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members of which resided in New York, chester, 31 Conn. 407, 411, in which it was had, prior to October 1, 1901, become the held that a lease of real estate for a gross owners of all the estate, rights, and privileges sum for 999 years was to be considered, for granted by said leases, and had opened quar the purposes of that case, as practically a conries or mines upon said land. Behr & Co. veyance of a fee. Such a chattel interest is having given in no tax list for the year 1901, not named either in section 2322 or section the following property was placed in their 2323, which enumerate the kinds of real and list as nonresidents by the assessors: One personal property liable to taxation, unless, mill, $2,500; garnet quarry, $2,500. Said gar indeed, it can be said to be described by the net quarry was upon the land described in language of section 2322 concerning quarries, said leases to Phillips. The plaintiff gave in mines, and ore beds, to which we shall berea list of the taxable property owned by him after refer, and the very fact that section October 1, 1901, one item of which was 89 2341 provides that an estate for years by gift acres of land, duly described, and valued by or devise, and not by contract, shall be set in the assessors at $3,235. Said 89 acres em the list of the person in possession thereof, braced the land described in said leases, but clearly shows that it was not intended by the no quarries, mines, or ore beds were named language of section 2299 to require estates for or included in the plaintiff's list. On Janu years by contract to be listed for taxation in ary 23, 1901, the clerk of the board of relief the name of the record owner of such chatof the town of Roxbury handed to the plain tel interest. The interest in real estate which tiff a writing notifying him to appear on the section 2299 requires to be listed in the name 27th of that month to show cause why they of the record owner is not a mere chattel inshould not add to his list the garnet quarry terest in land, but a freehold interest properly (theretofore listed to him, but omitted that termed "real estate.” Section 2322, in deyear) at the same price it was assessed to him scribing the real estate liable to taxation, prothe previous year. The plaintiff appeared be vides that “quarries, mines and ore beds, fore said board at the time named, and was whether owned in fee or leased, shall be set fully heard, and the board added the garnet in the list separately at their present true and quarry to the plaintiff's list, assessing it at actual valuation.” It was not the purpose of $2,500, which was not more than its market this section to direct in whose name different value, and struck the same from the list of items of real estate should be listed, but to Behr & Co. Behr & Co. did not appear be- provide what items of real estate should be fore the board of relief, but the board in taxed. Construed in connection with section formed the plaintiff that Behr & Co. had no 2299, this language means that quarries, tified them by letter that, if the quarry was mines, and ore beds shall be placed in the list listed against them, they would not pay the in the name of the record owner thereof, as tax.

separate items of real estate, whether severThe principal question raised by the plain- ed, or not, from the surface by a conveyance tiff's appeal from the board of relief is wheth to another of such quarries and mines only. er in the year 1901 the garnet quarry or mine, It is the quarries and mines which are to be upon the land described in the leases above listed, and not an estate for years in quarries named, should have been listed as the prop and mines, separate from the freehold estate erty of the plaintiff, or as the property of in them. The value at which they are to be Behr & Co. Section 2299 of the General Stat listed is that of the quarries and mines themutes of 1902 provides that “any interest in selves, and not the value of an estate in them real estate listed for taxation shall be set by for years. Clearly, it was not intended that the assessors in the list of the party in whose the owl : of an estate in them for years, for name the title to such interest stands on the however brief a term, should be liable to be land records of the town in which such real taxed for the full value of such quarries or estate is situated." This section is part of mines, however great that value might be; an act passed in 1887 entitled "An act con nor is there any provision that quarries and cerning the taxation and record of title of mines shall be placed in the lists of both the real estate." Pub. Acts 1887, p. 749, c. 127. owner and lessee for years, at separate valuIt is not a provision for the listing or taxation ations of their respective interests in them. of personal property. It means that any sep The quarries or mines in question were therearately taxable interest in real estate shall be fore not properly taxable as the property of set in the list in the name of the owner of Behr & Co., unless, upon the delivery to record of such interest. An estate for years in Phillips of the leases referred to, he immeland is a mere chattel interest. Goodwin V. diately became the owner of the unmined garGoodwin, 33 Conn. 314, 318; Flannery v. Rohr nets beneath the surface of the land describmayer, 49 Copn. 27, 28. Such an interest, un ed in those instruments. less otherwise provided by statute, is generally "Though minerals undisturbed, or in place, not taxable separately from the freehold, al are a part of the freehold, and, as such. though there may be exceptional cases where usually belong to the owner of the soil, they an interest in real estate, conveyed by an in are capable of separate ownership and disstrument in the form of a lease for a term of tinct possession. When there is such a seyyears, may for certain purposes be regarded erance of estates, the minerals are real esas a fee, as in the case of Brainard v. Col tate, constituting a separate corporeal here

