evidence of the negotiations which preceded, or conversations which accompanied, the making of it, unless necessary to explain ambiguous provisions the meaning of which cannot be ascertained by an inspection of the wuitten instrument.” See also Snowdon v. Guion, 101 N. Y. 458, 462.

So, too, it has been held that the rule does not apply where the original contract was verbal and part only has been reduced to writing, or to collateral undertakings.

But where the written contract indicates that it was the intention and design to express therein the-whole contract between the parties, it is conclusive. As said by Finch, J., in Eighmie v. Taylor, 98 N. Y. 288, 294: If we may go outside of the instrument to prove that there was a stipulation not contained therein and so that only part was put in writing, and then because of that fact enforce the oral stipulation, there will be little of value left in the rule itself.”

It is claimed on the part of the plaintiff that at least so far as the testimony of what occurred between her agent and defendant’s president at the time of the delivery of the contract is concerned, it.is competent, and that defendant is bound thereby.

1st. That it was the interpretation put by the agents of the parties, who acted for them, upon the contract, and that the parties are thereby estopped from disputing it or claiming that the contract reads otherwise. In other words, the argument is that, however clear and unambiguous may be the language of a contract, it is proper to show that the parties in considering its terms orally agreed that it should mean something else, and that something else must take the place of the words of the contract, and thus an entirely different contract be established. When the courts go" thus far, from that moment the rule considered so important, so carefully laid down, ceases to exist.

2d. It is claimed that as the contract was delivered only in reliance upon the promise of defendant's agent that they would work the mine industriously, “work out the greatest quantity of coal,” that /this was enforceable as a separate and independent agreement. Such a parol agreement, to be enforceable, must be consistent with the terms of the written contract, not directly antagonistic to and subversive of it. The cases cited by the learned counsel for the plaintiff go no further than this. I listened with interest to his ingenious and able argument, and perused with care his exhaustive brief, and would not have been displeased could I have had pointed out to me some practicable way to avoid the rule, as there is an apparent equity in her case. But I find none in the argument or brief, and the oral evidence must be rejected unless another position counsel takes is maintainable, and that is—

3. This is a Pennsylvania contract, and its construction must be governed by the laws of that state, and in that state written contracts may be changed or modified by parol evidence. It is not claimed that there is any statute in Pennsylvania which controls the subject, but that it is a modification made by the courts of that state of the common law rule. There are cases in that state as in this, where, to prevent the doing of an injustice, the courts have been ingenious in avoiding the rule and in discriminating between it and the case under consideration. But there were none called to my attention which go to the length necessary to aid the plaintiff here.

But, again, the question depends upon a rule of procedure, i. e., as to the reception or rejection of evidence, and this is a field into which the laws of another state cannot intrude; it is to be determined exclusively by the laws of this state.

I am constrained, therefore, to grant the motion to strike out the testimony objected to as to the negotiations and conversations preceding, and those accompanying, the delivery of the lease, and as to the first count to dismiss the complaint.

The motion to dismiss as to the second count is denied. There is some evidence tending to show that defendant has exceeded the rights given to it by the lease, extensive as they are. It would not be profitable to discuss this evidence for the purpose of determining the particulars in which plaintiff’s rights have been violated, the extent of such violation, or, perhaps, to determine definitely that a cause of action had been absolutely established. Suffice it to say there is evidence tending to establish a cause of action and which will not justify a nonsuit.

The referee also delivered the following opinion in his decision as to the second cause of action:—

Henry E. Sickles, Referee :

The causes for complaint for alleged illegal action on the part of defendant for which plaintiff seeks redress under the second count of her complaint are threefold.

1st. That defendant has, instead of using the privileges which were granted to it solely for the purpose of enabling it to carry out the provisions of the contract Exhibit “ A,” in regard to the mining of the coal on plaintiff’s land, exclusively, or principally for that purpose, has unlawfully used them for the mining of its own coal, and this to such an extent that it has seriously interfered with the work to aid in which they were granted.

2d. That defendant has excavated and is using a gangway connecting the Marvin shaft with defendant’s other collieries, not for any object or purpose connected with the mining of the coal in plaintiff’s land, but mainly for the purpose of draining the water from the other collieries down upon plaintiff’s land, and thus is imposing a burden upon the said land not authorized or contemplated by the contract.

3d. That defendant is piling the culm or refuse coal arising from the coal mined from its land upon the surface of plaintiff’s land, thus appropriating and using so much of the surface for its own purposes which is not needed or used for the purpose for which alone defendant is entitled to use any portion of the surface. The facts alleged are established by the evidence, and I am satisfied that by no reasonable construction of the instrument, Exhibit “A,” is the use thus made of plaintiff’s property and the burdens so imposed upon it warranted or authorized thereby, and neither the able arguments of defendant’s counsel nor a careful perusal of the 'learned and exhaustive brief furnished by them and examination of the authorities cited have convinced me to the contrary.

1st. That the object the parties had in view in entering into the contract Exhibit “ 4,” at least so far as appears from the terms and provisions thereof, was the mining of coal that might be found in plaintiff’s land; that the rights and privileges granted by plaintiff to defendant were merely as incidents, and were designed to be limited to the actual requirements for a successful accomplishment of that purpose can scarcely be successfully disputed.

The plaintiff grants to defendant the right, and defendant assumed the obligation to mine all the coal in said land which can be economically mined, and to enable the defendant to exercise this right and to perform its covenants, plaintiff grants to it the right of way for all “railroads, .... slopes, tunnels,” etc., it “may find necessary to construct across or upon said tract with the right to erect dams upon the surface for the proper mining of said coal, also the use of land for digging all air shafts that they (i. e., defendants) may consider necessary, with the right to dig the same, also the use of all the land they may require for the purpose of erecting .... buildings they may deem necessary for the prosecution of their business, together with land for piling coal or culm, and all other appurtenances they may require for mining .... preparing and forwarding the coal to be mined under this agreement.”

By the very language of the agreements the rights and privileges are limited to the necessities of the work contemplated. It may be conceded, as defendant’s counsel claim, that defendant is the sole and exclusive judge as to what is necessary, but in determining that question it may look only to this work. It is not authorized to take into consideration any other object or purpose. If it did consider or was influenced in its determination by other purposes connected with its adjoining property, it was not authorized by the contract, and was a breach of good faith. When, therefore, defendant sunk the Marvin shaft, and erected the breaker and other buildings, its officers through whom it acts, virtually announced to plaintiff, “we consider works-of this size and capacity necessary for the successful and profitable mining of the coal in your land as rapidly as w'e propose to mine it,” and inasmuch as the shaft and breaker, etc., were clearly and admittedly of much greater capacity than would be required for the mining of the twenty thousand tons per annum, which defendant bound itself to mine and to which it limited its obligation, their construction was an announcement to plaintiff that defendant had elected to avail itself of the option given to it to mine a greater quantity. Plaintiff, therefore, had a right to assume that defendant intended and good faith required that it should use the shaft and structures, primarily, at least, for the mining of the coal in her land. Plaintiff was interested in having this coal mined as rapidly as possible, and the greater the capacity of the structures, so long as they were no greater than was necessary for this purpose, the better it suited her interest. The fact, therefore, that plaintiff did not object to the sinking of a shaft and the erection of a breaker of the size and capacity of the one in question was not a concession of a right to exceed the necessities of the case. It seems to me justice and equity entitle her to insist that inasmuch as defendant has, in the exercise of its right to determine what those necessities require, determined that these structures were necessary for the mining of the coal, in her land, it is estopped by that determination, and may not now claim that they were in fact much larger than were necessary, and so that it could use them for purposes of its own without interference with the proper and expeditious mining of plaintiff’s coal. It remains, then, to be seen, whether the contract gives to defendant a right to use these structures for mining of coal on its own land where it does interfere with the mining of plaintiff’s coal; in fine, whether defendant has the right to elect so to do, provided it pay the royalty on twenty thousand tons per annum to stop entirely the mining of coal on plaintiff’s land and to use the structure it has erected and the excavation it has made exclusively for mining its own land, as, if the argument of defendant’s counsel is tenable at all, it must go to this extent. A right so inconsistent with the spirit and intent of the contract, so subversive of its purposes, should be based on clear and unmistakable language in the contract. It is claimed to exist under this clause therein, “ and it is further agreed and understood that the party of the second part .... may use and occupy the rights and privileges hereby granted and the openings, buildings, fixtures and appurtenances made and constructed by them for the mining, preparing and forwarding coal under this agreement, for the mining, preparing and forwarding coal from any adjoining or contiguous lands until all the land they desire to take coal from and that can be mined and taken out through said openings, shafts and slopes shall be exhausted.” ■ Following this is this provision, “That the party of the second part .... shall have the right to rebuild, reconstruct or remove any and all the buildings, fixtures.. . . . and improvements during the continuance of this agreement and until the coal in the adjoining and contiguous lands that can be worked from those openings, shafts, slopes and tunnels shall have been worked out.” These two provisions are at the end of the contract after full provision has been made for the mining of all of the coal on plaintiff’s land that defendant obligates itself to mine, and after full provision is made for the termination of its obligation in this respect. The language of the two clauses, as well as their position in the contract, instead of conveying by any reasonable construction the idea that the rights thus granted were to be exercised while the obligations imposed upon defendant as to the mining of the coal in the land in question remained unfulfilled and in force and while they would interfere with or retard that work, indicate that they were to be exercised only after the main purpose of the contract was substantially carried out and accomplished, and inasmuch as only rights and privileges necessary for this work are granted, they cannot well be used during the prosecution of the worlc for other purposes without interfering with and retarding the work. That the purpose in view in making the contract had been subordinated to defendant’s other purposes and that the rights and privileges granted solely as aids to the accomplishment of that purpose have been used principally for the mining of coal on defendant’s other land and for the benefit of its other collieries cannot be disputed. Defendant has mined up to May 1, 1886, through the Marvin shaft 497,614 tons of coal from plaintiff’s land and 608,771 from its own. In November, 1886, the last month for the working of which an account was presented, it mined 3,027 tons from plaintiff’s land and 9,609 tons from its own. It did mine in one year from plaintiff's land over .89,000 tons, thus showing its capacity in that respect", and yet the average output is only about one half that amount, and is growing gradually less, while that from defendant’s land is increasing-. -

