supposed to have been done by the Legislature | band and wife. So far as the subject is concerned under the influence of certain corporations. this was the condition of the law in 1873 when These corporations were certainly in the minds the present Constitution was adopted. Of course of the members of the Constitutional Convention, for they are mentioned in this very section, and the Legislature is therein prohibited from favoring them with a special Statute of Limitations. The object being to fix permanently the aw relating to these injuries and rights of action by a constitutional provision, which would be beyond the power of legislative meddling, it is absurd to suppose that the framers of this provision designed to empower the Legislature, intended thereby to be restrained, to prevent its ever going into effect, simply by omitting to do any thing. William J. Baldy and John G. Freeze, for defendant in error. The sole object of the constitutional provision was to restrain the Legislature from returning to the common law rule, and taking away all right of action. The framers did not otherwise interfere with the Acts of 1851 and 1855, either as to the basis of damages, or as to the distinction between parties entitled thereto. The constitutional right of action is not additional to the one already existing. The Constitution provides that but one action shall be brought, in which all proper parties shall appear of record, but on the theory of the plaintiff in error two different actions, in different rights, can be maintained, and damages recovered twice for the same negligence. We submit that no argument can read that result into the Constitution. as this right of action was derived from legislative enactment, it might, in the same mode, be taken away. To prevent this being done a special provision was incorporated in the organic law, declaring that in cases of death resulting from injuries "the right of action shall survive, and the General Assembly shall prescribe for whose benefits such actions shall be prosecuted.” Since the adoption of the Constitution no new legislation has been enacted on this subject. It is plain, therefore, that the Act of 1856, prescribing the persons "for whose benefits such actions shall be prosecuted," is still the law. No other persons have been clothed with the right, and hence no other persons can sustain such ac tions. The present action is brought by an adminis trator to recover damages for injuries resulting in the death of the intestate. But the Legislature has not declared that such a person may maintain such an action, and hence the right to do so does not exist. The designation of the persons for whose benefit such actions shall be prosecuted is expressly referred to the action of the Legislature by the language of the Constitution. No such law has been enacted, and hence the inference is irresistible that the persons who may now exercise the right are those, and those only who could do so at the time of the adoption of the Constitution. shall declare who shall exercise the right, would be conclusive that the right itself is a limited one, to be put in force only for certain persons to be prescribed by the legislative body. Hence the inference is not warranted that the right of action is a general one to exist independently of, or without the appropriate legislation. It is argued, however, that such a right exists in the personal representative because of the provision in the Constitution that "the right of acOct. 4, 1880. THE COURT. The maxim tion shall survive." The argument submitted in Actio personalis moritur cum persona was abro- support of this position is ingenious, but, in our gated in Pennsylvania, in cases of injuries re-judgment, it is entirely fallacious. The provision sulting in death, by legislation prior to the adop-of the Constitution, coupled as it is in the same tion of the Constitution of 1873. The Act of sentence with the direction that the Legislature April 15, 1851, gave a right of action for such injuries to the personal representative of the deceased. The effect of that Act was to make the damages recovered in such actions general assets of the deceased in the hands of the representatives, and, of course, they were available to creditors in the first instance. It followed that in all cases of insolvent estates of such deceased persons, where the victim of the injury was a husband and father, the widow and children derived little or no advantage from the ac-resentatives may recover for the injuries to the tion, although they were the persons most di- person of the deceased, and other persons may rectly and severely injured. Hence it was that recover for the death. Unfortunately for that a change was made, and by a new Act, passed position it is not the fact that two separate and April 26, 1855, the right of action for such inju- independent rights of action are given. The ries was taken away from the personal repre- language is, "and in case of death from such sentatives of the deceased, and conferred only injuries the right of action shall survive," etc. upon parents for the loss of children, and children What right of action? Manifestly the right to for the loss of