68

FEDERAL REPORTER.

vol. 53.

w.Jost.:tby biSfailure to comply with the statute that required his ftnsbprobfs,tobe, made. within a certain time, and the ca.ncellation of hm·.entq; :llilB79. Considering, a,s. I have steadily m.untained we should,theteondition of the land a.t·tb.e time the definite line of plain. tiff's road ,was fu:ed, and the grant to, it received precision, I cannot see how I can reach: 'any other conclu$Jon, than that plaintiff is the owner of the land'ittrdispute. I tb.ereforednd .that the plaintiff is the owner of the land:deSQribedin the complamt,herein, an,dentitled to the possession theroof:;:tb.at defendants a.rein possession of the same with· out itsconsen1:; 'and wrongfully. It is therefore ordered that judgment be entered in this case in f&.'!orofplaintiff and against defendants for the possession ,of the lan,d described in the complaint, and for its costs of suit..
HAGUE v. AHRENS.

(Circuit Court of Appeals, Third Circuit. No.8. November 10.1892,)
AND COVENANTS.

1.

LANDLORD AND

A lea$8 contain.ed the. following clause: "This lease not to be sold. assignE!d, or transferred WlthQut the written consent of the party of the first part." Held, that this 'was a covenant, and not a condition, and the lease would pass by an assignment without the lessor's consent, so that the assignee could maintain ejectmeJ;it qnder it. A request. to charge that a surrender of a lease had occurred by operation of law beclUlse afthe facts therein stated contained only a part of the facts bearing on the question of surrender. Held, that the. court properly refused the request. and submiHedthe question to the jury on all th,e evidence.
OF PROOF.

2.

SAME-INWlRUOTIONS-SURRENDER OF LEASE.

8,

Where,h\ an action of ejectment, based 'upon a lease from the owner, defendant relies on an alleged surrender thereof, the burden is on him to show It. aljd that burdell is ·not. s.hifted merely because the .as to the sur· render in with plaintiff's proofs.

William H. being tHe owner of certain lands, made a lease thereof for 15 years to O. &. J.'Bigglns. ,fo'r' the purpose of mining for oil and gas. The lease contained the "This lellse not to be sold, assigned, or transferred without the written of the' pm-ty of the first part." The lease also provided that the mining operations therein contemplated should be prosecuted with diligence, and tha't no cessation ofwork should continue over 30 days, and also that the ,lessees might terminate and surrender the lease at any time after It sh\>uld be proved by c;lrilling one or more wells that oil could not be found on or under the land in paying quantities. The lessees never entered under the lease, but. without the consent of the lessor, assil:rned it to the Oltizens' Gas Oompany, Who entered and drilled a well ul'lon the hind. After.obtaining some gas, ,which they did not Il,tilize; they drilled for a short time, when they lost or" stuck" . their drill in the well, and wholly ceased operations upon .theland, and removed 'the engine and boiler used 'in drilling. Some months after the Oitizens' Gas Com. pany ceased drilling, Webb'rnade another lease to Rague, (the defendant,) who, finding- the possession vacant. entered and drilled a well thereon, which produced gas in large quantities, and rendered the land profitable to the owner and lessee. While so engaged, the Citizens' Gas Company made no claim of any right or interest in tIre premises. but some time thereafter executed a paper purporting to

In Error to the Circuit Court of the United States for the Western District of Pennsylvania. Action: of ejectment brpught by George H. Ahrens against W. W. Hague. Judgment for plaintiff. Defendant brings error. Affirmed.

RAGUE V. AHn.ENS. , ,

'i

59

assign the lease under which they claimed to Al!-rens. (tbeplaintilf,) who brought this action of ejectment against ,Hague to recover possession of the premises.

