Vinje, J.
The trial court overruled the demurrer on the ground that it appeared upon the face of the complaint that *243there was no consideration for the lease, and that it was void because both parties contracted with reference to a subject matter that did not exist, namely, the ownership by the defendant of the ores in the ground. Were the case to be disposed of on this theory, several interesting questions would arise for determination. There' is no allegation in the complaint that the relation of landlord and tenant has terminated. That being so, can the tenant question the landlord’s title? There is no allegation of an eviction by a paramount title. There is no allegation that plaintiff was compelled by a court of competent jurisdiction to pay royalties to the heirs at law of Rountree. There is no allegation of false or fraudulent .representations by defendant, and none of a mutual mistake.. The case of Bedell v. Wilder, 65 Vt. 406, 26 Atl. 589, relied upon by the court below, went partly upon the ground that the-landlord agreed to repay the rent reserved in a lease of waterpower if the tenant was obliged to pay it to a third party. He was compelled to do so by a decision of the supreme court of the state, and, as there was no other consideration for the-lease than the use of the water power, there was a total failure-of consideration, resulting, -as the court found, from a mutual mistake of the parties, and the recovery was had upon the-ground of mutual mistake, failure of consideration, and the-promise to repay.
In the case at bar the complaint shows upon its face that, there was some consideration for'the'lease, for it shows that the surface rights were in defendant and that they were included in the mining lease. The complaint alleges plaintiff began to mine in and upon the leased premises and continued to do so until on and after July 27, 1906. Eor aught the-complaint informs us, the use of the surface rights may have been an adequate consideration for the lease. It must be deemed so upon demurrer.
By the Court. — Order reversed, and cause remanded for-further proceedings according to law.