parents, and reciprocally upon hus-recover damages for the death of the person This conclusion is much strengthened by an-" other consideration of still greater force. The argument is, as it must be, that the personal rep killed. No other cause of action is created. It is one right, not two, and its very existence, as a right of action at all, is absolutely dependent upon the fact of death. For the injuries preceding the death and independently of it, no right of action is given, and hence there is none to survive. The opposing argument assumes that it exists, and upon the basis of that assumption infers the survival. But the assumption is unwarranted, and therefore the inference cannot be made. Moreover it is too plain for argument that the deceased person never had or could have a right of action in advance of his death for damages resulting only from his death, and therefore again as the right in him never existed, it could not survive to his representative. In the case of Mann v. Wieand (4 WEEKLY NOTES CASES, 6), we held that the right of action for damages from death by negligence never existed in the deceased-that it was given to and first existed in the widow, and hence the defendant was a competent witness in his own behalf in an action against him by the widow. The same principle applies here. We are of opinion that the nonsuit in the Court below was properly entered. Judgment affirmed. Opinion by GREEN, J. March 5, 1880. Koch & Balliet's Appeal. Bill in equity, by Benjamin Guth et al., heirs and administrators of Daniel A. Guth, deceased, against John Koch, Sr., Lewis B. Balliet, executor of Stephen Balliet, deceased, and Edward H. Balliet et al., heirs of said Stephen Balliet, deceased. The bill, filed March 3, 1873, alleged : (1) That on August 23, 1842, Daniel A. Guth, since deceased, entered into an agreement with Christian Pretz and others, of which the material parts were as follows: "For the consideration hereinafter mentioned the said party of the first part [Guth] hereby covenants, grants, and agrees to and with the said party of the second part, that he, the said party of the first part, will and does hereby grant, permit, and allow the said parties of the second part, their heirs, executors, administrators, and assigns, the exclusive right and privilege to open pits, sink shafts, mine, and make all necessary work for mining and for mining purposes in and upon all or any part of all that tract or parcel of land owned by said party of the first part, situate in the township of South Whitehall aforesaid for the purpose of digging and mining iron ore, and all other kinds of minerals and ores, and to mine, dig, take away from said land, sell, use, and dispose of iron ore, and all other kinds of minerals and ores. The said do as little damage to the land, wood growing thereon, and parties of the second part, their workmen and laborers, to premises, as the nature and proper prosecution of the proposed undertakings will permit. "In consideration whereof, the said parties of the second part promise and agree to give and to deliver to the said party of the first part, or to his heirs, executors, administrators, or assigns, the one-sixth part of all the iron ore, and of all other ores and minerals, which they, the said parties of the second part, their heirs, executors, administrators, or assigns, may mine, dig, or cause to be mined or dug from, in, or upon the said land, the one Equity jurisdiction-Adequate remedy at law-sixth part to be delivered at the mouth or mouths of the Mining lease reserving royalty—-Implied covenant to prosecute development-Alleged breach by stopping work-Bill in equity will not lie to compel development, or cancellation of contract, and for damages. Where a right to mine is granted in consideration of a royalty reserved, the law implies a covenant by the grantee to work the mine with diligence so that the grantor may receive the contemplated compensation; but, in the absence of special grounds of equity jurisdiction, such covenant will not be specifically enforced in equity, an action at law for damages being an adequate remedy. A. and B. covenanted that A. should have the exclusive right to mine the iron ore upon B.'s lands, and should annually pay one-sixth thereof to B., and that he should be absolutely entitled to the remaining five-sixths. After working for some years A. suspended operations, and B. brought a bill in equity, praying for a decree that defendants should proceed with the mining or deliver up the contract to be cancelled. A decree was made as prayed for, and damages were awarded: Held (reversing the decree of the Court below), that an action at law for breach of covenant would clearly lie, and that there was no jurisdiction in equity. pit or pits, free and clear of all expenses to him, the said party of the first part, his heirs and assigns. The remaining five-sixths parts of all the aforesaid ores and minerals to belong to and be the property of the said parties of the second part, their heirs, executors, administrators, and assigns. And the said party of the first part further agrees that the parties of the second part may, if they deem dation of those employed in the mines upon said