Carl I. Heydrick, Roger Sherman, and Samuel Grumbine, for plaintiff in error. John P. Vincent and Wilbur & Schnur, for defendant in error. Before DALLAS, Circuit Judge, and BUTLER and BUFFINGTON, District Judges. BUTLER, District Judge. The errors assigned are as follows: First. "In its answer to the said defendant's first prayer for instructions to the jury, which prayer was as follows, to wit: 'Tho lease from W. H. Webb to Orin Siggins and John Siggins, by its express. terms, is not assignable, except by and with the consent in writing -of the said W. H. Webb, and, no such consent having been shown, the plaintiff has shown no such title under said lease as will support this action;' and was answered by the court as followli, to wit: 'Refused.'" Second. "In its answer to the said defendant's second prayer .for instructions, which prayer was as follows, to wit: 'The lease under which the plaintiff claims, on the one hand requires that the lessee shall prosecute the mining operations therein contemplated with reasonable diligence so long as they shall hold thereunder, and not cease operations for more than thirty days, and on the -other hand provides for a surrender by the lessees before the expiration of the term. Therefore, if the lessees, or those claiming under them, commence the drilling of a well upon the premises, and after drilling the same to the depth of about 1,500 feet, and while continuing the drilling "stuck" the tools in the well and never thereafter took them out, or in any manner rendered the well productive of profit to the lessor, but on the contrary wholly ceased operations upon the land, and removed their engine and boiler from the premises, and thereafter made no claim to any right or interest in the premises while the defendant, Hague, was drilling thereon until after he had obtained a large and profitable gas well thereon, such acts and omissions amount to a surrender by act and operation of law, and the plaintiff cannot recover;' and was answered by the court as follows, to wit: 'Refused.' " Third. "In that portion of its charge to the jury which was as follOWS, to wit: 'On the other hand it is claimed by the defendants that the whole conduct of the gas company is consistent with the theory that it gave up the property, failing to strike a productive well, and that its actions must lead to a conviction that it had indefinitely suspended operations and abandoned the property, and that it was only after the defendant commenced operations and obtained a good well that the gas company concluded to hold on to its lease. The testimony has been fully reviewed by the counsel, and it is not nec.essary that it be again detailed to you. The burden is upon the defendants to satisfy you upon this question.' " The court treated the clause of the lease (recited in the first assignment) as a covenant, simply. The plaintjff urged and still urges

60

FEDERAL REPORTER,

vol. 53.

no other signification. Was the court right? A condi· tion subsequent is a contingency named, on the happening of which a grant nuw be defeated,-such as the faUure to pay money, erect .01' ,do any other required act, the faUure to do which authe grantor's' re-entry. A conditional limitation-an ex· 1tmple of which is a grant to one so long as he occupies the premises, 1)1' to a widow during widowhood-differs from it only in form, and the ·fact that re-entry is not necessary to terminate the grant. The law:regards conditions with the same disfavor it does forfeitures; and forsimUar reasons. 'A clause wUl not therefore be treated as a condition' if it can be· construed a covenant without violence to its terms. If the purpose':to create a condition, or conditional limitation,. is 'not expressed in" clear, unequivocal language-as the courts haveflrequently said in' "apt terms," such as "upon condition," "pro· vidednevertheless," "so long as," "during," etc.-the clause wUl be treated as a covenant" simply. The proviflion under consideration does not contain such language. The terms, "This lease shall not be sold; ··assigned, or transferred, without the written consent of the party of the :first part;" convey no suggestion even that the lease may be lost by suchtransfa-. They express simply an agreement by the lessee, who alone could make the transfer, that he· will not do it. If the lessor was not satisfied with the remedy which the law affords for breaches of such agreements he should' have stipulated for an· other by adding terms of condition or forfeiture. That he knew vePy'welihow to do tlilil,aind had it in mind, as respects breaches' of other:pll'ovisions of the: lease; is shown by the following clause: "A faiL'tIre/to pay the' money after demand made, or put down the well, as hereiiiafterstipulated; 'shall forfeit,this lease within one year from the date. hereof." The' inference is strong, therefore, that he did not contemplate similar consequences as the result of a transfer. .,.' lFhis;eonstruction has':the support of abundant authority. In Doe v;·Gbdwin, 4 Maule & S.'265, the lease contained a similar provi· siona;gainst assigning; and also a provision for forfeiture on breaclrof other covenants. The court held that there was no right.of re-entry for· breach of the provision against assigning; that it did not create a condition but a covenant merely. In Crawley v. Pricej L. R. 10 Q. B. 302, the lease contained a similar provision; and it was held that the lessor could not re-enter for its breach; that it was not a condition, but a covenant merely; and that a right of .re-entry provided for the breach of other covenants, could not, under the circumstances, be applied to it. In Shaw v. Coffin, 14 C. B. (N. S.) 372, the lease contained the following clause: "The tenant agrees that he will not underlet the premises without consent of the landlord." On its breach the court held that it did not create a con· dition, for the reason, as expressed,. that no words of agreement merely will create a condition; that to produce this effect apt terms must always be employed. In Den v. Post, 25 N. J. Law, 285, the lease contained a similar clause; and upon its breach the court held it to be a covenant merely and not a condition, saying that to war-