But, it is urged by defendant’s counsel, the company mined and has paid to plaintiff the royalty on more than the quantity oí coal it obligated itself to mine from her land and therefore she has sustained no damages and is entitled to no relief. Plaintiff has submitted to the imposition of heavy burdens upon her land under the supposition, as I have attempted to show, that they were to be used for her benefit. That they would have been so used to a much greater extent, at least, than they have if defendant had not assumed to use them to such an extent for its own purposes, is very clear, and if it is permitted to continue such use the inducement will always be to subordinate the interests of plaintiff to its own, to mine the coal upon which it pays nothing in preference to that upon which plaintiff is entitled to royalties, and it is in precisely such a case where plaintiff cannot be compensated in damages for the injury inflicted upon her that the aid of a court of equity may be invoked. If defendant be prohibited from exceeding the privileges granted to it by the contract, the temptation to make the plaintiff’s interest subordinate to its own will be removed. If it had worked the colliery to its full capacity in mining the coal in which plaintiff is interested, it might, perhaps, have urged with plausibility that it should not be restrained from mining what coal could be mined from its own land through the shaft and breaker without interference with such working. But as it has not shown a disposition to thus work the colliery, it cannot complain if it be confined to the exercise of the privileges granted by the contract. It seems to me, therefore, that defendant is equitably entitled to a judgment restraining defendant from using the shaft, breaker, etc., for mining its own coal until the coal in plaintiff’s land, so far as defendant is bound to mine it, is removed.

2d. The gangway driven to connect the Marvin with the Leggetts Creek and the Van Storch shafts coneededly was not excavated for the purpose of mining the coal in question. According to defendant’s testimony, it was in the first place designed to serve as a second opening to comply with the requirements of the Pennsylvania laws enacted some ten years after the execution of the contract, and then, it having been discovered that it could be used advantageously for that purpose, it was arranged and finished so as to serve as a drain to bring the waters collecting in the other two collieries down to the Marvin shaft, thus saving to defendant the expense of running the pumps in the other collieries. Defendant claims the right to do this: 1st. Because it owns the vein of coal in plaintiff’s and the adjoining lands, and had the right to drive the gangway through it for any purpose it deemed it best so to do. 2d. Plaintiff has- no remedy if, in the ordinary course of mining the water is discharged upon her land. It is' not necessary to dispute the proposition that defendant is by the contract in question made the owner of the coal. Conceding this for the purpose of the argument, plaintiff still remains the owner of the layers of earth and rock between the veins of coal. Defendant excavated down to the layer under the fourteen-foot vein, and so discharges the water upon plaintiff’s land. The gangway was not made in the ordinary course of mining, and so the authorities cited which hold that in the ordinary course of mining, coal or minerals may be taken up the line of the adjoining land, that a party is not bound to have a barrier to prevent the water from flowing into the mine of an adjoining owner. But this was not done in the ordinary course of mining, and I have yet to learn of a decision holding that a person may lawfully dig a ditch upon the surface of his land so as to gather the surface water thereon and discharge it upon the land of his adjoining neighbor, or may drive a gangway from his mine to the line of an adjoining owner for the purpose of discharging the waters collecting in his mine into that of the adjoining owner. The authorities cited by defendant’s counsel sustain no such doctrine. In one of them, P. & R. C. & I. Co. v. Taylor (Legal Chronicle, 36), is cited with approval a clause in the opinion in the case of the Mammoth Vein Consolidation Company’s Appeal (4 P. F. Smith [54 Pa. $£.] 183, 189), as follows : “ Had it been manifest that the consequence of defendant’s operations would have the effect of letting water in large quantities into plaintiff’s mine, it would assuredly have been proper to have enjoined them even although they were operating exactly within the terms of the lease.” In that case a motion for a preliminary injunction was denied, but the court say that if it appears on the trial that the danger exists it can be guarded against by the judgment. Another case is also cited. Mountain Coal and Iron Company (Legal Intelligence, March 29, 187 ), which holds as follows: “ Where the miner in his upper mine in carrying forward his gangway strikes into a breast which has been wrongfully worked by a trespasser up the dip of his coal vein, he is not justified in emptying the water flowing down the drain or gutter of his gangway into the opening thus struck, if by reasonable means he ca.n carry the water into his own dump ; ” that it was the duty of the upper owner to carry off the water even though a trespass had been committed upon him. The court say: “ To adopt the principle that the upper owner is liable for no act done within his own mine and no neglect because it falls within his own property right would lead to results. disastrous to mining and cannot be tolerated.”

It is hardly necessary, however, to cite or discuss authorities. Suffice it to say none go to the extent necessary to sustain defendant’s contention. But it is urged the use of the gangway as a drain is a great convenience and benefit to defendant and is no injury to plaintiff. This is hardly an excuse for an unlawful interference with another’s rights. But if no serious damage has thus far been occasioned, such damage may result at any time. If the pump in the Marvin shaft should become disabled, or the working thereof should cease because of a strike, a contingency not altogether improbable in these days, or from any other cause, the water that is being poured down from the defendant’s other collieries into the Marvin shaft would soon flood that colliery and for a time utterly prevent the mining of coal therefrom. ' Defendant has no right to impose this burden and this risk upon plaintiff and she has a right to ask that it be restrained from so doing.

3d. The right claimed by defendant to deposit all of the culm or waste coal arising from the coal mined through the Marvin shaft from defendant’s adjoining land upon the surface of plaintiff’s land as well as that coming from the coal mined from her own land, seems to me an extraordinary one. If it be true, plaintiff in executing the contract virtually surrendered all right to the surface of her land and cannot safely sell one foot of it. It appears that defendant has from 800 to 1000 acres of land adjoining plaintiff’s land, the coal from which can be mined to advantage through the Marvin shaft. The coal from the farm ” which contains 500 acres can be mined in no other way unless a new shaft is sunk, and it is the evident purpose of defendant to mine it all through the Marvin shaft. A very moderate estimate of the coal from defendant’s adjoining properties already and hereafter to be mined through the Marvin shaft is 20,000,000 tons, add to this say 3,000,000 tons for the coal from plaintiff’s land the whole amounts to 23,000,000 tons. There has already been mined 1,100,000 tons. The culm from this covers seven acres and seventeen perches of land to a depth of between forty and fifty feet. If the balance yet to be mined" yields culm in anything like the same proportions, it would cover the whole surface of plaintiff’s land not used by defendant for other purposes to a depth of, at least seventy feet. If then, defendant has the right claimed it has the right to appropriate the whole surface. The language of the contract must be strong and unequivocal indeed, which will authorize a court to arrive at a result so disastrous, and yet the claim is based simply upon a grant of the right to use so much of the surface as shall be necessary for the deposit of the culm from the coal mined from plaintiff’s land. The provision of the contract authorizing the use of the rights and privileges granted for purposes connected with the mining of the coal from its own land, does not purport to extend the right granted so as to make it cover land not necessary for the purposes specified. Now there is a marked distinction between the use of the surface for the deposit of culm and the use for other purposes connected with mining. For the latter the use is but temporary and the portion taken when not being used for purposes connected with mining plaintiff’s coal may be used for mining that of defendants’ without imposing an additional burden, and the portion required to be taken must be a matter of judgment. But the necessity to take land for the deposit of culm only arises as the culm is produced, and the use of the land taken for it is in effect a permanent appropriation as the land is rendered valueless for building or other purposes. It can scarcely be claimed that defendant has the right at the outset to mark out and appropriate all the land it may deem necessary to use even for the deposit of cidm from plaintiff’s coal. Until needed plaintiff has the right to use it. If any culm arising from any other coal is deposited on plaintiff’s land, then so much space which might have been used for the deposit contemplated by the contract is otherwise appropriated, and so much additional land must be taken which would not have been required had the land so appropriated been used for the deposit of the culm from plaintiff’s coal; certainly, if I am correct in my first proposition, if defendant is not authorized to mine its own coal through the Marvin shaft until it has performed its contract as to mining plaintiff’s coal, when that is done the quantity of land required for the deposit of the culm therefrom will be definitely determined and no more can be taken. Nor is it necessary to enable defendant to use and enjoy the rights and privileges granted, to impose this heavy burden upon plaintiff’s land. The Marvin shaft is located near the Lackawanna river, on the opposite side of which lies the defendant’s “farm.” By building a bridge across the river, access can be had to the farm and a convenient dumping place for its own culm can be reached.