land, necessary, erect one or more buildings for the accommoprovided, that if at any time the said parties of the second part, their executors, administrators, or assigns shall finally abandon the working of said mines, the said party of the first part shall have the first chance to purchase such build. ings, and if the price cannot be agreed upon, then said building or buildings shall, at the expense of the said parties of the second part, their executors, administrators, or assigns, be removed from said lands. And it is further agreed that, if limestone shall be mined or quarried upon said land by the said parties of the second part, their executors, administrators, or assigns, they may sell the same, paying one-sixth part of the proceeds of sale to said party of the first part, his heirs or assigns." (2) That on various subsequent dates the several parties of the second part had assigned and transferred to John Koch, Sr., and Stephen Balliet, deceased, their rights and privileges under the said contract. (3) That in pursuance of their Appeal from the Common Pleas of Lehigh rights under the agreement Koch & Balliet built County. and maintained extensive machinery and im Complainants filed the usual replication, and the case was referred to a Master (T. B. Metzger), before whom a large amount of testimony was taken to support the allegations of both the bill and answer. provements, sunk pits and shafts, and for thirty | other allegations not referred to, and made techyears or more mined large quantities of iron ore, nical objection to one of the parties. paying one-sixth thereof to the persons entitled, averaging about $3000 annually. (4) That on or about April 1, 1872, the respondents, without any cause, suspended, and abandoned the mining of the ore and the delivery to the complainants, and had so continued. (5) That, although repeated offers had been made, by responsible parties, to the respondents, to work and operate the said mines, on reasonable terms, all such offers had been refused, and, notwithstanding frequent requests from the complainants to resume mining operations, or surrender or rescind the contract, the respondents refused; and that the complainants were informed, and believed, that the respondents did not intend to carry out the purposes of the contract. (6) That there is on the said tract a large and valuable bed of iron ore which can be profitably worked. The complainants prayed for a decree that the respondents should "proceed to dig, mine, and raise iron and other ores and minerals upon said land, and deliver the one-sixth part thereof to" the complainants "according to the spirit and intent of the said contract or agreement, or in default thereof to cancel, rescind, and deliver up unto" the complainants "the aforesaid contract or agreement," and further relief. The Master filed a report recommending a decree dismissing the bill, upon the ground that the complainants had an adequate remedy at law. After argument upon exceptions filed by complainants, the Court referred the case again to the Master, "with instructions to entertain the complainants' bill, to consider and marshal the testimony, and report the findings of facts as required by the rules of equity practice, to determine and assess the damages, and to report a form of decree." The Master thereupon filed a second report finding that the allegations in paragraphs (1), (2), and (3) were proven: he also found that the complainants had proved a refusal to extend the lease of the Crane Iron Company, but had not proven "that the respondents neglected, refused, or were indifferent to a leasing of these same premises to parties other than the Crane Iron Company;" that the measure of damages was the price of ore per ton from November, 1872, which was from $3.50 to $4, and that the yield continued during this time about the same as it had been; but he again recommended the decree recommended in his previous report. The complainants and the defendants both excepted, and the Court (LONGAKER, P. J.) filed an opinion, in accordance with which a decree was drawn requiring the defendants within thirty days to pay to the complainants $8615.10, with interest from January 1, 1877, retaining therefor 1833 tons of ore; and that they proceed to mine and raise ore with diligence and deliver one-sixth of the proceeds to the complainants, and in case of default within five days to cancel and deliver up the agreement. From this decree the defendants appealed, assigning for error, inter alia, the overruling of their demurrer and the entry of this decree. The respondents filed a demurrer to the bill, upon the ground that the complainants had an adequate remedy at law, which demurrer was overruled by the Court. Thereupon respondents filed an answer admitting the first and second paragraphs of the bill to be substantially true, but alleging that on March 2, 1848, there was made a supplemental agreement between Daniel A. Guth and Pretz, as agent and partner of the Guth Mining Company, by which it was agreed that, as the Mining Company had built certain buildings on the land, the taxes should be divided and each pay one-half; that the company should pay Guth for the rent of the land on