delivered the opinion of the court.

In our opinion, the contract between the parties gave the rock'quarried to the lessees, and they were under no obligations to account for it to their landlords. The lessees, by the contract, had a full and perfect right to do all such quarrying, grading, levelling, and make such alterations upon the demised premises, as might by them be deemed requisite and proper for carrying on and managing their business. It was found as a fact, that the quarrying done was requisite and proper to put the leased premises in good condition for the business of the lessees. We are at a loss to conceive a ground on which a contrary determination can stand. Had the rock quarried been thrown into the river — had the' lessees permitted it to be taken out of their way by others as it was quarried, can it be perceived how they would have been liable for it to their landlords ? That they did not do either of these things, but made a profit of it, cannot charge them with a liability. If a lessee takes a, *528farm at a rent, with full liberty to clear an acre of timbered land, in addition to that already cleared, can he not cut dorvn the timber and burn it up, or may he not cut it into cord wood and sell it at a profit? Would he, in either of these events, be liable to his landlord for the timber removed ? The right to quarry in the one case, and the right to remove the timber in the other, without restriction or condition, would give to the lessee the liberty of disposing of the rock in the one case and of the wood in the other at his discretion, without any liability for an account to his landlord.

The fact that the lessees did not use the place cleared for their business, by reason of a change of circumstances which rendered it unprofitable, is their misfortune, and it would be hard to convert such misfortune into a source of increased responsibility, when otherwise it would not have existed. The quarrying was done in good faith under the terms of the agreement, •and the fact that the place cleared by the lessees was not used ■by them, does not affect the landlords in any way, as they continued liable for the rent, notwithstanding they did not carry on their business.

the decree will be reversed, and ■the -bill dismissed.

I dissent from the opinion of the majority of the court in this case. In my judgment, the lessee acquired no property in the rock. His contract' was for the use, and not for an absolute interest in any part of the leased property. The use to which the lot was to be applied, (boat building,) and the permission contained in the lease to the lessees, to “do all such quarrying, grading, levelling, and make such alterations upon the lot as they might deem requisite for carrying on and managing the business of the lessees upon the premises,” did not change the character of the transaction, in reference to the stone necessarily taken up in putting the ground into a proper condition for the use intended. When the ■ lease is of a mine or a stone quarry as such, the case is differ*529ent. There, the use given by the lease consists in the privilege of taking up and disposing of these parts of the leased property, and unless this were allowed, the lessee would acquire nothing by the contract. So, too, in the lease of forestland for cultivation, as a farm in a now country, where the wood is of no value and generally burned on the ground as worthless. There may be no difficulty in implying from the transaction permission to the lessee to dispose of the wood as he pleases. Here, however, the lease is of a lot in the vicinity of the city for a boat yard, and not of a stone quarry as such, and although the lessees may take up the stone, as far as may be necessary, to prepare the lot for this purpose, and have á right to use it during the term, and if it were worthless, might safely have thrown it into the river, yet it seems to me very difficult to imply fi’om this clause in the lease a grant of the absolute property in it, if it were of any real substantial value as property, as it seems to have been, from the large profit the lessees made out of it, over and above the expense of quarrying.

Entertaining these views upon this point, which is the only one made in the case, I think the deeree ought to be affirmed.