It seems to me, then, as there is no express grant to defendant in the contract of a right to deposit culm arising from the coal mined in its own land, upon the surface of plaintiff’s land, as no such deposit can be made without appropriating land not necessary for the deposit of culm from coal mined under the contract, and as, so far as this question is concerned, the right to use only so much of the surface as is necessary for that purpose is granted, defendant exceeded the rights granted and was guilty of a trespass in depositing the culm from its own properties upon plaintiff’s land, and to the extent of the injury thus inflicted, it is liable, and plaintiff is entitled to judgment restraining any such further, unlawful use of her land, it appearing that such use is contemplated and the right thereto asserted.

It does not appear in the case what is the usual or reasonable height to which deposits of culm are, or should be carried. It may, peihaps, be inferred from the testimony that more culm may yet be deposited on the land already appropriated for that purpose. It does appear that the surface so covered is rendered useless, that it was worth $1,500 per acre, that a little over seven acres have been covered with the deposit, that about six elevenths of such deposit was made without right, and perhaps it would not have been unreasonable to have allowed to plaintiff by way of damages the full value of six elevenths of the land taken; I have concluded, however, to allow $3,000, the value of two acres, and, if I am right in my views as to the construetion of the contract, this cannot be considered an excessive allowance.

George G. Genet, attorney and of counsel .for plaintiff as appellant and respondent, among other things, argued:—

The complaints should not have been dismissed as to the first cause of action.

The parol evidence that both before the agreement was executed and after it was executed but before it was delivered, defendant agreed to work industriously and take out the greatest quantity of coal, and that plaintiff should profit by it as much as possible, was admissible. The agreement was executed solely in consideration of the promises and delivered solely on the renewal of the promises made at the time it was delivered. Morgan v. Griffith, 6 L. R. Ex. 70; Lindley v. Lancey, 17 C. B. N. S., 578; Harris v. Rickett, 4 H. & N ; Jarvis v. Berridge, L. R. 8. Ch., 351; Erskine v. Aldene, L. R. 8 Ch. App., 764, 766 ; Hope v. Balm, 58 N. Y. 381; Lewis v. Seabury, 74 Ib. 413;.Silliman v. Tuttle, 45 Barb. 171; Lythe v. Bass, 7 Colden Tenn. 303; Wallis v. Little, 11 C. B., N. S., 369; Winn v. Chamberlain, 32 Vt. 318 ; Cowen & Hill’s Notes, Note, 295; Hope v. Balm, 58 N. Y. 380; Lewis v. Seabury, 74 Ib. 413 ; Wilson v. Deen, 74 Ib. 531; Snowden v. Guion, 101 Ib. 462; Chapin v. Dobson, 78 Ib. 74; Eighmie v. Taylor, 98 Ib. 294; Remington v. Palmer, 62 Ib. 32; Stockwell v. Holmes, 33 Ib. 53; Van Buskirk v. Roberts, 31 Ib. 661; Murdock v. Gilchrist, 52 Ib. 247; Murray v. Smith, 1 Duer. 427 ; 12 Wend. 446 ; 1 John Cas. 22; 4 Duer, 292; 1 Hill, 383 ; 49 Barb, 264. A contract is to be interpreted in the sense in which plaintiff understood it and in the light of surrounding circumstances. White v. Hoyt, 73 N. Y. 511. Most favorable to the promisee. Hoffman v. Etna Ins. Co., 32 N. Y. 405. In the sense in which the promisor knew the promisee understood it. Johnson v. Hatborne, 2 Abb. Dec. 469; Barlow v. Scott, 24 N. Y. 40; Mowatt v. L’Lonesborough, 3 E. & B. 307; Potter v. Ontario Ins. Co., 5 Hill 147. The nature of all mining contracts is such as to make time essential. Pendergast v. Teuton, 1 Y. & C. C. O. 110, 111; Clegg v. Edmonson, 26 L. J. C. 681. Agreement for lease, no certain term agreed on only tonnage, the tenant is bound to begin working immediately, and to proceed without intermission. Sharp v. Wright, 28 Beavan 150. Where a lessee fraudulently delayed digging a certain quantity of coal to avoid the beginning of payment of rent. Green v. Sparrow, cited in 3 Swanston, 407; Wood v. Copper Mines Co., 7 C. B. 906; 18 L. J., N. S., C. P. 293. The intention was sufficiently apparent although there was no express covenant to supply the coal, and amounted to a covenant. Bainbridge on Mines, 272; Watson v. O’Hara, 6 Watts Pa. 362; Lyon v. Miller, 24 Pa. R. 342.

Where a contract contains stipulations in favor of one party and not of the other, as for instance an option, or is in any wise unilateral, the court if it does not consider time as of the essence of the contract will look at any delay in the party in whose favor the contract is binding with especial strictness. Brook v. Gunod, 27 L. J. C., 226; Booth v. Cleveland Mills, 74 N. Y. 23-25.

This promise was binding upon defendants as a collateral agreement in relation to tons of coal not embraced in the minimum and also as a promis'e. in relation to future action depending on contingencies.. See cases above cited; Also Bute V. Thompson, 13 M. & W., 487; Rex v. Budworth, 8 East 387; Jervis v. Thompson, 1 H. & N., 195; 26 L. J. Ex. 41.

The defendants below cited Schulz v. Bradley, 57 N. Y, 646. A valid executory contract for the sale and delivery of a specific quantity of merchandise, cannot be altered by a parol agreement, increasing the quantity to be delivered, and so engraft it on the original contract, as to escape or evade the rule prescribed by the statute of frauds. This does not meet the present case, because the plaintiff in consideration of the promises, covenants, etc., contained in the agreement leases to defendants all the coal contained in upon and under, etc., supposed to be contained in certain veins, but in any event to include all the coal that "can be economically mined, etc., they also are given the right to sink shafts, build railroads, etc., to mine the coal under the agreement and are to pay 12’ cents a ton, etc., limiting their express liability to the payment of $1,250 a year, and interest on $1,250 more after two years as a fixed or ground rent, the rest to depend on contingency of the coal being found.

The difference between the cases of Wheatly v. Westminster Coal Co., L. R. 9 Eq. 538; Jegon v. Vivian, L. R., 6 Ch. App. 742, 757, and McIntyre v. McIntyre Coal Co., 14 N. Y., 264, and the suit at bar is obvious. Those leases were for years and the coal if not mined would revert in time to the owner who would also have the price of it. In each case the court was particular to base its judgment on the proposition that it would work no injustice to the plaintiff, and the extent of the agreement was the minimum rent and there was nothing before the court but the naked contract. In the case on trial there is no reversion. The agreement is not for years, but is an irrevocable license embracing all the coal upon the property that can be economically mined. It cannot be confined to the minimum rent, which would not embrace all the coal on the property. As to the coal beyond the minimum quantity each day’s delay in mining it is a loss to plaintiffs and no benefit to defendants. The agreement embraces not only the minimum quantity, but coal beyond the minimum quantity—namely, all the coal on the property, found to be three million tons. In respect to this there is an implied promise to mine it and pay for it with reasonable diligence, which involves the further duty of mining the minimum quantity, or at least working the property with reasonable diligence. Again if the minimum quantity stated is the extent of defendant’s obligation then the parol evidence as to the coal to be mined beyond the minimum was proper to be received as evidence relating to an independent collateral promise not comprised in the terms of the contract and certainly not contradicting it.

I. The coal in the different veins therefore did not vest in defendant in fee, or in any other way than what is known in law as a mining privilege or license. Stephens v. Santee, 49 N. Y., 37; Joice vc. Andrews, 4 Seld. 291; McDonald v. Hewitt, 15 John. 349; Evans, V. Harris and cases, 19 Barb., 416 ; Andrews v. Durant 11 N. Y., 35; Jackson, v. Hunt, 11 Wend. 137; Merritt v. Johnson, 7 John. 473 ; Gregory v. Stryker, 2 Den. 628; Hurd v. Cook, 75 N. Y. 459; Muchlow v. Bayland, Taunt. 318.

