ditament, capable of distinct inheritance and conveyance," and to the methods of transferring which the general rules regarding conveyances of real estate ordinarily apply. The owner of land may therefore convey the surface or soil in fee, reserving or excepting either an estate in the minerals, or a right to mine them; he may convey an estate in fee in the minerals separate from the soil; or, while retaining in himself the property in the minerals until removed and in possession of the grantee, he may either grant the right or privilege to mine for them, or may lease for a term of years the land itself, together with the privilege of mining during the term. Barringer & Adams on the Law of Mines & Mining, p. 35; Adams v. Briggs Iron Co., 7 Cush. 361, 366; Caldwell v. Fulton, 31 Pa. 475, 72 Am. Dec. 760; Manning v. Frazier, 96 Ill. 279; Wardell v. Watson, 93 Mo. 107, 5 S. W. 605; Hartford & Salisbury Iron Co. v. Miller, 41 Conn. 112, 129.

The instruments by which these several estates or interests in minerals are created are frequently, without distinction, called "mining leases," and the numerous decisions as to the respective titles conveyed by them are not entirely harmonious. Their legal effect is to be determined not so much by the name given to them, or the technical terms employed in them, as by ascertaining from the entire language of each instrument the real intention of the parties, by applying to it the ordinary rules governing the construction of written conveyances. When it clearly appears from the language of the instrument that it was intended to convey at a fixed price the whole or a specified part of the unmined minerals in a described tract of land, it is generally held that an absolute ownership in fee of such minerals in place vests in the grantee immediately upon the delivery of the conveyance, and in some cases-particularly in Pennsylvania-it has been so held when the conveyances took the form of leases for a term of years. Chester Co. v. Lucas, 112 Mass. 424; Hobart v. Murray, 54 Mo. App. 249; Edwards v. McClurg, 39 Ohio St. 41; Hope's Appeal, 29 Wkly. Notes Cas. 365; Sanderson v. Scranton, 105 Pa. 469; Montooth v. Gamble, 123 Pa. 240, 16 Atl. 594; Lillibridge v. Lackawanna Coal Co., 143 Pa. 293, 22 Atl. 1035, 13 L. R. A. 627, 24 Am. St. Rep. 544; Kingsley v. Hillside Coal & I. Co., 144 Pa. 613, 23 Atl. 250; Lazarus' Est., 145 Pa. 1, 23 Atl. 372; Plummer v. Hillside Coal & I. Co., 160 Pa. 483, 28 Atl. 853.

Instruments which only give a right or privilege of entering upon land for the purpose of mining and removing the minerals therefrom are held to convey no title to or property in the minerals themselves while in the ground, and to create no greater interest in land, even though that interest be real estate, than an incorporeal right to mine, with a title in the minerals after they have been removed by the grantee. Stockbridge

Iron Co. v. Henderson Iron Co., 107 Mass. 290; Smith v. Cooley, 65 Cal. 46, 2 Pac. 880; Kamphouse v. Gaffner, 73 Ill. 453; Boone v. Stover, 66 Mo. 430; Silsby v. Trotter, 29 N. J. Eq. 228; Baker v. Hart, 123 N. Y. 470, 25 N. E. 948, 12 L. R. A. 60; Gillett v. Treganza, 6 Wis. 343; Gaston v. Plum, 14 Conn. 344.

The weight of authority clearly is that an instrument which purports to convey certain land at a fixed rent, for a term of years, for the purpose of mining, or with the privilege of mining during the term, or which grants merely the right or privilege to mine for a term of years upon described land, conveys no greater estate in the land or the minerals in place than a chattel interest. Barringer & Adams on Law of Mines & Mining, p. 51; Austin v. Huntsville Coal & Mining Co., 72 Mo. 535, 37 Am. Rep. 446; Genet v. D. & H. Canal Co., 136 N. Y. 593, 32 N. E. 851; Knight v. Coal Co., 47 Ind. 105, 17 Am. Rep. 692; Massot v. Moses, 3 S. C. 168, 16 Am. Rep. 697; Cowan v. Radford Iron Co., 83 Va. 547, 3 S. E. 120; Duke v. Hague, 107 Pa. 57: Brown v. Beecher, 120 Pa. 590, 15 Atl. 608; Ganter v. Atkinson, 35 Wis. 48; Denniston v. Haddock, 200 Pa. 426, 50 Atl. 197. In the case last cited, which was decided in 1901, Mitchell, J., in speaking of some of the earlier Pennsylvania decisions, says that "the expression that a conveyance of coal in place, even by a lease for a limited term, is a sale, is inaccurate as a general proposition of law, and unfortunate from its tendency to mislead," and that "the rules applicable to sales are not to be applied indiscriminately to such instruments, but each is to be construed, like any other contract, by its own terms." A collection of cases regarding questions of title to minerals under conveyances of different characters may be found in chapter 2 of Barringer & Adams, above cited.

