hicles of various kinds, and as the necessary guy ropes which extended into the street must be fastened where they were in danger of collision with a passing vehicle, if unobserved in the darkness by the driver of the vehicle, it was the duty of the defendant to take such precautions against injury to his employés as to render the place of their work reasonably safe. The court charged upon the duty of the defendant as follows:

"Did the defendants fulfill their duty, which was to provide what was reasonably safe and proper by way of precaution from such a thing as this mail wagon, or anything of that sort, coming along? If they did,-did everything that was reasonable in that behalf,-you may return a verdict for the defendants, because, if they did, that is enough. That is all they were required to do."

The defendant insists that the rule of law which directs the master to provide his servant "with a reasonably safe place to work in, having reference to the character of the employment in which the servant is engaged" (Railroad Co. v. Peterson, 162 U. S. 346, 353, 16 Sup. Ct. 843, 40 L. Ed. 944), is inapplicable, because the street was a safe place, and the rule as to safe places does not apply when the place originally furnished is safe, and becomes unsafe in the progress of the work, or because of the manner in which the work is done. The argument rests upon the incorrect assumption that the place originally furnished was safe. The place was an avenue extensively used for travel, in which a substantial shed was to be erected at night by the use of derricks secured by ropes stretching somewhere in the avenue. It was eminently unsafe unless protected either by danger signals or watchmen. It is said, however, that when the workmen began work sufficient appliances in the way of lamps were furnished, and that it became unsafe by the way in which the work was done. This subject was considered by this court in Baird v. Reilly, 35 C. C. A. 78, 92 Fed. 884, in which, after saying that an employer cannot escape responsibility for injuries to an employé by alleged failure to make the working place reasonably safe, by proof that he had furnished a competent foreman with necessary appliances and needful instructions, the court said:

"When, however, it appears that the working place originally, and when the employé was sent to do the work there, was reasonably safe, but became unsafe at the particular time of the accident by causes that could not have been anticipated, by exigencies created in carrying on the details of the work, or by the neglect of a fellow servant, a different rule is applicable."

The facts of the case do not bring it within the exceptions. The place could not be reasonably safe when the workmen began their night's work unless an adequate system was adopted for their protection against dangers which were easily to be anticipated; neither did danger spring out of sudden exigencies, or sudden neglect or mistake of a foreman or workman. The negligence, if it existed, arose from the insufficiency of the means for the protection of the workmen which were originally adopted. Mather v. Rillston, 156 U. S. 391, 15 Sup. Ct. 464, 39 L. Ed. 464.

The defendant's assignments of error seek to introduce into the case the doctrine of nonliability for an injury caused by a co-servant, and it is urged that the danger was created by the workmen

themselves; for it did not appear that there was a necessity for tying the guy lines on the other side of the street, and that occasion for warning or signals arose only in consequence of the act of the men in thus extending the ropes. The defect in the argument is a continuance of the omission to recognize the ordinary necessity for the protection of the employés, and that the absolute duty of the master to provide a safe place is not avoided by the neglect of his representative or servants to do the things which will obviously prevent the known original danger. Howard v. Railway Co. (C. C.) 26 Fed. 837; Railroad Co. v. Peterson, supra. In regard to the fact of the insufficiency of the means of protection, competent testimony was introduced to show that the usual practice with respect to guarding obstructions at night in the street where men are at work is to place red lamps upon the obstructions, or to employ a watchman for the purpose of warning against the danger. Baird v. Reilly, supra. The defendant had provided four red lanterns. Two of these had been broken before the night of the accident, and the other two were on that night placed one upon each end of the beam on the street which has been spoken of, but there were none upon the guys of the injured derrick. There was also testimony upon the part of the plaintiff that no person had been specially designated as a watchman to give warning to drivers of vehicles, and upon the part of the defendant that the foreman and another person attended to this service in addition to their other duties. The conflict of evidence on the subject was sufficient to compel the submission of the question to the jury.

The subject which is contained in the defendant's assignment of error that the plaintiff assumed the risk of his position and of the conditions as they existed was fully considered in Railway Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188, and it is sufficient to say that the plaintiff did not assume the risk of the employer's neglect to furnish a reasonably safe system of protection against the danger from injury by passing vehicles, and that there is no adequate evidence that he continued to remain at work with the knowledge of the insufficiency of the protection which was actually furnished. The judgment is affirmed, with costs.

(99 Fed. 683.)

PHELPS v. CHURCH OF OUR LADY HELP OF CHRISTIANS.
(Circuit Court of Appeals, Third Circuit. January 30, 1900.)