II. At the close of the case, defendant’s counsel cited several cases which they claimed sustained some of their extreme propositions of law. Jigon v. Vivian, L. R., 8 Ch. App. 742; Lewis v. Fothergill, 5 Ib. 110; Smith v. Kenrich, 7 C. B. 573. An examination of the cases will show they do not. The first case above cited shows, however, that this lease does not give them any of the rights they , claim. (The point also contained an elaborate discussion on the effect of the provisions of the lease and of the evidence.—Reptrs.)

Mathews & Smith, attorneys, and Mathew Hale and Frank E. Smith of counsel for defendant, as appellant and respondent, among other things, argued:—

I. The parol evidence offered by plaintiff was properly excluded. Wilson v. Dean, 74 N. Y. 531; Eighmie v. Taylor, 98 Ib. 288; Marsh v. McNair, 99 Ib. 175; Corse v. Peck, 102 Ib. 513 ; Long v. Millerton Iron Co., 101 Ib. 638. There are two classes of cases which are excepted from the operation of the rule : First, when it was mutually intended that the writing should contain a part only of the agreement, and such purpose is apparent on the face of the writing; and second, when the parties have, at the same time and upon the same consideration, negotiated by parol another agreement, which is collateral and on a subject distinct from that to which the written contract relates. Eighmie v. Taylor, supra; Naumberg v. Young, 44 N. J. Law, 331.

It cannot be claimed that the writing here in question falls within either of these exceptions. It has also been urged as a ground for admitting the parol testimony which was offered by the plaintiff that the promises sought to be proven were made after the writing had been signed and sealed, but before it was delivered, and it is claimed that promises so made are excepted from the operation of the general rule. One of the arguments to support this claim is that such a promise cannot, in the nature of things, merge in the writing, since at the time the writing was prepared and executed the promise had not been made. The effect of this claim, if sustained, would be to allow a condition not contained in the contract, to be annexed by parol evidence to the delivery of it, when such delivery was direct from one party to the other. This cannot be done. Worrall v. Munn, 5 N. Y. 229; People v. Bostwic-k, 32 Ib. 445; Cocks v. Barker, 49 Ib. 107; Van Bokkelen v. Taylor, 62 Ib. 105; Wilson v. Dean, 74 Ib. 531, 537; Ridgway v. Bowman. 7 Cush. 268; Bast v. Bank, 101 U. S. 93. The only other ground upon which it is claimed that the parol evidence should have been received is that the writing in question is a Pennsylvania contract; that the common law rule excluding parol evidence has been much relaxed in that state, and that the rules of evidence in force in that state should be applied in this action. There is no foundation for either one of the propositions involved in this claim. (1.) The rule of evidence is substantially the same in Pennsylvania that it is here. . Martin v. Berens, 67 Penn. 459; Bast v. Bank, 101 U. S. 93. (2.) The question, relating as it does to the admissibility of evidence, depends solely on the law of the forum—in this case the state of New York. Story, Conflict of Laws, § 634 (a), § 635 (e), Bain v. Whithaven Co., 3 H. of L., cases 1, 19. Even if the rule were otherwise, the plaintiff could only have availed herself of it by proving the law of Pennsylvania as a fact. This she did not do. The law of that state, therefore, must be presumed to be the same as that of the state of New York. Cheney v. Arnold, 15 N. Y. 345, 353; Monroe v. Douglas, 5 Ib. 448; Savage v. O’Neill, 44 Ib. 298; Rice v. Harbison, 63 Ib. 493; Chapin v. Dobson, 78 Ib. 74, 79.

II. The first cause of action was properly dismissed. After the parol evidence given by Mr. Genet of conversations had with the president and general manager of defendant had been stricken out, there was absolutely nothing left to sustain, the allegations of the first count of the complaint. All the testimony which plaintiff desired to offer .in support of her case was received and is contained in the record now before the court. So that even if a large part of that testimony were erroneously stricken out, it is nevertheless apparent that, had the motion to strike out been denied, the first cause of action must have been dismissed. (1.) The contract set out in the first count of the complaint is void under the statute of frauds, as a contract which by its terms is not to be performed within one year. It is not claimed that there was any written memorandum of this alleged contract. Performance, upon the allegations of the complaint, could not be completed in less than forty years. Such a contract is within the statute. Boydell v. Drummond, 11 East 142; Day v. N. Y. C. R. R., 31 Barb. 548; McPherson v. Cox, 96 U. S. 404, 416. The contract sued upon being within the statute is absolutely void and cannot be enforced, directly or indirectly. 2 R. S. 135, § 2, sub. 1. Dung v. Parker, 52 N. Y. 494. Nor does performance by the plaintiff take the case out of the statute or enable her to maintain any action on the contract to recover damages for its breach. Broadwell v. Getman, 2 Den. 87; Kellogg v. Clark, 23 Hun 393; Marcy v. Marcy, 9 Allen 8; Frary v. Sterling, 99 Mass. 461; Baldwin v. Palmer, 10 N. Y. 232 ; Van Alstyne v. Wemple, 5 Cow. 164; Harsha v. Reid, 45 N. Y. 415; Cagger v. Lansing, 43 Ib. 550; Levy v. Brush, 45 Ib. 589; Emery v. Smith, 46 N. H. 151; Peirce v. Paine, 28 Vt. 34; Bartlett v. Wheeler, 44 Barb. 162. (2.) The parol promises, sworn to by the plaintiff’s witness, were not, if made, the promises of defendant. It is well settled that the president or general manager of a corporation has no power by virtue of his office to make contracts for the corporation, except such as occur in the ordinary every-day business of the company. Pierce on Railroads, p. 34; Hoyt v. Thompson, 5 N. Y. 320; Risley v. I. B. & W. R. R. Co., 1 Hun 202; Olcott v. Tioga R. R. Co., 27 N. Y. 546; Farmers’ Bank v. McKee, 2 Penn. 318 ; Hendrickson v. N. Y. & A. R. R. Co., 10 Weekly Dig. 33. (3.) No covenant can be implied into the lease to work the mine to its utmost capacity, or even to work it industriously. The written contract contains an express covenant as to the quantity of coal to be mined in each year. There is therefore no room for any implied covenant relating to the same matter; expressum facit cessare taciturn. The written instrument also provides for the payment of a dead rent—i. e., rent to be paid whether the mine is worked or not. It has been decided that in such a case, the lessee, paying the dead rent, is under no obligation to work the mine at all. Wheatley v. Westminster Brymbo Coal Co., L. R. 9 Eq. Ca. 538, 552; McIntyre v. McIntyre Coal Co. 105 N. Y. 264, 272; MacSwinney on Mines, pp. 228, 229; Newell v. Wheeler, 36 N. Y. 244.

I. Defendant is entitled to use the Marvin shaft” and its appurtenances for the purpose of mining coal from the adjoining lands. The right of working adjoining collieries and carrying coal therefrom to the surface through the shaft sunk in plaintiff’s land, is one which defendant can only claim by express grant. Such method of working the adjoining colliery is termed, in the English books, working by “outstroke,” and the grantee or lessee of a mine, independent of the surface, but with the right of working, cannot use the granted or demised mine for the purpose of carrying coal from his other collieries to the surface unless such user is warranted by the terms of his grant. MacSwinney on Mines, pp. 238, 239.

The importance to the mine operator of this method of working the mine is obvious, as it enables him to avoid the great expense of sinking separate shafts.

It is, therefore, carefully stipulated for in the instrument now under consideration (here followed a criticism on the referee’s opinion and an exhaustive analysis of the agreement, and a citation as bearing on its construction of the following authorities:—Phenix Insurance Co. v Continental Insurance Co., 87 N. Y. 400-407 ; Greffing v. First Presbyterian Society of Syracuse, 56 Barb 114-118).

II. Defendant is entitled at any time to connect the workings in the Genet property with its .own workings in adjacent lands. The acts which defendant has done in. relation to the Genet property, and which, by that clause of the judgment now under consideration it is commanded to undo, it justifies upon two grounds: First—That the contract between the parties expressly authorizes them. Second—That the right to do them, in the absence of express authority, is implied from the estate in the coal and other rights which are expressly granted. (1.) Express authority is given defendant to extend its workings to adjacent lands. (2.) The right to connect the workings in the Genet property with the workings in defendant’s other collieries is implied from the nature of the estate in the coal and other rights granted to defendant, (a.) Defendant is seized in fee of each stratum of coal as a separate parcel of land. It is settled law that coal and other minerals may be separated in title so as to constitute a parcel of land separate and distinct from the surface. MacSwinney on Mines, 27; Bainbridge on Mines (4th ed.) 28; Caldwell v. Fulton, 31 Penn. St. 475; Caldwell v. Copeland, 37 R). 427; Armstrong v. Caldwell, 53 Ib. 284, 287. It is also settled law, especially in Pennsylvania, that a grant of the right to take all the coal in a piece of land, without limit as to time, is a grant of an estate in fee in the coal' as a separate parcel of land. Caldwell v. Fulton, supra ; Caldwell v. Copeland, supra; Armstrong v. Caldwell, supra ; Kier v. Peterson, 41 Penn. St. 357; Scranton v. Phillips, 94 Ib. 15; Sanderson v. City of Scranton, 105 Ib. 469 ; D., L. & W. R. R. Co. v. Sanderson, 109 Ib 583; Eley’s Estate, 2 Kulp 277; Fairchild v. Fairchild, 7 Cent. Rep. 873 ; Chester Emery Co. v. Lucas, 112 Mass. 424 ; Massot v. Moses, 3 S. C. (N. S.) 168.

