I cannot join in the prevailing opinion for the following reasons, briefly stated: Unquestionably the owner of land may sell the minerals in place below the surface, so that the purchaser owns the same as real estate. Such divided ownership in land may be created by deed or by reservation, the grantor reserving the minerals while conveying the remaining property. It seems to me that no more effective language can be used to convey the minerals in place than a grant to another, his heirs and assigns forever, of the exclusive right to mine and remove them. (Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Reeves Real Prop. § 230.)
Hendrick conveyed the minerals in place to Spaulding for one dollar, with the agreement of the purchaser to remove them and pay fifteen cents' per ton for the same when removed. This fifteen cents per ton, the so-called royalty, was not rent for the use of real estate. There was no relation of landlord and tenant, but rather that of vendor and vendee of minerals, and the royalty was a part payment of the purchase price, to be made when the minerals were removed. The right to enter upon the premises is merely incidental to. the right to mine. It was entirely unnecessary to insert that provision in the agreement, and the construction of the agreement in other respects cannot be affected by that immaterial provision, because the right to mine carried with it the right to enter upon the premises and make proper excavations and build proper structures for the necessary purposes of mining. (Marvin v. Brewster Iron Mining Co., 55 N. Y. 538.)
*883The subsequent agreement giving to Spaulding the right to dam the creek for mining purposes was not a lease of any part of the real estate, but was a sale of that right for one dollar, and in no event did the agreement contemplate the payment of any other consideration therefor. Hendrick was undoubtedly induced to permit the damming of the creek in order to encourage the removal of minerals and thereby hasten the payments which he was to receive for what he had sold. That agreement did not change the prior relations of the parties.
By the agreement, with Roberts, Spaulding simply assigned his rights under the Hendrick grant, with the provision that in addition to the payment of fifteen cents to Hendrick he was to receive also fifteen cents for each ton of mineral when removed. Spaulding had held the Hendrick contract since 1884, and Hendrick had realized only the original dollar from it. In order to hasten the removal of the mineral, Spaulding provided a guaranteed minimum royalty, which if he did not receive, he might terminate the rights of Roberts under the agreement.
I think it is evident that Spaulding could convey no different rights to Roberts than he had received from Hendrick, and that the conveyance was intended to be of the same quality and interest. Roberts was not, therefore, a tenant or Spaulding a landlord, and there were no rents reserved for the use of real estate. The moneys to be paid were simply a part of the purchase price of the minerals, which to Hendrick was only payable as the ore was removed, but which to Spaulding was to be payable partly in advance if ore was not removed which would earn the agreed payment.
By a rule of law applicable to landlord and tenant an agreement to pay rent for the use of real estate runs with the land so that an assignee of the lease in possession of the land leased is personally charged with the payment of the rent although he has not otherwise agreed to pay the same. The rule has no relation to contracts between vendor and vendee, or other relations as to the sale or ownership or use of real or personal property. The defendants, by failure to keep Roberts’ agreement, would necessarily lose the benefits arising from it, but they did not subject themselves to personal liability. They could not remove ore from the premises with*884out payment therefor. Substantially no ore has ever been removed and while we find a clause in the second agreement with Hendrick giving the option for six months to purchase the entire real estate for $1,500, which indicates that the parties considered they were contracting merely with, reference to remote possibilities, we find a judgment here against the- defendants for $1,489.21 for the alleged use and occupation of said premises for less than four years, when nothing has been realized from them, the owner having had the entire use of them, while the other parties to the agreement have simply been prospecting, hoping to find the minerals and willing to pay the purchase price for any so found. I favor a reversal of the judgment upon the law and the facts.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.