ditament, capable of distinct inheritance and Iron Co. v. Henderson Iron Co., 107 Mass. conveyance," and to the methods of trans 230; Smith v. Cooley, 65 Cal. 46, 2 Pac. 880; ferring which the general rules regarding Kamphouse v. Gaffner, 73 Ill. 453; Boone v. conveyances of real estate ordinarily apply. Stover, 66 Mo. 430; Silsby v. Trotter, 29 N. The owner of land may therefore convey the J. Eq. 228; Baker v. Hart, 123 N. Y. 470, surface or soil in fee, reserving or excepting 25 N. E. 948, 12 L. R. A. 60; Gillett v. Treeither an estate in the minerals, or a right to ganza, 6 Wis. 343; Gaston v. Plum, 14 Conn. mine them; he may convey an estate in fee 344. in the minerals separate from the soil; or, The weigbt of authority clearly is that an while retaining in himself the property in the instrument which purports to convey cerminerals until removed and in possession of tain land at a fixed rent, for a term of years, the grantee, he may either grant the right or for the purpose of mining, or with the privprivilege to mine for them, or may lease for a ilege of mining during the term, or which term of years the land itself, together with grants merely the right or privilege to mine the privilege of mining during the term. for a term of years upon described land, conBarringer & Adams on the Law of Mines &

veys no greater estate in the land or the min. Mining, p. 35; Adams v. Briggs Iron Co., 7 erals in place than a chattel interest. BarCush. 361, 366; Caldwell v. Fulton, 31 Pa. ringer & Adams on Law of Mines & Mining, 475, 72 Am. Dec. 760; Manning v. Frazier, p. 51; Austin v. Huntsville Coal & Mining 96 Ill. 279; Wardell v. Watson, 93 Mo. 107, 5 Co., 72 Mo. 535, 37 Am. Rep. 446; Genet v. S. W. 603; Hartford & Salisbury Iron Co. v. D. & H. Canal Co., 136 N. Y. 593, 32 N. E. Miller, 41 Conn. 112, 129.