which the buildings stood and the gardens attached to them; and in case the ores should become exhausted or the company should at any time see fit to surrender, and it should happen that they could not agree upon the price at which Guth should take the houses, etc., a method of appraise- The jurisdiction could only have been acment should be resorted to; and the answer quired in this case under Article 6, section 2, of further alleged that this supplemental agreement the Act of 1836: "The affording specific relief was included in the transfers mentioned in para- when a recovery in damages would be an inadegraph (2) of the bill. The answer admitted the quate remedy." This does not confer universal mining and raising of ore, but denied that it equity powers; there must be no adequate had been for so long a time, or produced so large remedy at law. The chancery powers of our an annual average as alleged in the bill; it de- Courts extend only to prevent acts contrary to nied the abandonment of the mines, and alleged law, and this refusal to carry out the terms of a the recent completion of a new lease to the Beth-contract is not one of them. Equity cannot be lehem Iron Company; it denied the allegations used merely for the purpose of obtaining damof the 5th and 6th paragraphs of the bill, and all ages. John D. Stiles and Morris L. Kauffman, for appellants. Hagner v. Heyberger, 7 W. & S. 104. a To justify the cancellation of a contract requires a stronger case than is required to resist specific performance. Equity will not order an instrument to be delivered up or cancelled except in a very clear case. Brainard v. Holsaple, 4 Green (Iowa), 485. The rescission of an executed contract will not be decreed except for fraud or palpable mistake. Graham 7. Pancoast, 6 C. 89. A. Guth, of the one part, whose interest therein is now represented by the appellees, plaintiffs below, and Christian Pretz and others, parties of the second part, to whose rights, duties, and obligations the appellants succeeded by virtue of sundry assignments of the agreement. Guth, being then the owner of the land, covenanted and agreed with the "parties of the second part, their heirs, executors, administrators, and assigns, to furnish and allow them the exclusive right and privilege to dig, mine, and take away all iron ore and all other minerals which The agreement of 1842 was a grant of the coal are or may be found in or upon the land" dein place. Caldwell v. Fulton, 7 C. 480. Clement et al. v. Youngman et al., 4 Wr. 345. R. E. Wright & Son and Edward Harvey, contra. Where there is a lease of an ore mine or the grant of a right to mine ores, and the consideration of the grant or the rental reserved is a certain proportion of the ores mined, or a royalty thereon, the law implies a covenant upon the part of the lessee to work the mines with diligence and in a proper manner, so that the grantor may receive the return contemplated in the lease or grant. Sharp v. Wright, 28 Beav. 150. scribed in the agreement, "and for that purpose may tion whereof the parties of the second part coveof the first part, or to his heirs and assigns, the nanted and agreed "to deliver to the said party one-sixth part of all the iron ore and of all other ores and minerals which they mine or dig, or cause to be mined or dug in or delivered at the mouth or mouths of the pit or The said one-sixth part to be upon said land. pits free and clear of all charges and expenses to the said party of the first part," etc. "It being agreed and understood by all the parties that the remaining five-sixths part of all said ores. and minerals shall belong to and be the proBrainerd v. Arnold, 27 Conn. 617. perty of the said parties of the second part, The jurisdiction of equity attaches not only their heirs, executors, administrators, and aswhere there is no remedy at law, but where there signs." This was followed by a supplemental is not an adequate remedy, where the damages agreement made in March, 1848, by which it recovered would not be a complete compensation and the amount could not be certainly fixed, and in order to set at rest a source of constant litigation and prevent a multiplicity of suits. Bainbridge on Mines, 1st Am. ed., p. 214. Brainerd v. Arnold, 27 Conn. 617. Brightly's Eq., 247, 609. was provided that each party should pay onehalf of the taxes; that the grantees should pay a certain rent for land occupied by their houses, stables, etc.; and in case the mines should become exhausted, or the grantees should "for any other cause see fit to surrender and give up their lease of said mines;" provision is also Bank of Kentucky v. Schuylkill Bank, I Pars. 180. made for valuing and disposing of the houses, Bank v. Adams, 1 Pars. 537. And since these defendants persistently refused to work the mine, in fraud of the complainants' rights, the contract under which they claim the exercise of this right ought to be cancelled, which can only be enforced in equity. Wilson et al. v. Getty et al., 7 Sm. 266. Lippincott v. Whitmore, 3 WEEKLY NOTES, 314. May 3, 1880. THE COURT. The agreement which forms the basis of claim in this case was made in August, 1842, by and between Daniel stables, etc. The bill charges that in