No. 24.

1. VENUE-ACTION TO RECOVER VALUE OF STONE TAKEN FROM LAND.

One holding a right of property in the stone and other valuable substances contained in land in New York may sue in New Jersey a trespasser who quarries stone from such land, and removes it to New Jersey, and there converts it, to recover the value of the stone.

2. ACTIONS-WAIVER OF TORT.

Where a trespasser has quarried and removed stone belonging to plaintiff, the latter can waive the tort, and sue in assumpsit, especially where

the trespasser has not only actually applied the stone to his own beneficial use, but has so used the stone that it cannot be reclaimed. 3. ASSUMPSIT QUESTIONS Considered-Title TO LANDS.

Defendant entered on and quarried stone from land which plaintiff had leased of a third person for such purpose, and plaintiff brought assumpsit to recover the value of the stone. Plaintiff was in possession by virtue of a judgment in forcible entry and detainer against defendant, when the action was brought, and has since retained possession. Defendant had no evidence of title to the land, but, on the contrary, was a mere trespasser. Held that, though a question of title to land could not be tried in the action, no such question was involved.

In Error to the Circuit Court of the United States for the District of New Jersey.

Robert H. McCarter, for plaintiff in error.

David McClure, for defendant in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

ACHESON, Circuit Judge. By an indenture made November 25, 1892, between Mary Brady, party of the first part, and James W. Carpenter, Jr., and James A. Phelps, parties of the second part, the first party "demised and leased" unto the second parties, "their heirs or assigns," for the "full term of fifty years," a tract of land described by metes and bounds, "with the right to dig, mine, quarry, use, remove, appropriate, and convert, to the sole use and benefit of the said parties of the second part, their heirs and assigns, all or any marble, stone, or other valuable material or substance to be found on, in, or under said lands," and with the further right to "erect, maintain, operate, use, remodel, or remove any buildings, machinery, or other structures that the said parties of the second part may desire." The deed contains a covenant on the part of the first party for the quiet and peaceable possession and enjoyment by the second parties of the demised premises, and a covenant by the second parties to pay to the first party a royalty of 20 cents per cubic yard "for each and every yard of marble, stone, or other valuable material or substance removed or shipped from, appropriated and converted to the use and benefit of the said parties of the second part, their heirs and assigns, during the continuance of this lease." And the deed reserves to the first party "the occupancy of the present buildings, and the right to cultivate the land not occupied, used, or required for the proper prosecution of the business operations of the parties of the second part."

Manifestly, under this indenture, the parties of the second part, or their assigns, are not mere licensees, clothed simply with a right to quarry stone or other valuable substance from the land described. According to all the authorities, this deed operated to convey an estate in the land for the specified term of 50 years, and its legal effect was to pass to the parties of the second part and their assigns a right of property in the stone and other valuable substances contained in the land. Bainb. Mines (Dallas' Ed.) p. 261; Doe v. Wood, 2 Barn. & Ald. 724, 738; New Jersey Zinc Co. v. New Jersey Franklinite Co., 13 N. J. Eq. 322, 341; Gartside v. Outley, 58 Ill. 210;

Ganter v. Atkinson, 35 Wis. 48; Baker v. Hart, 123 N. Y. 470, 25 N. E. 948; Chicago & A. Oil & Mining Co. v. U. S. Petroleum Co., 57 Pa. St. 83; Appeal of Stoughton, 88 Pa. St. 198, 201; Duke v. Hague, 107 Pa. St. 57; Brown v. Beecher, 120 Pa. St. 590, 603, 15 Atl. 608. On November 28, 1892, the above-mentioned lease was duly assigned to the Oswegatchie Company, which company, on June 25, 1895, sublet unto the Metropolitan Marble Company, for the term of 20 years, the said tract of land, together with all the rights, benefits, liberties, and privileges thereto belonging, and, specifically, "the right to dig, mine, quarry, use, remove, appropriate, and convert, to the sole use and benefit" of the said sublessee, "all or any marble, stone, or other valuable material or substance to be found on, in, or under the land." Under the sublease to it, the Metropolitan Marble Company entered into possession of said land, which is situate in Lewis county, in the state of New York, and operated a stone quarry which previously had been opened thereon.

In this action of assumpsit, the receiver of the Metropolitan Marble Company seeks to recover the value of certain stone which, as he alleges and claims to have shown, was wrongfully mined from and taken out of the said quarry during his company's ownership thereof, as lessee, by one John J. Sullivan, who was acting for the defendant, and was a naked trespasser, as against the Metropolitan Marble Company; which stone was brought by the defendant to East Orange, in the state of New Jersey, and was there actually appropriated by the defendant, and used in building its church.