851; Knight v. Coal Co., 47 Ind. 105, 17 Am. The instruments by which these several es. Rep. 692; Massot v. Moses, 3 S. C. 168, 16 tates or interests in minerals are created are Am. Rep. 697; Cowan v. Radford Iron Co., frequently, without distinction, called “min 83 Va. 547, 3 S. E. 120; Duke v. Hague, 107 ing leases," and the numerous decisions as to Pa. 57: Brown v. Beecher, 120 Pa. 590, 15 the respective titles conveyed by them are Atl. 608; Ganter V. Atkinson, 35 Wis. 48; not entirely harmonious. Their legal effect is Denniston v. Haddock, 200 Pa. 426, 50 Atl. to be determined not so much by the name 197. In the case last cited, which was degiven to them, or the technical terms em- cided in 1901, Mitchell, J., in speaking of ployed in them, as by ascertaining from the some of the earlier Pennsylvania decisions, entire language of each instrument the real says that “the expression that a conveyance intention of the parties, by applying to it the of coal in place, even by a lease for a limited ordinary rules governing the construction of term, is a sale, is inaccurate as a general written conveyances. When it clearly ap proposition of law, and unfortunate from its pears from the language of the instrument tendency to mislead," and that “the rules apthat it was: intended to convey at a fixed plicable to sales are not to be applied indisprice the whole or a specified part of the criminately to such instruments, but each is unmined minerals in a described tract of to be construed, like any other contract, by land, it is generally held that an absolute its own terms." A collection of cases reownership in fee of such minerals in place garding questions of title to minerals under vests in the grantee immediately upon the conveyances of different characters may be delivery of the conveyance, and in some cas found in chapter 2 of Barringer & Adams, es-particularly in Pennsylvania—it has been above. cited. so held when the conveyances took the form Examining the two leases before us, we of leases for a term of years. Chester Co. v. find that they do not, in terms, convey either Lucas, 112 Mass. 424; Hobart v. Murray, 54 the whole or any specified part of the minMo. App. 249; Edwards v. McClurg, 39 Ohio erals in or under the described land. Each St. 41; Hope's Appeal, 29 Wkly. Notes Cas. instrument expressly leases to Phillips, his 365; Sanderson v. Scranton, 105 Pa. 469; heirs and assigns, for the term of 40 years, Montooth v. Gamble, 123 Pa. 240, 16 Atl. a described tract of land, "for the purpose of 594; Lillibridge y. Lackawanna Coal Co., mining garnets thereon, with all the rights 143 Pa, 293, 22 Atl. 1035, 13 L. R. A. 627, pertaining thereto, such as the right to mine 24 Am. St. Rep. 514; Kingsley v. Hillside for said garnet or the mineral product conCoal & I. Co., 144 Pa. 613, 23 Atl. 230; La tained in said property, with privilege to zarus' Est., 145 Pa. 1, 23 Atl. 372; Plummer cart and carry away such garnet and product y. Hillside Coal & I. Co., 160 Pa. 483, 28 Atl. from said lot, with right of way to and 853.

from.” For said purpose the lessee is given Instruments which only give a right or the right to erect buildings and machinery, privilege of entering upon land for the pur and to remove them at pleasure. He is to pose of mining and removing the minerals pay a certain rent semiannually, and also a therefrom are held to convey no title to or royalty of $2 per ton, payable monthly, upon property in the minerals themselves while in all garnets "so mined and taken from said the ground, and to create no greater interest property." After the second year the lessee in land, even though that interest be real may terminate the lease by the payment of estate, than an incorporeal right to mine, $300. “If the rent of said property is not with a title in the minerals after they have paid when due then and in such case the been removed by the grantee. Stockbridge property shall revert to the party of the first

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part" (the plaintiff), and the instrument is to ed by section 2346 as will render its action
become null and void. The leases are ex in adding the garnet quarry to the plaintiff's
ecuted as deeds by both parties, and record list void. Nor is the validity of the act of
ed. By these provisions the lessee does not the board of relief in adding the garnet
pay any sum for the garnets in place, but quarry to the plaintiff's list affected by the
pays a fixed annual rent for the property, fact that it was also erased from the list of
whether be mines the garnets or not, with Behr & Co., although they did not appear
the right to remove the minerals only during before the board as provided by section 2348.
the term, which may be forfeited for non Iyes v. Goshen, 65 Conn. 456, 460, 32 Atl. 932.
payment of rent or terminated by the lessee, As it appears from the leases themselves
after two years. No quarries or mines were that the plaintiff was the owner of the quar-
conveyed, for none existed when the leases ry in question, he could not have been in-
were executed. It is not claimed that the jured by the evidence, admitted against his
lessee took any greater interest in the land, objection, that he listed it as his own in 1899
apart from the minerals, than an estate for and 1890.
years. In so far as these instruments con There is no error. The other Judges con-
vey an interest in land, they are either curred.
grants of an incorporeal right to mine for a
term of years, the title to the minerals to

(4 Pen. 255)
vest in the grantee only after they have been
removed by him, or they are leases of the

ARMSTRONG V. LITTLE. described land for a term of years, with the

(Superior Court of Delaware. New Castle. added right of mining during the term of the

Feb. 16, 1903.) lease. In either case the interest of the

ASSAULT AND BATTERY-DEFINITION-PROVO

CATION-RESISTANCE-DAMAGES-WITgrantee or lessee in either the land or min

NESSES-CREDIBILITY. erals is but a chattel interest, and when cre 1. An assault is an unlawful attempt to do ated by contract, as this was, it is not such

violence to the person of another, and a batan interest in land as, under our statutes, is

tery is the unlawful commission of such vio

lence. taxable as the property of Behr & Co. It 2. Offensive or insulting words cannot justify does not appear that any of the buildings

an assault and battery. erected for mining purposes under said leas

3. When one is assaulted, it is his duty to

escape the danger if he can without risk; but, es were placed in the plaintiff's list.