That the instrument of conveyance uses the technical terms of a lease, makes no difference. The fact that the deed contains provisions under which it is possible that a part of the coal may revert to the grantors does not take away from the estate granted the character of an estate in fee, although such estate may perhaps be a base fee rather than a fee simple. 1 Wash-bum Real Property, 52, §§ 35, 36 ; 2 Bl. Comm. 109. (b.) Defendant may make -what excavations it will within the limits of the coal—that being its own land— and may use such excavations as a thoroughfare to and from its other collieries. Duke of Hamilton v. Graham, L. R. 2 Scotch App. 166; Proud v. Bates, 34 L. J. [N. S.), Ch. 406. (c.) Assuming that the deed of March 28, 1864, is a lease of the coal, and defendant a technical lessee, it still has the right of connecting the workings in the demised property with its adjoining collieries. It is settled law that the lessee of a coal mine has the right, in the absence of express covenant to the contrary, to work the demised mine from an adjacent colliery. This method of working is termed in the English books working by “instroke.” MacSwinney on Mines, p. 231. Working by instroke is prima facie the right of every mining lessee, even when the lease contains an express covenant to work in a proper and workmanlike manner. MacSwinney on Mines, 231; Whalley v. Ramage, 10 Week. Rep. 315; S. G., 8 Morrison’s Min. Rep. 52; Lewis v. Fothergill, L. R., 5 Ch. App. 103 ; Jegon v. Vivian, L. R., 6 Ch. App. 742; S. C., 8 Morrison’s Min. Rep. 628. (d.) Defendant is under no obligation to plaintiff to prevent the water which naturally collects in the workings which surround the Genet property from flowing by force of gravity through the working and to the “ Marvin ” shaft. Bainbridge on Mines, 4th ed. p. 294 ; MacSwinney on Mines, p. 404; Smith v. Kenrick, 7 C. B. 515; Baird v. Williamson, 15 C. B. (N. S.) 375, 388, 389; The Scots Mines Co. v. Leadhills Mines Co., 34 Law Times (Reports), p. 34 (Oct. 15, 1859); Wilson v.. Waddell, L. R., 2 App. Ca., 95; Crompton v. Lea, L. R., 19 Eq. Ca., 115, 123; Penna. Coal Co. v. Sanderson, 113 Penn., 126, 146 ; Jones v. Robertson, 116 Ill., 543, 552. The water is a sort of “common enemy” against which each owner must protect himself, and the only duty which the miner on the upper level owes to his neighbor on the lower, is to carry on his operations with ordinary care and skill. (<3.) No water is brought to the Marvin shaft by any artificial means employed or set in motion by defendant, except that defendant by extending its workings has removed the natural barriers, (f.) No tunnels or other underground channels have been constructed by defendant connecting the Genet property with other lands except such as have been constructed in the ordinary and proper course of mining, (g.) Defendant has the right to use the workings at the “ Marvin shaft” for the purpose of pumping and removing from the mine all water which collects in the workings around that shaft, including all water which runs into those workings by gravitation from the workings in adjoining lands.

III. Defendant is entitled to use the surface of plaintiff’s land for the deposit of all the culm produced by its mining operations carried on at and through the “Marvin Shaft,” whether such culm be the product of the Genet property or not. This right must of course depend on the terms of the contract between the parties. It is expressly given by the contract. Even if it had not been expressly granted, it would be implied in the grant which confessedly plaintiff has made to defendant, that of maintaining the “Marvin Shaft” and breaker as a working colliery, with reference to all the adjacent lands of defendant. Unless this defendant has the right to deposit on plaintiff’s land the refuse of the colliery, the right clearly and expressly granted of maintaining that colliery after the coal in plaintiff’s land is exhausted, is nullified. The rule, therefore, fairly applies, that plaintiff having expressly granted the one, has by implication granted the other. Broom’s Legal Maxims, 6th English ed., 445; MacSwinney on Mines, 274; Bushnell v. Proprietors, etc., 31 Conn. 150; Charles Eiver Bridge v. Warren Bridge, 11 Pet., 420, 630.

IY. Plaintiff has not made out a case which entitles her to equitable relief by way of injunction. (1.) The court should not interfere by mandatory injunction to compel defendant to close up the headings and gangways leading from the “Marvin Shaft ” to other lands, (a.) No proof has been offered to show that the past existence of these headings and gangways has caused, or that their existence in the future will cause, any damage irreparable or otherwise to the plaintiff.

. Possible future damage does not authorize an injunction. Morgan v. City of Binghamton, 102 N. Y. 500 ; People v. Canal Board, 55 Ib., 390, 397. The very foundation, therefore, of relief by injunction—actual and irreparable injury to the plaintiff—is wholly wanting in the present case. T. & B. R. R. Co. v. B. H. T. & W. Ry. Co., 86 N. Y. 107, 126. (5.) Plaintiff is estopped from denying the right of defendant to make and maintain the tunnel connecting the “ Leggett’s Creek” and “Marvin” shafts by reason of her laches, acquiescence and delay. Bassett v. Salisbury Mfg. Co., 47 N. H. 426, 441; Gt. W. R. R. Co. v. O. W. & W. R. R. Co., 3 D, G. M. & G. 341; Bermingham Canal Co. v. Lloyd, 18 Ves. Jr. 515; S. G., 8 Mining Rep. 166; Parrott v. Palmer, 3 M. & K. 632, 640; Jacox v. Clark, Walker (Mich.) 249; Fuller v. Melrose, 1 Allen 166; Pomeroy Eq. Jur., § 1359. (d.) The injunction compelling defendant to close the headings and gangways connecting the “Marvin Shaft” with the other lands of defendant is of no benefit whatever to plaintiff, while it imposes upon defendant a heavy burden of expense and inconvenience.

An injunction ought not to be granted when it will operate to inflict serious loss on one party while the injury resulting to the other from the acts complained of, is comparatively trifling. Bassett v. Salisbury Co. 47 N. H. 426, 438; Harkinson’s Appeal, 78 Penn. 196; Bichard’s Appeal, 57 Ib. 105; Wood v. Sutcliff, 2 Sim. (N. S.) 163, 168; Thorn v. Sweeney, 12 Nev. 251. 2. Defendant should not be enjoined from mining coal from other lands through the “Marvin Shaft.” (a) The continuance of such mining will do no damage to the plaintiff. The cessation of it will be of no benefit to her while it will cause great damage to defendant. The injunction which,was granted in this case was apparently awarded on the theory that if defendant were prevented from mining its own coal “upon which it pays nothing,” it would then proceed to mine more rapidly the coal on which it pays royalty to plaintiff. And the process of this court has been placed in the hands of plaintiff to be used as a club to compel defendant to do what the Beferee was compelled to hold it had, “in precise and emphatic phrase,” relieved itself from doing. The preventive process of equity will not be granted for such a purpose. Wood v. Sutcliff, 2 Sim. (N. S.) 163, 169; Bassett v. Salisbury Co., 47 N. H. 426, 441; Edwards v. Allouez Min. Co. 37 Mich. 46. (b) Plaintiff knew for years before this suit was brought and at the time the “Marvin Shaft” and breaker, with its appurtenances were being constructed, that they constituted a colliery capable of handling a much larger quantity of coal than her land could supply, and allowed defendant to proceed without objection: testimony of Broderick, taken in 1878, fols. 469, 470, 471. A court of equity ought not now to interfere, but should leave her to such remedy as the law affords.

V. The award of damages contained in the judgment is erroneous. These damages were awarded on the theory that a portion of plaintiff’s land has been illegally covered with culm, and defendant is’ required to pay the full value of two acres of land; but the judgment does not provide that on receiving such payment plaintiff shall convey the land so paid for. It is evident that the referee, in reaching this conclusion, and also in receiving, against defendant’s objection, the testimony as to the value of the surface land, acted upon an erroneous theory as to the measure of damages. Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98; Silsby Mfg. Co. v. State, 104 N. Y. 562, 569.

By the Court.—Sedgwick Ch. J.

Excepting in a single respect, the findings of fact and the opinion of the referee have convinced me that the judgment ordered by him should stand.