pursuance of the agreement the mines had been successfully worked for many years, and yielded a large income to the plaintiffs; that on or about April 1, 1872, the defendants, without any cause whatever, and in violation of the terms and spirit of the aforesaid contract and agreement, entirely ceased, suspended, and abandoned, or caused to be suspended and abandoned, the digging, mining, and raising of iron ore and other ores and minerals upon the said premises . and have persistently and without cause ever since continued their abandonment and suspension of the mining, digging, and raising of said iron ore and other minerals;" and then concludes with a prayer for a decree that the defendants shall within a reasonable time proceed to work the | covenant, and recover damages. It is there said, mines, and deliver one-sixth of the ores and "If the defendants had any excuse, legal or other minerals mined to the plaintiffs according to the spirit and intent of the agreement, or in default thereof cancel, rescind, and deliver up the contract; and for "such further relief in the premises as may seem agreeable to equity and good conscience." The equitable, from the responsibility thus assumed Assuming, then, that appellants neglected and refused to work the mines with reasonable diligence, it is very clear that the appellees had a complete and adequate remedy at law for the recovery of such damages as they may have sustained. The master very properly found that the mines had not been actually abandoned by the defend-own business and concerns, they were better ants, nor had anything been done that amounted to an abandonment. While it was shown that they had declined to extend the lease of the Crane Iron Company before it expired, and did not afterwards work the mines themselves, the master finds that immediately after the expiration of that lease, they made diligent, but unsuccessful, efforts to lease the mines for the purpose of mining. They may, and perhaps did, fail to comply with the terms of the agreement according to its true intent and meaning, but there was nothing done, or omitted to be done, that would justify a cancellation of the agreement. At most they rendered themselves liable to damages for neglect to work or cause the mines to be worked. While the rights granted are without limit as to time, and the agreement contains no express covenant as to how the mines shall be worked, or that any specified amount of ore shall be taken out, it does not follow that the appellants were at liberty to operate the mines or not as they saw fit. It was evidently the intention of the parties that they should be worked with reasonable diligence, and that would depend largely on the circumstances. The quantity and quality of the ore, and the demand that existed from time to time, would necessarily enter more or less into the question of due diligence. If the ore proved to be abundant, and of good quality, and the demand was such as to justify a vigorous prosecution of the work, the spirit of the agreement manifestly required that it should be so worked. Where a right to mine iron ore or other minerals is granted in consideration of the reservation of a certain proportion of the product to the grantor, the law implies a covenant on the part of the grantee to work the mine in a proper manner, and with reasonable diligence, so that the grantor may receive the compensation or income which both parties must have had in contemplation when the agreement was entered into. This principle appears to be recognized in Watson v. O'Hern (6 Watts, 362) and Lyon v. Miller (12 Harris, 392). In the former a lease of a stone quarry, in consideration that the lessee should pay a certain price per perch for all the stone taken out, was held to be a contract on his part that he would work the quarry, and upon his failure to do so the lessor might maintain There was no allegation of fraud, accident, or mistake in the procurement or execution of the agreement, nor was there anything alleged or shown that would justify a mandatory order on the appellants, requiring them to proceed and prosecute the work of mining within a specified time, on pain of forfeiting their rights under the agreement. Nor could it be justly claimed that by proceeding in equity a multiplicity of suits would be avoided. While the agreement remains in force, the right of action must necessarily depend on breaches of its provisions, and non constat that any will occur hereafter. The only claim that has been made, and sustained with any degree of success, is the demand for damages resulting from a breach of the agreement, and for that there was no doubt an adequate remedy at law. Where proper ground for equitable relief is laid and sustained, and jurisdiction has thus attached, courts of equity will proceed to award compensation or damages when they are incidental to such relief, but not otherwise. We think the conclusion reached by the master, in both of his reports, that the bill should be dismissed, was correct. Decree reversed and set aside, and it is now ordered and decreed that the bill be dismissed, and that the appellees pay the costs, including the costs of this appeal. Opinion by STERRETT, J. |