if he cannot, he may use such force as is necA second defense to this action alleges, in essary to repel the attack. substance, that the board of relief was jus

4. The resistance or retaliation of a person

assaulted and unable to escape must not be tified in increasing by $2,500 the value of

excessive or out of proportion to the provocation the land listed by the plaintiff. In sustain or dạnger threatened, and, if it is so, the party ing the plaintiff's demurrer to this defense is guilty of an unlawful assault. at a prior session, the court appears to have

5. In a civil action for assault and battery,

nominal damages may be awarded where plaiuheld it insufficient only because it appeared tiff's injuries are so trivial as not to justify of record that the board of relief did not so compensatory damages. increase the valuation of plaintiff's land, but

6. In judging of the weight and credibility of added thereto the garnet quarry. This was

testimony, the jury should consider the char

acter, intelligence, opportunity of knowledge, not an adjudication of any question after and interest of the witnesses, as well as eviwards decided by the trial court.

dence concerning their general reputation for The voluntary appearance of the plaintiff

truth and veracity. before the board of relief, where, without ob

Action of trespass vi et armis by Robert jection to the notice he had received, he was

Armstrong against George Washington Little. fully heard upon the merits of the matter in

Verdict for plaintiff. question, obviated any defect in the notice

Argued before LORE, C. J., and SPRU. required by statute, and all evidence tending

ANCE and GRUBB, JJ. to show that the plaintiff was inconvenienced Horace G. Eastburn, for plaintiff. J. Harby reason of the shortness of the notice was vey Whiteman, for defendant. properly rejected. People v. Sherman, 83 Ill. 165; Hale v. People, 87 III. 72.

SPRUANCE, J. (charging jury). This is The complaint alleges, in substance, that an action of trespass brought for the recorthe board of relief gave no other notice or

ery of damages for an assault and battery announcement of its decision than by return

alleged to have been committed by the de. ing to the town clerk's office on the 28th of

fendant upon the plaintiff. An assault is an February, 1902, the book prepared by the unlawful attempt to do violence to the perassessors as the abstract of the list of tax

son of another, and a battery is the unlawpayers, with the certificate of the board of

ful commission of such violence. Mere relief attached thereto, stating that the alter

words, however offensive or insulting, canations, additions, and deductions made by

not justify an assault and battery. When the board were as appeared in said book. one is assaulted, it is his duty to retire beWe know of no statute which makes such a

yond the reach of danger, if he can do so return or announcement of its decision such without the risk of injury; but, if he can. a failure by the board to complete its duties

2. See Assault and Battery, vol. 4, Cent. Dig. by the fourth Monday of February as requir- 1 g 10.

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not justify you in mitigating or reducing the de

not do so, without exposing himself to the

(4 Pen. 272) threatened violence of his adversary, he may MCALLISTER v. PEOPLE'S RY. CO. use such force as may be sufficient to repel

(Superior Court of Delaware. New Castle. the attack upon him, but such resistance

Feb. 27, 1903.) must be no more than is necessary to pro

CARRIERS-STREET RAILROADS-INJURIES TO tect himself from bodily harm. If his re PASSENGERS - MOTIVE POWER-CARE REsistance or retaliation be excessive, or out of

QUIRED - NEGLIGENCE - ACTIONS ISSUES

AND PROOF-DAMAGES. proportion to the provocation or the danger

1. The degree of care required of a carrier threatened, it will not be justifiable, but will to be exercised for the safety of passengers be an unlawful assault.

is the same whether the motive power is steam The plaintiff claims only compensatory

or electricity.