Now, if the true state of facts be as above alleged, it seems to us, under the authorities, that the plaintiff can maintain a personal action in this jurisdiction against the defendant to recover the value of this stone. Hoy v. Smith, 49 Barb. 360; Hughes v. United Pipe Lines, 119 N. Y. 423, 23 N. E. 1042; Lehigh Zinc & Iron Co. v. New Jersey Zinc & Iron Co., 55 N. J. Law, 350, 357, 26 Atl. 920. And we think that the plaintiff could waive the tort, and sue in assumpsit, especially in view of the fact that the defendant had not only actually applied the stone to its own beneficial use, but had so used the stone that it cannot be reclaimed. Terry v. Munger, 121 N. Y. 161, 24 N. E. 272, 8 L. R. A. 216; Dundas v. Muhlenberg's Ex'rs, 35 Pa. St. 351, 353; Halleck v. Mixer, 16 Cal. 574, 578; 2 Greenl. Ev. § 108.

The rulings of the court below did not directly contravene any of the legal principles we have discussed; but upon the conclusion of the plaintiff's case, and without any evidence having been offered by the defendant, the learned judge instructed the jury to find a verdict in favor of the defendant, on the ground that the case involved a question of title to the land from which the stone was taken, which question could not be determined in this action. Was the court justified in thus taking the case from the jury?

Now, the court of errors and appeals of New Jersey, in Lehigh Zinc & Iron Co. v. New Jersey Zinc & Iron Co., supra, after stating that the owner of land can generally maintain trover against a person who severs and converts to his own use what is part of the realty, such as ores, etc., added this qualification:

"But there is a considerable line of cases holding that if the defendant, at the time of the severance, is in adverse possession of the realty, under a bona fide claim of title, the thing severed becomes bis property, so that the owner of the land cannot maintain trover or replevin therefor, but must resort to his remedy for the possession of the land and mesne profits."

The earliest case in this line is Mather v. Ministers, 3 Serg. & R. 509, in which the supreme court of Pennsylvania ruled that trover for stone and gravel dug from land does not lie, by one who has the right of possession, against the person who has the actual adverse possession of the land and sets up title to it. From the later decision by the same court, in Harlan v. Harlan, 15 Pa. St. 507, 513, 514, it appears that the possession, to defeat such personal action, is not the occupancy of a mere intruder, but actual adverse possession, maintained under a bona fide claim of title. In Halleck v. Mixer, 16 Cal. 574, the rule is thus stated:

"The plaintiff, out of possession, cannot sue for property severed from the freehold, when the defendant is in possession of the premises from which the property was severed, holding them adversely, in good faith, and under claim and color of title. In other words, the personal action cannot be made the means of litigation determining the title to real property, as between conflicting caimants; but the rule does not exclude the proof of title on the part of the plaintiff in other cases; for it is, as we have already observed, upon such proof that the right to recover rests. It is because the plaintiff owns the premises, or has a right to their possession, that he is entitled to the chattel which is severed; and that must, of course, in the first instance, be established. A mere intruder or trespasser is in no position to raise the question of title with the owner, so as to defeat the action."

Here it appears, from the certified exemplification of the record in evidence, that James A. Phelps, as receiver of the Metropolitan Marble Company, instituted before the county judge of Lewis county, N. Y., a summary proceeding against John J. Sullivan and his associates, charging them with unlawful and forcible entry into, and unlawful and forcible detainer of, the aforesaid tract of land, which proceeding, on December 21, 1897, resulted in a judgment dispossessing Sullivan, and restoring possession to Phelps, the receiver of said company. Accordingly, and before this suit was begun, poss ssion of the land was restored to this plaintiff, who was in possession when he brought this action, and has retained possession. Moreover, upon an attentive examination of the record in this case, we fail to discover any evidence of title in the defendant or in Sullivan to the locus in quo. Sullivan appears in the light of a mere trespasser, who had been in the temporary unlawful occupancy of the premises. The case, as presented by this record, is not one of conflicting titles to the land. It will be observed that, at the time the court gave peremptory instructions against the plaintiff, the defendant had not put in any evidence whatever. We are therefore constrained to hold that, as the case then stood, those instructions were unwarranted and erroneous.

With respect to the second class of assignments of error, we content ourselves with saying that the materiality of the evidence to which these assignments relate is not clear to us. The judgment of the circuit court is reversed, and the case is remanded to that court, with direction to grant a new trial.