Examining the two leases before us, we find that they do not, in terms, convey either the whole or any specified part of the minerals in or under the described land. Each instrument expressly leases to Phillips, his heirs and assigns, for the term of 40 years, a described tract of land, "for the purpose of mining garnets thereon, with all the rights pertaining thereto, such as the right to mine for said garnet or the mineral product contained in said property, with privilege to cart and carry away such garnet and product from said lot, with right of way to and from." For said purpose the lessee is given the right to erect buildings and machinery, and to remove them at pleasure. He is to pay a certain rent semiannually, and also a royalty of $2 per ton, payable monthly, upon all garnets "so mined and taken from said property." After the second year the lessee may terminate the lease by the payment of $500. "If the rent of said property is not paid when due then and in such case the property shall revert to the party of the first

part" (the plaintiff), and the instrument is to become null and void. The leases are executed as deeds by both parties, and recorded. By these provisions the lessee does not pay any sum for the garnets in place, but pays a fixed annual rent for the property, whether he mines the garnets or not, with the right to remove the minerals only during the term, which may be forfeited for nonpayment of rent or terminated by the lessee, after two years. No quarries or mines were conveyed, for none existed when the leases were executed. It is not claimed that the lessee took any greater interest in the land, apart from the minerals, than an estate for years. In so far as these instruments convey an interest in land, they are either grants of an incorporeal right to mine for a term of years, the title to the minerals to vest in the grantee only after they have been removed by him, or they are leases of the described land for a term of years, with the added right of mining during the term of the lease. In either case the interest of the grantee or lessee in either the land or minerals is but a chattel interest, and when created by contract, as this was, it is not such an interest in land as, under our statutes, is taxable as the property of Behr & Co. It does not appear that any of the buildings erected for mining purposes under said leases were placed in the plaintiff's list.

A second defense to this action alleges, in substance, that the board of relief was justified in increasing by $2,500 the value of the land listed by the plaintiff. In sustaining the plaintiff's demurrer to this defense at a prior session, the court appears to have held it insufficient only because it appeared of record that the board of relief did not so increase the valuation of plaintiff's land, but added thereto the garnet quarry. This was not an adjudication of any question afterwards decided by the trial court.

The voluntary appearance of the plaintiff before the board of relief, where, without objection to the notice he had received, he was fully heard upon the merits of the matter in question, obviated any defect in the notice required by statute, and all evidence tending to show that the plaintiff was inconvenienced by reason of the shortness of the notice was properly rejected. People v. Sherman, 83 Ill. 165; Hale v. People, 87 Ill. 72.

ed by section 2346 as will render its action in adding the garnet quarry to the plaintiff's list void. Nor is the validity of the act of the board of relief in adding the garnet quarry to the plaintiff's list affected by the fact that it was also erased from the list of Behr & Co., although they did not appear before the board as provided by section 2348. Ives v. Goshen, 65 Conn. 456, 460, 32 Atl. 932.

As it appears from the leases themselves that the plaintiff was the owner of the quarry in question, he could not have been injured by the evidence, admitted against his objection, that he listed it as his own in 1899 and 1890.

There is no error. The other Judges concurred.

(4 Pen. 255)

ARMSTRONG v. LITTLE. (Superior Court of Delaware. New Castle. Feb. 16, 1903.)

ASSAULT AND BATTERY-DEFINITION-PROVO

CATION-RESISTANCE-DAMAGES-WIT-
NESSES-CREDIBILITY.

1. An assault is an unlawful attempt to do violence to the person of another, and a battery is the unlawful commission of such violence.

2. Offensive or insulting words cannot justify an assault and battery.

3. When one is assaulted, it is his duty to escape the danger if he can without risk; but, if he cannot, he may use such force as is necessary to repel the attack.

4. The resistance or retaliation of a person assaulted and unable to escape must not be excessive or out of proportion to the provocation or danger threatened, and, if it is so, the party is guilty of an unlawful assault."

5. In a civil action for assault and battery, nominal damages may be awarded where plaintiff's injuries are so trivial as not to justify compensatory damages.

6. In judging of the weight and credibility of testimony, the jury should consider the character, intelligence, opportunity of knowledge, and interest of the witnesses, as well as evidence concerning their general reputation for truth and veracity.

Action of trespass vi et armis by Robert Armstrong against George Washington Little. Verdict for plaintiff.

Argued before LORE, C. J., and SPRUANCE and GRUBB, JJ.

Horace G. Eastburn, for plaintiff. J. Harvey Whiteman, for defendant.