2. A carrier is required to use the highest damages, and expressly disclaims any right degree of care and diligence reasonably, practo exemplary or punitive damages. If, there ticable in securing their safety by keeping its fore, you should find that the defendant com

cars and appliances in a safe condition and at

all times under the control and management of mitted an unlawful assault upon the plain

skilled and competent serrauts. tiff, you should find a verdict in his favor 3. Where, in an action for injuries alleged for such sum, and no more, as will reason to have resulted from a collision on a street ably compensate him for his injuries occa

railway, the declaration averred that plaintiff

was thrown from his seat to the ground by the sioned by such assault, having regard to his

force of the collision, proof that plaintiff jumpsuffering and loss in the past, and the fu ed from the car on which he was riding, and ture, if his injuries are permanent, his in

was injured, in his endeavor to escape the ability to labor, loss of time, and actual ex

danger of the collision, would not justify a

recovery. penses incurred by reason thereof.

4. In an action for injuries by reason of a If you should find that the alleged unlaw. street car collision, evidence that the motorman ful assault and battery was committed by

lost control of the colliding car by reason of

the fact that a snap switch on the rear of the the defendant under the immediate influence

car was closed when it should have been open, of the passion provoked by insulting and of was inadmissible under the declaration charging fensive language of the plaintiff, this would 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 language you may find that the plaintiff reason of its being closed, the air brake therewould be entitled to recover.

on failed to act effectually, which resulted in a if you shall conclude from the evidence

collision, the failure of defendant's employés

to discover that the switch was closed, and that the alleged personal injuries of the opeu the same, constituted negligence. plaintiff were not occasioned by an unlawful 6. A passenger injured by a carrier's negliassault of the defendant, but were occasioned

gence is entitled to recover reasonable compen

sation for his injuries sustained, including pain by the carelessness or misadventure of the

and suffering, impaired capacity to labor since plaintiff, you should not regard such injuries the accident, and his probable loss of time in the assessment of the damages to be and labor in the future, resulting from his inawarded to the plaintiff.

juries; and, if the injuries are permanent iu

character, he is also entitled to recover for any If you shall find that the defendant did

impairment of earning capacity in the future. coinmit an unlawful assault upon the plain

Action by John B. McAllister against the tiff, but that the injuries to the plaintiff from

People's Railway Company. Judgment for such assault were so trivial as not to war

plaintiff. rant you in awarding him damages as com

Argued before LORE, C. J., and SPRUpensation therefor, you may find a verdict

ANCE and BOYCE, JJ. for the plaintiff for a nominal sum only. Where the evidence is conflicting, you

J. Harvey Whiteman, Henry C. Conrad, should reconcile it so far as it is possible;

and Daniel O. Hastings, for plaintiff. Wilbut, where you cannot do so, you should

liam S. Hilles, for defendant. reject that which appears to be unworthy of credit, and accept that which you deem re

BOYCE, J. (charging jury). This action liable.

was brought by the plaintiff to recover damIn your examination of the testimony of

ages for personal injuries alleged to have

been sustained by him by reason of the negwitnesses, you should have regard to their

ligence of the defendant company. It is character, intelligence, opportunity of knowledge, interest, and all other facts before you

claimed by the plaintiff that he was, on the

30th day of May, 1901, a passenger on car which may aid you in reaching a proper con

No. 12 of the defendant company, which was clusion as to the credit to which they are entitled. In considering the weight to be given

then being propelled by electricity, in a west

erly direction, along the track of the defendto the testimony of a witness, you should

ant, on Sixth street, in this city; that at have regard to the evidence before you as to

the same time cars Nos. 16 and 5 of the dehis general reputation for truth and veracity. Your verdict should be for that party in

fendant company, and in the order mentionwhose favor is the preponderance or weight ed, were running along the same track, in of the evidence,

an opposite direction, towards car No. 12;

that the defendant company carelessly and Verdict for plaintiff for $25.

