ties to the lease, the plaintiff is not entitled to any relief. As the fraud or mistake complained of by the plaintiff did not take place in the original making of the contract which was afterward professed to be reduced to writing by the instrument of lease, but only in the expression of the terms of the contract as embodied in that instrument, the plaintiff clearly is not entitled to an entire cancellation of the lease, or a release from the Arnolds of their right and title to the leased premises. The most that the plaintiff can claim is, not that the real contract shall be annulled, but that the instrument embodying it shall be corrected so as to express truly such real contract. The first particular in which the bill alleges that the lease in this case did not conform to the real agreement between the parties is, that the lease gives to the Arnolds the absolute right, during the term, to the exclusive possession or occupation of the premises described in it, and not the right merely of getting out or quarrying the stone on those premises. We did indeed decide, in Burr v. Spencer, 26 Conn. 159, that the terms of the lease now in question do not restrict the lessees to the right of occupying the premises for the sole purpose of getting out and quarrying the stone in the land. But in the present case it is not found that they have ever used, or claimed or intend to use, the land for any other than that purpose, nor does it appear that they have ever been requested by the plaintiff or refused to make any correction of the lease. And under these circumstances we have held that a court of equity will not, without any necessity, in the exercise of the discretion by which they will be governed in such cases, interpose in the manner here claimed: Thompsonville Scale Co. v. Osgood, 26 Conn. 16. It is furthermore decisive on this point, that it is not found that there was any mutual mistake between the parties in regard to the extent or character of the occupation which the lessees were designed to have of the leased premises. Without such mistake the plaintiff can not claim to have the lease corrected, for, if it were made to conform to his own exclusive understanding as to its terms, it would obviously vary from that of the other party, and therefore would not correspond with the agreement between them, or, in other words, with any matter upon which their minds actually met. This, of course, would be, not a correction of an agreement, but a substitution of a new one. On this ground the plaintiff is precluded from the right to have the lease corrected in this particular. For it is also found that, although the plaintiff, when he executed the lease, did not know or suspect that he was conveying any greater right or privilege than the occupancy of the land so far as it should be necessary for the purpose of quarrying the stone in it, the lessees intended to have, and understood that they were to have, the exclusive right of occupying it unrestrictedly during the term. To the claim that the lease should be corrected so that the lessees and their assigns should be expressly restricted from cutting or carrying away from the land the timber and wood growing or standing upon it, it is a sufficient answer in the first place, that it is neither alleged in the bill, nor found by the committee, that such a restriction was any part of the original agreement. But, in the second place, if it was, such an express restriction would be wholly unnecessary in order to prevent the commission of those acts, and would therefore be superfluous; for it is provided by the 281th section of the act for the regulation of civil actions (Rev. Stat., tit. 1), that "every person who, having no greater interest in real estate than an estate for years, or for life, created by the act of the parties and not by the act of the law, shall commit waste upon the premises, beyond what tenants for years or life, created by operation of law, may do, shall be liable to the party injured in an action on the case, unless he is expressly authorized by the contract under which such interest is created to do the acts complained of." As we have no doubt that under this statute the lessees of the plaintiff and their assigns would be liable, as they would clearly be if their estate had been created by operation of law, for cutting or carrying away the timber and wood growing upon the land demised, it is quite unnecessary that there should be any reformation of the lease in this respectIf any such waste should be meditated it would now be a proper ground for an injunction. It is not, however, alleged in the bill that the lessees have ever committed or meditated such waste. Indeed, it is stated that they have never claimed the right to do so; and, in regard to the defendant Burr, the allegation in the bill that he has done or threatened such. waste is expressly negatived. It is also found that all the respondents have disclaimed any right to cut or use the wood on the premises except for quarry purposes, and for those purposes their right to do so has not been questioned. This constitutes a decisive answer against the claim for a correction of the lease, and the granting of an injunction in regard to said wood and timber. It is, however, claimed by the plaintiff that he was induced to enter into the contract by the fraud of the lessees. It would