tlJiatftfs,a ''limitation.'' By this term he must be to means condition subsequent, or a conditional limitation; as applied

OHICAGO " 5.

W.

RY. CO. V. DAVIs.

Gl

rant a different constructiOn,. other langUage; plainly indicating the purpose to create a condition, as provision for re-entry, forfeiture, etc., must be employed. In Spear v. Fuller, 8 :N. H. 174, where a similar provision was under consideration, the court held it to be a covenant merely, and not a condition. The authority of this case is weakened however by the fact that its ruling does not rest exclusively on this ground. In Wheeler v. Dascomb, 3 Cush. 285, the lease contained the following provision: "The tenant agrees to deliver up the premises (during the term) on three months' notice." This it was held did not create a condition, for the sa1l1e reason-the absence of.appropriate language to express such a limitation. See, also, 1 Washb.ReaI Prop. §§ 504·-506, 510, 511. The plaintiff refers us to Mason v. Corder, 7 Taunt. 9, and Hynes v. Ecker, 34 Mo. App. 650. The former is a decision on motion for new trial, and is so meagerly and unsatisfactorily reported as to be of little value. The latter is a decision of the district court of St. Louis and Kansas City, and does not seem to involve the question. The point recited in the second assignment, the answer to which is also complained of, raquest,ed the court to say. that because of the facts therein stated aswrender by operation of law had occurred. The statement contains only a part of the facts bearing on the ques· tion. T4e court refuSed. ,the point and submitted the question of sur· render to the jury on all the eyidence. In this we think it was right. Tha. third assignment is llased on the court's instruction that tlle burden of proof. respe.cting .the question of was on plaintiff it!. error. Here agajn. we think the court was right. It is immatel'ial that the testimony respecting the question, on which the plaintiff relied, went in with the defendant's proofs. The allegation of surre:pderwas the plaintiff's-was a part of his case-and he was therefore.bolmd to sUliltain it; by reference to ... the necessary proof. Finding no error in the several assignments, the judgment is af· firmed.
CHICAGO

& N. W. RY. CO. v. DAVIS.

(Circuit Court of Appeals. Eighth Circuit.
No. 84.

October 17,1892.)

MAsTER AND SERVANT-DEATH BY WRONGFUL ACT-CONTRIBUTORlr NEGLI' GENCE.

A section man on a railway, who releases his hold on a hand car, descends therefrom, stands upon the track on a down grade, in front of a dump car, by chance detached from the hand car, and closely following it at the rate of from three to four miles an hour. and is killed thereby. is guilty of such contributory negligence as to bar a recovery for his death.

In Error to the Circuit Court of the United States for the Southern District of Iowa. of the estate of Olaf Hoedling, Action by A. T. Davis, deceased, against the Chicago & Northwestern Railway Company, for death by wrongful act. Verdict and judgment for plaintiff. Defendantbr,ings eITor. Reversed.