signification cannot be allowed to defeat the contrary intention of the parties, if that intention be manifest from the whole contract. Thus the words demise, lease, let, lessors and lessees, and like words specially appropriate to a contract between the owner and tenant for years, have no bearing if the contract is, in fact, not a lease of the coal in place. Coal Co. vs. Wright, 177 Pa., 387 (1896).

And no reason is perceived why the same rule should not apply equally to oil and gas leases. leases. As to "Words and Phrases," see this chapter, infra.

Sec. 68. Assignability of a License.

The court, in Dark vs. Johnston, supra, says:

"A license is a personal privilege and not assignable; an assignment by a licensee determines his right. Though a licensor may be estopped from recalling the privilege granted, the licensee may destroy it. He may abandon or release. He cannot substitute another to his right."

The court mentions the fact, however, that the license was given to the licensee "and not to his assigns."

Sec. 69.

The lessee under an oil lease who has exclusive possession of the land for the purpose of searching for, producing, storing and transporting oil has more than a mere license in the land. Kitchen vs. Smith, 101 Pa., 452 (1882).

But the distinction between leases and licenses, while of interest in other forms of mining, is not now of sufficient importance to require further elaboration here, the acquisition of title by license to oil property

being at the present time practically obsolete in Pennsylvania, though asserted to exist under that name in Ohio, to the decisions of which State proper attention will be given later.

COVENANTS.

Sec. 70. Covenants Running with the Land.

In equity the test by which to determine whether a covenant in a deed runs with the land is the intention of the parties; to ascertain such intention, resort must be had to the words of the covenant, read in the light of the surroundings of the parties and the subject of the grant. Landell vs. Hamilton, 175 Pa., 327 (1896).

Sec. 71.

A Covenant to Use Due Diligence Runs with the Land.

An oil lease contained a covenant by lessee to use due diligence in operating the well: Held, that it ran with the land and that the measure of damages for breach of the covenant is the value of the oil which the lessor would have received, less the cost of operating it and the value of the oil actually received. Bradford Oil Co. vs. Blair, 113 Pa., 83 (1886).

The same lease contained a covenant to continue with due diligence and without delay to prosecute the business to success or abandonment, and, if successful, to prosecute the same without interruption for the common benefit of the parties. Held, to mean that in the event of success, exploring and drilling for oil should be continued without interruption, as well as gathering and collecting the oil already struck. Ibid.

Sec. 72. And a Covenant to Pay Rent or Royalty.

Fennell vs. Guffey, 139 Pa., 341 (1891); Springer vs. Gas Co., 145 Pa., 430 (1891); Fennell vs. Guffey, 155 Pa., 38 (1893).

Sec. 73. No Implied Covenant that Land is Fit for Mining Purposes.

There is no implied contract in a lease of land that it is fit for the purpose for which it is let; neither is there any implied warranty in the lease of a mine that it contains the mineral which is supposed to be in it. In the absence of a special contract or of misrepresentation or fraud, or of the injurious or wrongful acts or omissions of the landlord, a tenant of land or unfurnished buildings cannot properly refuse to pay rent on the ground that the land was or became unfit for the purposes for which it was taken. Bamford vs. Zinc & Iron Co., 33 Fed. Rep., 677 (1887); citing Harlan vs. Lehigh Co., 35 Pa., 287; Sutton vs. Temple, 12 M. & W., 52; Minor vs. Sharon, 112 Mass., 497; Foster vs. Peyser, 9 Cush., 242.

Sec. 74.

Covenant to Pay Minimum Rent.

This case was carried to the Supreme Court of the United States (150 U. S. R., 665, 1893), and affirmed upon other grounds, one of which was the following: The owners of a mine leased it to parties upon a royalty. It was further agreed that in case the royalty should in any year fall below $1000, the lessee should pay an additional sum equal to the difference. There was also a provision for relinquishment of the lease in the event of a failure to find sufficient ores to yield such minimum payment. It was held that the lessee engaged to pay as rent in each year the royal

ties fixed in the lease; and if, in any year the royalties fell below $1000, lessees should make up the deficit, so that the latter sum should in any event be paid annually as rent.

Sec. 75. Covenants Personal between Lessor and Lessee.

A condition in an oil or gas lease, duly recorded, whereby lessees shall have a right to operate land of lessor adjoining the tract named in the lease, provided lessor elects to have said additional territory operated, is personal between the lessor and lessee. The former, not having elected to have such land operated, a bona fide purchaser from the lessor takes the same free from any right of lessee. The purchaser is bound to enquire and know only whether the lessor had elected to have the land operated according to the terms of the lease. Emerine vs. Steel, 8 Ohio C. C. R., 381 (1894).

Sec. 76. Mining Right Sometimes a Personal Privilege, if the Intention be Clear.

A testator by will provided as follows: "To my second son John, I give and bequeath the plantation he now occupies, to be enjoyed by him, his heirs and assigns forever, with free privilege of taking what coal he wants for his own use off the home plantation." When the will was made, there was an open mine on the home plantation, but none on the farm occupied by John. Held, that the privilege of taking coal from the home plantation was personal to John, and did not pass to his successors in title to the land devised to him. Coal Co. vs. Pierce, 153 Pa., 74 (1893).*

*And similar provisions for "gas for domestic use" are not unfamiliar.

Sec. 77. Exception-Reservation-Limitation.

An exception is a clause in a deed whereby the donor or lessor excepts somewhat out of that which he had granted by his deed. Always part of the thing granted and the whole of the part excepted. Anderson's Law Dictionary, in loc.

A reservation in a deed is the creation of a right or interest which had no prior existence as such, in a thing or part of a thing granted. By a reservation in a deed a new right is created in the thing granted which is reserved to the grantor. The terms "exception" and "reservation" are often used in the same sense. Though apt words of reservation be used, they will be construed as an exception, if such was the design of the parties. Ibid.

A limitation in deeds and devises marks out an interest in property: the restricted duration of an Ibid.

estate.

Sec. 78.

The subject was treated fully in the case of Whitaker vs. Brown, 46 Pa., 197 (1864). In that case there was a clause in the deed "saving and reserving" to the grantor for his own use the coal in the land, and the court held that, although these were apt words to constitute a reservation, yet they operated as an exception, "because the coal was a corporeal hereditament, in esse, at the date of the deed, part of the land itself, and, therefore, not the subject of a reservation." It left the grantor the same dominion and proprietorship over the coal as if the deed had not been made.