SPRUANCE, J. (charging jury). This is an action of trespass brought for the recovery of damages for an assault and battery alleged to have been committed by the defendant upon the plaintiff. An assault is an unlawful attempt to do violence to the person of another, and a battery is the unlawful commission of such violence. Mere words, however offensive or insulting, cannot justify an assault and battery. When one is assaulted, it is his duty to retire beyond the reach of danger, if he can do so without the risk of injury; but, if he can

2. See Assault and Battery, vol. 4, Cent. Dig.

not do so, without exposing himself to the threatened violence of his adversary, he may use such force as may be sufficient to repel the attack upon him, but such resistance must be no more than is necessary to protect himself from bodily harm. If his resistance or retaliation be excessive, or out of proportion to the provocation or the danger threatened, it will not be justifiable, but will be an unlawful assault.

The plaintiff claims only compensatory damages, and expressly disclaims any right to exemplary or punitive damages. If, therefore, you should find that the defendant committed an unlawful assault upon the plaintiff, you should find a verdict in his favor for such sum, and no more, as will reasonably compensate him for his injuries occasioned by such assault, having regard to his suffering and loss in the past, and the future, if his injuries are permanent, his inability to labor, loss of time, and actual expenses incurred by reason thereof.

If you should find that the alleged unlawful assault and battery was committed by the defendant under the immediate influence of the passion provoked by insulting and offensive language of the plaintiff, this would not justify you in mitigating or reducing the compensatory damages which but for such language you may find that the plaintiff would be entitled to recover.

If you shall conclude from the evidence that the alleged personal injuries of the plaintiff were not occasioned by an unlawful assault of the defendant, but were occasioned by the carelessness or misadventure of the plaintiff, you should not regard such injuries in the assessment of the damages to be awarded to the plaintiff.

If you shall find that the defendant did commit an unlawful assault upon the plaintiff, but that the, injuries to the plaintiff from such assault were so trivial as not to warrant you in awarding him damages as compensation therefor, you may find a verdict for the plaintiff for a nominal sum only.

Where the evidence is conflicting, you should reconcile it so far as it is possible; but, where you cannot do so, you should reject that which appears to be unworthy of credit, and accept that which you deem reliable.

In your examination of the testimony of witnesses, you should have regard to their character, intelligence, opportunity of knowledge, interest, and all other facts before you which may aid you in reaching a proper conclusion as to the credit to which they are entitled. In considering the weight to be given to the testimony of a witness, you should have regard to the evidence before you as to his general reputation for truth and veracity.

Your verdict should be for that party in whose favor is the preponderance or weight of the evidence.

Verdict for plaintiff for $25.

(4 Pen. 272)

MCALLISTER v. PEOPLE'S RY. CO. (Superior Court of Delaware. New Castle. Feb. 27, 1903.)

CARRIERS-STREET RAILROADS-INJURIES TO PASSENGERS - MOTIVE POWER-CARE REQUIRED NEGLIGENCE - ACTIONS ISSUES AND PROOF-DAMAGES.

1. The degree of care required of a carrier to be exercised for the safety of passengers is the same whether the motive power is steam or electricity.

2. A carrier is required to use the highest degree of care and diligence reasonably practicable in securing their safety by keeping its cars and appliances in a safe condition and at all times under the control and management of skilled and competent servants.

3. Where, in an action for injuries alleged to have resulted from a collision on a street railway, the declaration averred that plaintiff was thrown from his seat to the ground by the force of the collision, proof that plaintiff jumped from the car on which he was riding, and was injured, in his endeavor to escape the danger of the collision, would not justify a

recovery.

4. In an action for injuries by reason of a street car collision, evidence that the motorman lost control of the colliding car by reason of the fact that a snap switch on the rear of the car was closed when it should have been open, was inadmissible under the declaration charging that the car was improperly equipped with a defective air brake.

5. Where a snap switch on a street car was closed when it should have been open, and by reason of its being closed, the air brake thereon failed to act effectually, which resulted in a collision, the failure of defendant's employés to discover that the switch was closed, and open the same, constituted negligence.

6. A passenger injured by a carrier's negligence is entitled to recover reasonable compensation for his injuries sustained, including pain and suffering, impaired capacity to labor since the accident, and his probable loss of time and labor in the future, resulting from his injuries; and, if the injuries are permanent in character, he is also entitled to recover for any impairment of earning capacity in the future.

Action by John B. McAllister against the People's Railway Company. Judgment for plaintiff.

Argued before LORE, C. J., and SPRUANCE and BOYCE, JJ.