T 2. See Carriers, vol. 9, Cent. Dig. $ 1087.

negligently used and operated car No. 5, in that they use reasonable care in operating that the circuit breaker, the air brake, and the cars so as to avoid danger; and to do hand or ratchet brake attached thereto, were all and every the things with respect to these defective; that the car so equipped was care matters that may be reasonably necessary to lessly and negligently operated by an unfit, secure the safe transportation of its passencareless, and incompetent servant as motor gers. Maxwell v. Wil. City Ry. Co., 1 Marv. man; that by reason of the defective brakes 199 (206), 40 Atl. 945. In the case of Flinn and the incompetency of the motorman, the v. P., W. & B. R. R. Co., 1 Houst. 469 (499), latter lost control of the car while descend this court said: “Common carriers of pasing a steep grade between Broome and Mad- | sengers are responsible for any negligence ison streets intersecting Sixth street; that resulting in injury to them, and are required the car so managed collided with car No. 16, in the preparation, conduct, and management driving the latter car with great force against of their means of conveyance to exercise car No. 12, upon which the plaintiff was every degree of care, diligence, and skill which riding, between Madison aud Monroe streets; a reasonable man would use under such and that the plaintiff was thereby thrown circumstances. This obligation is imposed out of the car upon the ground with great on them as a public duty, and by their conforce, whereby he sustained great and perma tract to carry safely, as far as human care nent bodily injuries. The plaintiff further and foresight will reasonably admit. A railalleges that he was, at the time of the acci road company, using as it does the powerful dent, in the exercise of due care and caution. and dangerous agency of steam, is bound

The defendant company, on the other hand, to provide skillful and careful servants, comwhile admitting that car No. 5 collided with petent in every respect for the posts they car No. 16, which in turn collided with car are appointed to fill in their service; and is No. 12, denies having previous knowledge of responsible not only for their possession of the alleged defects in car No. 5, and of the such care and skill, but also for the continalleged incompetency of the motorman in ued application of these qualities at all charge of the car; and clains that at the times." The degree of care required in these time of the accident the car was nearly new, matters is the same whether the motive powand was equipped with the best and safest er be steam or electricity. A common car. appliances, and was operated by skillful and rier is not an insurer of the safety of its competent servants; that tbeir servants ex passengers, but it is required to exercise the ercised due care and diligence in attempting highest degree of care and diligence that is to avoid the collision, and that the accident reasonably practicable in securing their safewas not due to any neglect or fault on the ty by keeping its cars and appliances in a part of the defendant company, or any of its safe condition, and at all times under the servants; that shortly before and after the control and management of skilled and comaccident the circuit breaker, air brake, and petent servants. There is at the same time hand or ratchet brake were in good condi a duty resting upon the passenger to act tion; that the defendant was not thrown out with prudence, and to use the means providof the car by reason of the collision, but ed for his safe transportation with reasonthat he jumped from the car while it was in able circumspection and care, and, if his motion, and before the collision; and that negligent act contributes to bring about the inthe plaintiff has not sustained any permanent jury of which he complains, he cannot reinjury by reason of the accident complained cover. Betts v. Wil. City Ry. Co., 3 Penne. of.

will, - 53 Atl. 358. It is admitted that the defendant company Evidence that the plaintiff, to escape the is a common carrier, engaged in the business danger of a collision between cars Nos. 16 of conveying passengers over and along its and 12, jumped from the car upon which he roadway, and that the plaintiff was right was riding, will not support any count confully a passenger on car No. 12, immediately tained in the plaintiff's declaration, it being preceding the time of the accident.

arerred in some of the counts therein to the The gist of an action for personal injuries effect that he was thrown from his seat; in is negligence. Negligence is never presumed; others, that he was thrown out of the car it must be proved. It is therefore incum upon the ground. Higgins V. Mayor and bent upon the plaintiff in this action to Council of Wil., 3 Pennewill, 51 Atl. 1. satisfy you by a preponderance of the evi The plaintiff has failed to make any allegadence that the accident complained of was tion that he received any injury by jumping the result of the negligent conduct and man from the car, or that he did in fact jump agement on the part of the defendant com from the car, and there is no count in the pany; and, if the plaintiff has failed to so declaration which would support the proof, prove the negligence of the company, he can if there be any, that the plaintiff jumped not recover. The law imposes upon common from the car. If, therefore, you find that carriers of passengers the duty of provide the plaintiff received no injury except by ing safe cars, machinery, and appliances, jumping from the car, and that whatever inand of keeping them in good repair and safe jury he did receive was occasioned by jumpcondition; and of providing competent and ing from the car, he cannot recover, careful motormen and servants, and to see Evidence to the effect that the motorman

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