be sufficient to say that no fraud, as it respects the making of the contract, is alleged in the bill. All the averments of fraud in it respect only the reducing of the contract to writing, and, as already remarked, the latter kind of fraud would be a ground only for the correction of the instrument, and not its cancellation. As therefore the bill does not state any fraud which would justify the annulling of the contract, the finding in regard to such fraud, if it would otherwise be sufficient for that purpose, should be rejected, as it is not founded on any allegations in the bill. If, however, such were not the case, we think that the report of the committee discloses no fraud, either actual or constructive, for which the lease should be annulled. All actual fraud is negatived. In regard to constructive fraud, the committee finds that there was such fraud on the part of the lessees in procuring the lease from the plaintiff, if, by the true construction of the lease, the lessees were to have the exclusive occupation of the leased premises, and were under no legal obligation to work the quarries in it at all, but were at liberty to work them or not at their option. And they report that they find such constructive fraud, in that case, from the fact that there would be a gross inadequacy of consideration for the lease, and from the relative inequality of capacity between the plaintiff and the lessees. It is generally the province of a committee to present the facts upon which the court are to decide whether fraud is constructively to be inferred, rather than to find whether such fraud exists. But, as the fraud is here found hypothetically only on the facts presented, it becomes necessary for us to decide whether, by the true construction of this lease, the lessees were bound to work the quarries, or had a discretion on the subject. We are of the opinion that, as the rent reserved in the lease was a certain fixed proportion of the price of the stone which the lessees We therefore advise that the petition be dismissed. Bill dismissed. SHAW ET AL. V. STENTON. (2 H. & N. 858. Court of Exchequer, 1858.) 1 Covenant for lessees' quiet enjoyment. Lessor working mine abov to the destruction of the demised mine. By indenture the defend ant demised to the plaintiff a coal mine for a term of years, and co▼ enanted that the lessees should hold and enjoy the mine during the ter without any molestation, interruption or disturbance whatever, of, from or by the defendant. Afterward the lessor opened a quarry of iro stone, on lands lying over the coal mine, and in the working of such quarry made holes from the strata of ironstone into the demised mine, and caused parts of its roof to fall in and the mine to be flooded, an d the working of the coal rendered impracticable: Held, that the defendant had a right to excavate the quarry, yet as the excavation had caused an interruption of the plaintiff's occupation of the demised mine the defendant was liable for a breach of his covenant for quiet enjoy ment. 1 Owens v. Wight, 1 West C. R. 541. This was a special case, stated under the 5th section of the Common Law Procedure Act, 1854, by an arbitrator to whom all the matters in dispute in the action were referred by order of a judge, made by consent. The declaration stated that by an indenture made the 1st November, A. D. 1844, between the defendant and one William Stenton, since deceased, of the one part, and George Shaw, of the other part, the defendant and W. Stenton did denise, lease, etc., unto G. Shaw, his executors, etc., all that mine, vein, bed or seam of coal of them, the defendant and W. Stenton (describing it), together with free liberty, power, and authority for G. Shaw, his executors, etc., from time to time, and at all times thereafter, to make, dig, open and sink such pit or pits, shaft or shafts, etc., as they might think necessary and requisite for the obtaining, etc., the said mine, bed, vein or seam of coal, etc.; habendum, for the term of twenty-five years, at certain rents thereby reserved. And the defendant and W. Stenton, for themselves, their heirs, executors and administrators, did covenant, etc., with G. Shaw, his executors, etc. (inter alia), that G. Shaw, his executors, etc., "should and might peaceably and quietly . have, hold, occupy, possess and enjoy, all and singular the said mine, bed, vein or seam of coal, etc., for and during the said term of twenty-five years thereby granted, without any let, suit, trouble, molestation, interruption or disturbance whatever, of, from or by them, the defendant and W. Stenton, their heirs, executors, etc., or any of them or any other person or persons whomsoever claiming or to claim, by, from, through, under or in trust for them or either of them. Averinents: that W. Stenton made his will, and being seized of an undivided moiety of the reversion of and in the demised mine, devised the same to certain trustees; that W. Stenton afterward died; that by an indenture made after his death, G. Shaw assigned to the plaintiffs all his interest in the demised premises for the residue of the term, and that the plaintiff's entered. Breaches: that the defendants excavated certain mines of ironstone lying above the demised mine and made d vers holes through the mines of ironstone into the demised. premises and thereby caused large quantities of water to flow |