I think, however, that the enjoining part of the judgment should be changed by inserting in the second subdivision of the judgment immediately before the words “ until all the coal which it is authorized” the following words: “ excepting during such times as,, defendant shall use said shaft, breaker, machinery or other structures, for the mining, preparing and forwarding coal in and from plaintiff’s said land to the amount or quantity such shaft, breaker, machinery and other structures, are or shall be adapted to mine, prepare and forward, or”

As thus modified the judgment is affirmed without costs to either party.

Notice of settlement of the order to be entered is to be given.

Freedman, J., concurred.

Ingraham, J., (concurring as to the first cause of action, and dissenting as to the second).

I concur with my associates that on the appeal of the plaintiff the judgment should be affirmed for the reasons stated in the opinion of the referee.

I am however unable to agree to the conclusion arrived at on the appeal of the defendant.

The agreement which it is necessary to construe is dated the 28th of March, 1864, and is a lease from the plaintiff to the defendant of all coal contained in, on, or under a certain piece of land in the county of Luzerne state of Pennsylvania; said coal to include all the coal that can be dug from the premises described, together with the right to enter upon and into the said lands and to dig, mine, and remove from the described premises the said coal through or out of any shaft, etc., that the defendant may dig upon the premises ; and the said agreement further leases to the' defendant lands for piling coal or culm and all other appurtenances they may require for mining, receiving, removing, cleaning, screening, dumping, storing, preparing and forwarding coal to be mined under this agreement. The agreement also provided that the said party of the second part should not be held accountable under any circumstances for any damage that may be done to the surface of said land by the mining, preparing and removing of said coal. Said agreement then provided that the said parties of the second part should pay for twenty thousand tons in each and every year whether the same shall be taken out in such year or not, and the party of the second part agrees to pay for the coal, mined and taken out in pursuance of this agreement at the rate of twelve and one half cents for every ton of two thousand two hundred and forty pounds. And the said agreement also contained the following provision: “And it is further agreed, and understood that the parties of the second part, their executors and assigns may use and occupy the rights and privileges hereby granted, and the openings, buildings, fixtures and appurtenances made and constructed by them for the mining, preparing and forwarding coal under this agreement for the mining, preparing, and forwarding- coal from any adjoining or contiguous lands until all the lands that they desire to take coal from and that can be mined and taken out through said openings, shafts and slopes shall be exhausted.”

The referee, found that from the year 1876 to the date of his report the defendant had mined through shafts upon the plaintiff’s property the aggregate amount of 1,106,385^ tons of coal of which 497,614„0 tons were mined from plaintiff’s land and the balance mined from other lands of the defendant contiguous to the plaintiff’s land. That all the culm or waste coal from the coal mined through the shaft on plaintiff’s property known as the Marvin - shaft had been deposited on plaintiff’s land, and the land thus taken by the defendant for that purpose is upwards of seven acres upon which land the culm is now piled up to the average height of from forty to fifty feet.

The contract in question is a peculiar one and some of its provisions are certainly very onerous upon the plaintiff, but it is the contract made by the parties that has to be construed. The court has no power to make a new contract to relieve the plaintiff from the provisions of the contract made.

The legal effect of the agreement is to convey to the defendant the coal in the plaintiff’s property capable of being profitably mined (Sanderson v. City of Scranton, 105 Penn. St. 469), with the right to the use of the property for the purpose of mining and preparing such coal for market together with the necessary land for piling the coal or culm to be mined under the agreement. These are rights and privileges that are expressly given to the defendant and are as much the property of the defendant as the coal which it has purchased and without which the coal itself would be of little or no value; and when the plaintiff gave to the defendant the rights and privileges granted by the contract for the mining, preparing and forwarding coal on plaintiff’s land for the mining, preparing and forwarding of coal from the adjoining or contiguous lands, until all of the lands that they desire to dig coal from and that can be mined and taken out through said openings, shafts and slopes shall be exhausted, they gave to the defendant the same right to use the lands of the plaintiff for the mining and preparation for market of its own coal as the defendant had to use the plaintiff’s land for the mining of coal that was upon plaintiff’s land. This right to use the plaintiff’s land for the mining of coal on adjoining or contiguous lands was not limited by the agreement to any particular time. It was to continue until the coal on the contiguous lands was exhausted. It did not depend upon the amount of coal taken from the plaintiff’s land nor do I see how by any reasonable interpretation of this contract it can be held that this use of the plaintiff’s lands was to be subordinated to the mining of the coal on the plaintiff’s land.

The defendant’s liability was confined to the payment for twenty thousand tons a year, and so long as it paid for twenty thousand tons a year, it complied with its part of the agreement and was under the agreement entitled to use the rights and privileges granted and the openings, buildings, fixtures and appurtenances made and constructed for the mining, preparing and forwarding coal on plaintiff’s land for the mining, preparing and forwarding coal from the adjoining or contiguous lands. And to insert into the agreement a provision that this right was not to be exercised, until all the coal on plaintiff’s property was mined, would be the insertion of an entirely new clause in the contract and the result would ¡be that the court would make a new contract; not construe one already made.

The judgment also restrains the defendant from depositing culm from coal from the lands other than the lands of the plaintiff upon the surface of the plaintiff’s lands. By the agreement the plaintiff gave to the defendant “ the use of all the lands they may require for the purpose.....together with the lands for piling coal or culm and all other appurtenances they may require for mining, receiving, removing, cleaning, screening, dumping, storing, preparing and forwarding the coal to be mined under this agreement,” and the same privilege was granted to the defendant for mining, preparing and forwarding coal from any adjoining or contiguous lands. The right to deposit the culm on the plaintiff’s land was a right necessary for the mining of the coal, and as the referee found, necessary for the successful working of the colliery, and when the same right is given for the “ mining, preparing and forwarding coal on adjoining or contiguous lands,” the right to deposit the culm necessary for the proper mining and preparing for market of the defendant’s coal was clearly granted.

Nor do I think upon the facts found by the referee that the plaintiff is entitled to an injunction restraining the defendant from allowing the water to run from the mines upon the adjoining property where the gangways through which the water runs were actually opened and used for the purpose of mining the coal on the adjoining property through the plaintiff’s land.

There is no allegation that the defendant is insolvent or unable to respond for any damages done to plaintiff’s property by any of the acts complained of which were not clearly allowed by the contract, and on the whole case I do not think the plaintiff is entitled to equitable relief.

I think therefore that the judgment so far as it is appealed from by the defendant should be reversed and a new trial ordered with costs to abide the event.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J.

license: Public Domain

text:
    THOMAS J. HYATT, as Executor, etc., v. JOAQUIN M. AGUERO.

      Disci'alionarij power of sale—when cannot be executed by single executor.

    A will contained the following clause: “I hereby authorize my said executors to sell all or any part of my real or personal estate at any time in their joint discretion—that is to say, one is not authorized to sell or exchange without the consent and co-operation of the other—and to give valid deed to the purchaser.” One of said executors renounced his right to letters testamentary.

      Ilehl, that the remaining executor, who qualified, could not execute the above power, solely, notwithstanding the provisions of § 2642, Code Civ. Proc.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 20, 1888.
    Submission of case, under § 1279, of the Code of Civil Procedure.
    The facts appear in the opinion.

      Peck & Mason, for plaintiff :—
    The only question involved is, did the plaintiff have authority to convey the said property under the aforesaid power of sale, H. L. Horton not joining in said conveyance and having renounced his right to join in the administration of the said estate. The law on this subject has remained substantially the same since the original revision of the statutes in 1828-29, and is contained in § 55, Title 4, chap. 6, part 2, Revised Statutes (original edition).
    Taylor v. Morris, 1 N. Y. 349; Humbert v. Wurster, 22 Hun 405; Leggett v. Hunter, 19 N. Y. 445. This does not seem to have been altered or amended in any way until 1883, when an addition was made by § 2642 of the Code of Civil Procedure; The courts have uniformly interpreted this section of the Revised Statute so as to give effect to discretionary powers of sale vested in executors or trustees jointly in case any of them shall die or fail to qualify by allowing the acting executors or trustees to execute the trust. Sharp v. Pratt, 15 Wend. 610; Sherwood v. Stevens, 4 Den. 399 ; Howe v. Raymond, 3 Hun 44. “The effect of a disclaimer where there is a co-trustee seems to be to vest the whole legal estate in the other trustee, and he may execute the office, even when connected with a power, without the concurrence of the co-trustee.” 3 Redfield’s Lem of Wills, 611.

