Mr. Justice Trunkey
delivered the opinion of the court, February 17th 1879.
At the outset, the plaintiffs assume that Allen’s defence was a parol license to enter upon the land and dig clay, without limit as to time or quantity. Upon this their argument is built, fortified by numerous authorities, demonstrating that the learned judge committed a series of blunders. There is no escape from this conclusion, if it be that Allen claimed an incorporeal hereditament — a mere right to take clay — resting upon an oral promise. Therefore, we pass at once to consider the nature of the defence, as set forth in the defendants’ offer of testimony, the receiving of which is assigned for error, namely, “ that defendant Allen was a tenant of Gerritt, for these premises, prior to conveyance to plaintiffs, for over twenty years; that the fact was well known to Sheets, and that he was in possession of these lots, under his lease, with the right to dig clay, before plaintiffs bought from his landlord.”
Instead of a mere license, the defendants put forward an actual *50interest or estate in the land, a leasehold in possession of the tenant, which was known to the plaintiffs when they purchased and took title. In order to constitute a lease of mines, it is not necessary that the lessee should have an interest in the surface, for minerals may form a distinct inheritance in the lands of which they are part, and consequently an estate may be created in and restricted to any specified mineral. In the mining districts leases of lands for purposes of taking ore, coal or petroleum, are common, wherein the tenants are restricted to the use of only so much of the surface as necessary for mining purposes, with right in the lessor to use the surface as he chooses, save that he may not interfere with the rights of the lessee. Frequently the lands -are unoccupied for any purpose other than the mining, and frequently they are occupied by the lessor for agricultural or other uses. The actual possession of the tenant, carrying on his mining operations, is notice of his interest to a third person as fully as is the tenancy of a dwelling-house. And if the lease is for a term not exceeding three years, it is valid, though not in writing. A parol agreement that a person shall enter on the land of another, dig ore, erect buildings, &c., and pay fifty cents a ton for all ore removed, amounts to a lease: Moore v. Miller, 8 Barr 272. Like principles apply to a lease of land with right to quarry minerals or dig clay. The right of a tenant in possession, under such a lease, is not extinguished in favor of a purchaser who knew the fact. And when the tenant is taking the clay, the notice to third persons of his estate is marked, for the working is upon the surface. It is none the less a' lease, if the land is not enclosed or cultivated. The offer was admissible, and if the testimony established the facts as therein alleged, the defence was complete. That the evidence thereof was sufficient to submit to the jury, is not denied; nor is error assigned to its submission. Indeed Shoots himself testified that he knew Allen was Gerritt’s tenant, and had his brick-yard on the ground; that he dug clay for his bricks, and had taken about eight feet off the west lot at time of purchase, and that there was no division of the property into lots, except on paper. This matter may have been materially qualified, or explained away, by other parts of his testimony, in its application to the land he purchased. The whole testimony was for the jury. The learned judge seems to have clearly apprehended the nature of the defence, and his rulings, as set forth in the assignments of error, were entirely sound.
The plaintiffs raised and discussed some points not embraced in the assignments, upon which the court was not requested to charge, and these cannot now be considered. If error was committed, it must be shown by the record. For aught that appears, the court gave correct instructions in reference to the portions of land occupied for a highway, prior to vacation of Buck road in 1873.
Judgment afiirmed