J. Harvey Whiteman, Henry C. Conrad, and Daniel O. Hastings, for plaintiff. William S. Hilles, for defendant.

BOYCE, J. (charging jury). This action was brought by the plaintiff to recover damages for personal injuries alleged to have been sustained by him by reason of the negligence of the defendant company. It is claimed by the plaintiff that he was, on the 30th day of May, 1901, a passenger on car No. 12 of the defendant company, which was then being propelled by electricity, in a westerly direction, along the track of the defendant, on Sixth street, in this city; that at the same time cars Nos. 16 and 5 of the defendant company, and in the order mentioned, were running along the same track, in an opposite direction, towards car No. 12; that the defendant company carelessly and

2. See Carriers, vol. 9, Cent. Dig. § 1087.

negligently used and operated car No. 5, in that the circuit breaker, the air brake, and hand or ratchet brake attached thereto, were defective; that the car so equipped was carelessly and negligently operated by an unfit, careless, and incompetent servant as motorman; that by reason of the defective brakes and the incompetency of the motorman, the latter lost control of the car while descending a steep grade between Broome and Madison streets intersecting Sixth street; that the car so managed collided with car No. 16, driving the latter car with great force against car No. 12, upon which the plaintiff was riding, between Madison aud Monroe streets; and that the plaintiff was thereby thrown out of the car upon the ground with great force, whereby he sustained great and permanent bodily injuries. The plaintiff further alleges that he was, at the time of the accident, in the exercise of due care and caution.

The defendant company, on the other hand, while admitting that car No. 5 collided with car No. 16, which in turn collided with car No. 12, denies having previous knowledge of the alleged defects in car No. 5, and of the alleged incompetency of the motorman in charge of the car; and claims that at the time of the accident the car was nearly new, and was equipped with the best and safest appliances, and was operated by skillful and competent servants; that their servants exercised due care and diligence in attempting to avoid the collision, and that the accident was not due to any neglect or fault on the part of the defendant company, or any of its servants; that shortly before and after the accident the circuit breaker, air brake, and hand or ratchet brake were in good condition; that the defendant was not thrown out of the car by reason of the collision, but that he jumped from the car while it was in motion, and before the collision; and that the plaintiff has not sustained any permanent injury by reason of the accident complained of.

It is admitted that the defendant company is a common carrier, engaged in the business of conveying passengers over and along its roadway, and that the plaintiff was rightfully a passenger on car No. 12, immediately preceding the time of the accident.

The gist of an action for personal injuries is negligence. Negligence is never presumed; it must be proved. It is therefore incumbent upon the plaintiff in this action to satisfy you by a preponderance of the evidence that the accident complained of was the result of the negligent conduct and management on the part of the defendant company; and, if the plaintiff has failed to so prove the negligence of the company, he cannot recover. The law imposes upon common carriers of passengers the duty of provid ing safe cars, machinery, and appliances, and of keeping them in good repair and safe condition; and of providing competent and careful motormen and servants, and to see

that they use reasonable care in operating the cars so as to avoid danger; and to do all and every the things with respect to these matters that may be reasonably necessary to secure the safe transportation of its passengers. Maxwell v. Wil. City Ry. Co., 1 Marv. 199 (206), 40 Atl. 945. In the case of Flinn v. P., W. & B. R. R. Co., 1 Houst. 469 (499), this court said: "Common carriers of passengers are responsible for any negligence resulting in injury to them, and are required in the preparation, conduct, and management of their means of conveyance to exercise every degree of care, diligence, and skill which a reasonable man would use under such circumstances. This obligation is imposed on them as a public duty, and by their contract to carry safely, as far as human care and foresight will reasonably admit. A railroad company, using as it does the powerful and dangerous agency of steam, is bound to provide skillful and careful servants, competent in every respect for the posts they are appointed to fill in their service; and is responsible not only for their possession of such care and skill, but also for the continued application of these qualities at all times." The degree of care required in these matters is the same whether the motive power be steam or electricity. A common carrier is not an insurer of the safety of its passengers, but it is required to exercise the highest degree of care and diligence that is reasonably practicable in securing their safety by keeping its cars and appliances in a safe condition, and at all times under the control and management of skilled and competent servants. There is at the same time a duty resting upon the passenger to act with prudence, and to use the means provided for his safe transportation with reasonable circumspection and care, and, if his negligent act contributes to bring about the injury of which he complains, he cannot recover. Betts v. Wil. City Ry. Co., 3 Pennewill, 53 Atl. 358.

Evidence that the plaintiff, to escape the danger of a collision between cars Nos. 16 and 12, jumped from the car upon which he was riding, will not support any count contained in the plaintiff's declaration, it being averred in some of the counts therein to the effect that he was thrown from his seat; in others, that he was thrown out of the car upon the ground. Higgins v. Mayor and Council of Wil., 3 Pennewill, 51 Atl. 1. The plaintiff has failed to make any allegation that he received any injury by jumping from the car, or that he did in fact jump from the car, and there is no count in the declaration which would support the proof, if there be any, that the plaintiff jumped from the car. If, therefore, you find that the plaintiff received no injury except by jumping from the car, and that whatever injury he did receive was occasioned by jumping from the car, he cannot recover.

Evidence to the effect that the motorman