      Bailey & Sidlivan, for defendant:—
    The condition attached to the power is a valid one. Kissam v. Dierkes, 49 N. Y. 602. The testatrix by her will, in language capable of but one construction de-. dares that neither of said persons can exercise the power of sale without the consent and co-óperation of the other. The Revised Statutes, § 112, chap. 1, part 2 of Title 2, 7th ed., vol. 3, p. 2192, declares: “Where a power is vested in several persons, all must unite in its execution; but if previous to such execution one or more of such persons shall die, the power may be executed by the survivor or survivors.” In this case both the persons in whom the power of sale is vested are living, and a deed executed by one of them only is contrary to the statute. The distinction between trustees and executors in joining in a conveyance is a marked one. Ridgeley v. Johnson, 11 Barb. 527. The fact that H. L. Horton renounced as executor, therefore, does not dispense with the necessity for obtaining his consent and co-operation for the purpose of a valid conveyance under said will, as even so he would still be considered as a third person, whose consent was necessary. § 122 of the above mentioned chapter of the Revised Statutes, page 2193. In this case no such consent has been obtained.
    Where a power to sell lands is given to executors ratione officii and only by their official name, it has been doubted whether its exercise must not be limited to those who prove the will; but where it is given to executors by their individual names, as in the present will, it is certain that it is vested in all who are thus named, whether they prove the will or not, by force of the will itself and not by force of the probate, and that a devise of the power is then construed to take effect precisely in the same manner as a devise of the legal estate. There is no contradiction or variance in the authorities that a power which an executor takes by force of the will and not of its probate is not divested or affected by his renunciation of the office. Dominick v. Michael, 4 Sand. 400.
   By the Court.—Sedgwick, Ch. J.

The plaintiff testator provided in his will as follows: “ I hereby appoint and authorize H. L. Horton and Thomas J. Hyatt to be my executors of this my last will and testament, and 1 hereby authorize my said executors to sell all or any part of my real and personal estate at any time in their joint discretion—that is to say one is not authorized to sell or exchange without the consent and co-operation of the other—and to give valid" deeds of the same to the purchaser.”

Letters testamentary were issued to the plaintiff Hyatt, and Horton renounced his right to letters' testamentary.

The plaintiff as executor and the defendant entered into a contract to sell and buy real estate formerly of the testator. The defendant objected to take title on a ground which occasions the only question in the case. That question is, “Has Thomas J. Hyatt, as sole acting executor, power under the will to convey to defendant-valid title to the premises ? ”

The plaintiff claims under section 2642 of the Code of Civil Procedure, which provides, “ and where any powers to sell, mortgage or lease any real estate or any interest therein are given to executors as such, or as trustees, or as executors and trustees, and any of such persons named as executors shall neglect to qualify, then all sales, mortgages and leases under said powers, made by the executors who shall qualify, shall be equally valid as if the other executors or trustees had joined in such sale.”

This statute does not deprive a testator of the right of declaring it to be his will that a power of sale, shall not exist in one executor, although the other neglect to qualify. The testator had legal right to shape the power and to declare who should exercise it.

In the present case, the intent was that a single executor, whatever should be the cause of his being single executor, should have no power to sell, and that the power to sell should be based upon the exercise of a joint discretion.

I am of opinion that the defendant should have judgment with costs.

Freedman and Truax, JJ., concur.


text:
    EDWARD LYON, as Receiver, &c., v. EDWARD F. WILDER, Impleaded, &c., Respondent.

      Security for costs—deposit by surety to avoid justification, when deemed property of plaintiff.

    Plaintiff having been ordered to furnish security for the costs of one of the defendants, filed an undertaking for that purpose. Thereafter, one of the sureties, to avoid justification, caused to be deposited in court the amount mentioned in the order, and the clerk gave a written acknowledgment of the receipt of said sum, from the surety, through plaintiff’s attorney, as security for the costs of said defendant, pursuant to order, etc.

      Held, that this was, in effect, an election by plaintiff to obey the order by deposit of the money and not by giving an undertaking, and that the money became plaintiff’s, and the surety plaintiff’s creditor.

      Further held, that where said deposit is ordered to be applied to the payment of the costs of a co-defendant for whose benefit said order was not made, the surety will not be deemed aggrieved thereby, as he does not own the money.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 20, 1888.
    Appeal by Charles Forbes, a surety, from an order directing the application of moneys deposited with the clerk of the court, to the payment of defendant Wilder’s costs.
    The facts appeared in the opinion.

      John H. Parsons, for appellant:—
    I. The only ground offered by respondent’s counsel before the court below, for taking this money, was, that it is justified by certain cases cited by him, which, upon examination, are found to relate solely to cases of deposit for purposes of bail, under peculiar provisions of § 200 of the old Code relating thereto. They have no relevancy to the case at bar, and do not justify taking Mr. Forbes' money, as is clearly shown by Fraser v. Ward, 9 Civ. Pro. Rep. 11.
    I. Mr. Forbes appeared without objection in the matter before the court at special term, was heard, and his rights passed upon. No question of his right so to appear was raised, as is shown by the order appealed from, and the record now before the court on this appeal. If there could be any doubt about his right to appeal, it is amply sustained by Hobart v. Hobart, 86 N. Y. 636; Louden v. Louden, 65 How. Pr. 411; Hotchkiss v. Platt, 7 Hun 56; aff’d, 66 N. Y 620.

      Charles H. Kitchel, for respondent:—
    1. The surety has no right to appeal or be heard on the question. The money deposited became and was the money of the plaintiff. The deposit in such a case is by or for the plaintiff. Code, § 3272; Herman v. Aronson, 8 Abb. N. S. 158; Salter v. Weiner, 6 Abb. 191; Commercial Warehouse Co., v. Graber, 45 N. Y. 343 ; Dunlap v. Patterson Fire Ins. Co., 74 Ib. 145. A motion to get back the deposit could not be made, nor an action to recover it be brought by a surety, but only by the plaintiff. The Code provides two wrays in which a plaintiff may secure the costs of an action. The court must make an order requiring the plaintiff either to pay into court the sum of $250, or, at his election, to file with the clerk an undertaking, etc. (§ 3272). If he elects to adopt the latter method, such undertáking must be executed by one or more sureties (§ 3273). It will be observed that these two methods are entirely different, the one being a method whereby plaintiff may himself secure the costs, without calling upon his friends to aid him, and such act or security is regarded as the act of the plaintiff alone; while the other method provides, as an alternative, that he may call in his friends to aid him in the form of an undertaking. If the plaintiff elects to adopt the former method, he deposits money, his own money. Moreover, by the very terms of the order, it is the u plaintiff ” and not his sureties who are required to pay into court the sum of $250.
    II. The receipt given to the surety instead of the plaintiff makes no difference. The money was received from or handed over for the plaintiff to stay proceedings in compliance with § 3272 of the Code. By that section the deposit is the deposit of the plaintiff. The surety was but the servant or agent of the plaintiff and did the act for him. It was the plaintiff’s act all the same and may be treated or enforced as such. Dykers v. Townsend, 24 N. Y. 61; Coleman v. First National Bank, 53 Ib. 323; Briggs v. Partridge, 64 Ib. 363. Besides, it had the effect intended, and plaintiff had the benefit of it. It enabled the plaintiff to go on with the case, and any and all parties to it -are estopped from saying that it was not the proper security or the act of the plaintiff. Town of Salem v. Williamsburgh Savings Bank, 35 Hun 1; Hill v. Burke, 62 N. Y. 111.
   By the Court.—Sedgwick, Ch. J.

In the course of the action the defendant, Muxlow, had applied for an order compelling the plaintiff to file security for the payment of her costs, and an order was made that the plaintiff pay into court the sum of $250 to be applied to the payment of defendant Muxlow’s costs, or that he file an undertaking, etc. The plaintiff commenced to obey the order by filing an undertaking. The sureties preferred not to have the trouble of attending for justification, and one of them furnished $250 in money. This money was deposited with the clerk, who, probably without the knowledge of the defendants or their attorney of the form of the receipt, gave to the attorney for the plaintiff a receipt in this form : Received from Charles Forbes per T. F. Sanxay, Attorney, as security for costs for the defendant Jane B. Muxlow, pursuant to an order of this court.”

This in effect was an election of the plaintiff not to file the undertaking, but to obey the order by depositing the money. In my opinion the money became the money of the plaintiff, and the appellant Forbes was the creditor of the plaintiff in the amount deposited. For this reason the appellant was not aggrieved by the order appealed from, as he did not own the money.

Order affirmed with $10 costs.

Freedman, J., concurred.


text:
    ALBERT A. LABRO, Respondent, v. ANNIE CAMPBELL, Appellant.

      Forcible entry and detainer in case of lessor and lessee; facts insufficient to maintain action for.—Action under § 2233, Code Civil Procedure— Treble damages under § 1669, what recoverable.

    The lessee of demised premises cannot maintain an action for forcible entry and detainer against the lessee, by reason of his wife’s being compelled by force used by the lessor, or his agents, to leave the demised premises.
    Where attention to his comfort and the health of his wife and child are the sole moving causes for the removal by a lessee from demised premises, an action for forcible entry and detainer will not lie against the lessor for acts done by him or his agents rendering such attention necessary or proper, although such acts may have constituted a trespass.
    In an action for treble damages under § 1669, Code of Civil Procedure, • there can only be a recovery for damages happening at and after the time of disseisin and whatever is recovered must be the consequences of the force used to evict.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 20, 1888.
    Appeal by defendant from judgment entered upon a verdict of a jury, and from order denying motion for a new trial. The facts sufficiently appear in the opinion.

