Offerman v. Starr

Gibson, C. J.

— The principal question was fully discussed and well decided in Earle v. Hall, 2 Metcalf, R. 353, and nothing is contested here except its application to the matter in hand. It is conceded that if the defendant’s agreement with Hill is a lease, the maxim of respondeat superior is inapplicable to it; but it is contended that the thing granted is not the mine, but a license to work it. The words are : “ The said party, of the first part, for and in consideration of the rents and covenants hereinafter mentioned, to be paid and performed on the part of the said party of the second part, hath demised, leased, and let, unto the said party of the second part, the right to mine and take away coal from the Salem Vein, &c.,” and a distinction is attempted between a grant of license to work a mine, and a grant of the mine itself; which, however, if a distinction at all, is a very thin one. A right to use a mine necessarily implies a right to possess it; and a grant of the use and possession, in consideration of something .to be rendered, is exactly what constitutes a lease of the thing to be possessed. But what would have been the difference had it been a license in terms ? Respondeat superior is inapplicable to an owner of land, for acts of negligence in a business not conducted by him and for his account. What had these defendants to do with the direction of the business or the coal when it was mined ? Lewis covenanted to sink the slope, erect the engine, to take out a certain number of tons each year, according to the most approved method of mining, and carry it to the landing; and to pay a certain sum per ton for it. So far the defendants had nothing to do with the business, but to receive their rent. But they reserved a right to visit and examine the manner in which the business should be carried on in the mine; and to resume the possession should the tenant refuse to furnish statements of the amount taken out, or pay the rent. These clauses do not constitute a reservation of the possession or a right to interfere with the direction of the business. The right of visit was to enable them to see whether the tenant was performing his engagements, in order to found process against him if he were breaking them; and the right to resume the possession was to put an end to the business altogether. The lease was analogous in all respects to the lease of a farm with á clause of re-entry for bad farming, or non-payment of rent. On no principle, then, could the acts of Lewis be imputed to his lessors.

Judgment reversed.