      P. B. Hathaway, attorney, and Charles Donohue of counsel for appellant, on the questions considered in the opinion, argued:—
    I. The exception as to the condition of the Aveather was well taken. Its condition from April 2 to 19 had no relevancy to the questions at issue. The action was brought for a forcible eviction and disseisin occasioned by the alleged acts of the plumbers inside the premises of plaintiff. It made no difference, nor could it have increased plaintiff’s discomfort or affected his right to damages what the state of the weather Avas at that period. There is nothing in the evidence to shoAV that plaintiff was injured by any change of. the atmosphere.
    II. The exception taken as to repairs to carpets, etc., and moving expenses was well taken. The evidence in the case clearly showed that the furniture and carpets, if injured at all, were so injured by the dust and dirt occasioned by the improvements being made in the upper part of the building. And that such repairs Avere made in the month of March, and before April 2, 1887, and therefore could not form any element in the plaintiff’s claim for damages in this action. The damages sought were for forcible eviction, and proof of breach of covenants under the lease was not admissible. The defendant, if charged at all, could only be charged with such damages as necessarily greAv out of and were directly caused by her unlawful acts.
    III. The exception to the denial of the motion to dismiss the complaint Avas well taken. The statute under which this action was brought is section 1669 of the Code of Civil Procedure. On this the plaintiff must recover, if at all. The statute is highly penal, and must be strictly construed. Van Valkenburgh v. Torrey, 7 Cow. 282; Seward v. Beach, 29 Barb. 239. The thing punished by the section is the doing of certain things forbidden by § 2253 of Code of Civil Procedure. “ An entry shall not be made into real property, but in a case where entry is given by law, and in such case only in a peaceable manner, not with strong hand, nor with multitude of people.” .... These sections are but the reproduction of the Revised Statutes, and that but the re-enactment of a long series of laws preventing the landlord from re-taking property claimed by him without resort to law, and forbidding his forcible ousting of the tenant. Under this section the court was asked to hold on the evidence that the defendants forcibly evicted, disseised, and put out this plaintiff from the premises in question. No claim is made for injury to plaintiff’s holding or use of premises or for damages for breach of covenant of quiet enjoyment, but simply and solely under this statute for forcible eviction, ejectment and disseisin. There is not in the whole of the evidence the merest shadow or claim of seisin, possession or entry by the defendant. Trespass is not enough to sustain the action. People v. Smith, 24 Barb. 16-19. It must be by seisin of possession. People v. Nelson, 13 Johns. 340; People v Reid, 11 Wend. 157; People v. King, Col. & Cai. 364 ; People v. Shaw, Caine 125; People v. Leonard, 11 Johns. 504. The evidence clearly and indisputably shows that the plumbers went into the premises for the purpose of making needed repairs for the betterment of plaintiff’s holding. That only on one or two occasions was there any claim of forcible entry on the part of the plumbers. That in the interval between the first and second occasion, the plumbers were continually in said premises making such repairs.

      Joseph N. Goldbaeker, attorney and of counsel for respondent, on the questions considered in the opinion, argued:—
    1. The damages were not excessive, and are sustained by the evidence. If anything the damages are inadequate. The weather was cold, freezing during part of the time; plaintiff was compelled to send his child, which became sick, away, from 14th April until the 18 th April, when they moved. They were a week without gas, and, in short, “ had no home.” It would not, in view of all this, seem that the verdict should be disturbed as excessive. Yates v. Cent. R. R. 67 N. Y. 100.
    II. The acts testified to on the trial read more tamely than they were enacted. They constitute force—and the defendant’s objection on this point only raises the question of the degree of force. Where is it held that the force must be such as to result in bruises and blood, or destruction of property ? If this court holds so, will it not thereby sanction any violence up to aggravated breach of the peace ? On the contrary, it has been held that even threats of violence constitute force. People v. Rickets, 8 Cow. 226; Willard v. Warren, 17 Wend. 257. If the landlord wanted her house for the purpose of making alterations before the expiration of the term—she could enter only by process of law. People v. Police Dept., 41 Super. Ct. 323. The case of the People v. Police Dept., goes further than is necessary to support the judgment in the case at bar. In that case there was not a single act of violence—only the unresisted stationing of men in the relator’s rooms— and the act was held to apply; and in Kelley v. Sheehy, 49 Super. Ct. R. 518, the violence consisted only of pushing by the plaintiff and placing a fence; in our case there were pushes and other acts followed by placing gas pipes—tearing floors—moving articles, etc,, yet a verdict for $105 was sustained. Kelley v. Sheehy, 49 Super. Ct. 518.
    III. As no forcible entry took place prior to 2d April, 1887, the occurrences before that date need not be discussed. The judge’s ruling was so broad that the defendant cannot have been in any way harmed by evidence of things prior to 2d April.
    IV. The objection based upon the amount of damages is no .ground for a new trial. First, because the damages in themselves are not excessive; second, because error in respect to evidence of damages was cured by the judge’s ruling above referred to; third,, because such error has been held by the court of appeals not to be ground for new trial. Yates v. Cent. R. R., 67 N. Y. 100.
    V. Plaintiff is entitled to treble damages when the trespass is a disseisin. This is the statute referred to in the plaintiff’s complaint. Code Civ. Pro., § 1669; Keely v. Sheehy, 49 Super. Ct. 518; Robinson v. Kinne, 70 N. Y. 155; Starkweather v. Quigley, 7 Hun 28.
    VI. The jury having found single damages, it is imperatively the duty of the court to treble them. Code Civ. Pro., §§ 1184, and 1020.
   By the Court.—Sedgwick, Ch. J.

The action was for a violation of § 2233 of the Code of Procedure: “ An entry shall not be made into real property, but in a case where the entry is given by law, and in such a case, only in a peaceable manner, not with strong hand or a multitude of people.” Or the action would he at common law for forcible entry and detainer.

The complaint demanded treble damages under section 1669, which provides if a person is disseised, ejected, or put out of real'property in a forcible manner .....he is entitled to recover treble damages, in an action therefor against the wrong doer.

The plaintiff at the time of the occurrence complained of was the lessee of the defendant, of the premises in question. Workmen of the defendant, went upon the premises and against the objection of the plaintiff insisted upon going in, did go in and continued there, going in every day for about a month, working there and leaving when the work was done. We will assume but not decide that the defendant was responsible for all that the workmen did and that the workmen used force of the kind that is forbidden by the law against forcible entry. Still it appears in contro vertibly by plaintiff’s own testimony that such force was not used against him, or that the force was not the occasion or cause of his leaving the premises.

The case was tried below, as if the wife of the plaintiff was the plaintiff or had the right to prosecute such an action. If she left the premises, by reason of the force, she was not the possessor of the premises. The plaintiff her husband was in possession, and there was no evidence, even that the force used to the wife caused him to leave.

In an approved case, Willard v. Warren, 17 Wend. 262, the court held that a jury should have been charged that personal terror or force was a necessary ingredient of such an action. In People v. Smith, 24 Barb. 18, citing Willard v. Warren, supra, and The People v. Reckert, 8 Cow. 232, it was said that there must be circumstances of force or terror, and that a mere naked trespass to lands never was yet holden sufficient. A mere trespass will not sustain the action. Wood v. Phillips, 43 N. Y. 158; People v. Field, 52 Barb. 214.

The plaintiff’s testimony was that by reason of the workmen disturbing his premises, he, when he came home, had no home; the floor was torn up; the bureau, bed and everything removed; everything full of dirt and dust; he could hardly wash himself; his wife and babe became sick. “I had no comfort for over a month, from early in March till when I left in April.” He afterwards said that his wife and baby got sick, and the risk was such that I had to take other rooms.

From this it appears, that the cause of the plaintiff’s leaving the premises was not an ouster or eviction by force, but attention to his comfort and the health of his wife and babe. There may have been a trespass but there was no action for forcible entry.

There are, it is said, actions of this kind where the entry is made by force, of a certain kind, upon unoccupied premises. In those cases the entry must be to take possession as a disseisor in fact. That did not occur in this case.

I am of opinion, that in an action for treble damages (§ 1669) there can be only a recovery for damages happening at and after the time of the disseisin, and that whatever is recovered must be for the consequences of the force used to evict.

Those cases that hold that as between landlord and tenant, there may be an eviction by the former of the latter, by means not amounting to physical expulsion, are not applicable to actions for forcible entry and detainer.

I am of opinion that the motion to dismiss the complaint should have been granted at the trial.

Judgment and order appealed from reversed, and new trial granted with costs to abide the event.

Freedman and Trttax, JJ., concurred.