OuiNroN,

The plaintiff brought his action of covenant to recover the value of certain “shutes, tipples, inclines, and shops,” which *248be alleges were leased to the defendant under a covenant to return them at the expiration of the lease. The agreement, which is the basis of the action, is a formal instrument, and contains two parts; the first part a clear and unequivocal conveyance of coal with the right to mine, sometimes in common parlance called a coal lease, and the second part a technical lease of forty-three houses under certain stipulations by which the ordinary relation of landlord and tenant is created. It is not necessary to state all the details of facts covered by the evidence in this case, for an observance of the exact nature of the agreement, as above stated, would have disposed of all the questions involved in the case, and decided them under the law in favor of the plaintiff in error. That, so far as any controversy in tins case is concerned, the instrument in writing is to be taken as a sale and conveyance of the articles for which this verdict was allowed to be recovered, is settled by numerous cases from Caldwell v. Fulton, 31 Pa. 475, down to Railroad Company v. Sanderson, 109 Pa. 583.

The instrument is in terms a sale and conveyance; it is of all the coal, and is exclusive in the vendees. In Railroad v. Sanderson it was determined that it makes no difference what the parties call the instrument, whether lease or deed, or what terms they use to express the parties or the consideration paid, the whole instrument must be taken into view to ascertain the intent of the parties. If that fixes its character as a sale or conveyance it must so stand. In the instrument in question, a coal plant with the coal to be mined was sold and conveyed. Specifically, the agreement sold and conveyed houses, a blacksmith shop, shutes, drums, and an almost exhaustive mention of appurtenances necessarily connected with the mining and transportation of coal. In this part of the agreement there was no covenant to repair, nor to return anything whatever. There was the right granted to remove iron, “&c,” shutes, “&c,” and the provision that they shall not take down or remove any of the houses, shops or other buildings. This provision is after the technical leasing of the forty-three houses above referred to, but if it be taken to be part of the conveyance, it would only apply to the single blacksmith shop mentioned in the evidence, and which had, under the undisputed evidence, been so long in use and become so decayed and dilapidated that its removal *249was a work of necessity for the purposes of safety to those who came near it. It was of so little value that the maxim, de minimis non curat lex, would apply under the circumstances of this case. It would be unnecessary to mention this, but the counsel for the plaintiff has placed its connection with the property sold as if controlling the disposition of the latter, and the court below, taking the covenants relating to the forty-three houses as applying to the conveyance of the coal and the machinery necessarily connected therewith, has treated the whole instrument throughout as technically only a lease. In this there is manifest error.

In regard to the incline and the tipple, the evidence shows they were an independent structure of great value, originally erected by the defendants themselves to enable them to carry out their covenants in the conveyance; that they took the place of a temporary or inadequate shuté or dump which had been destroyed. It is very doubtful if it would not be a fixture under a mere leasehold interest which the tenant has the right to remove, either without express right or under such terms as are contained within the clauses of this agreement which are of the nature of a lease. Be this as it may, an examination of the entire testimony in the record shows that the plaintiff had no cause of action, and the first point of the defendant’s counsel should have been unqualifiedly affirmed. The learned judge seems to have refused the point for the reason that it would have left no duty for the jury to perform. This is always true where the whole burden of the case under the law and the evidence is upon the court. The court did more explicitly answer the fourth point of the defendant which probably contains the reasons not expressed in the answer to the first point, but, as we have seen already, the error of confusing the clauses for a lease of the houses with an actual conveyance of the coal and property in question, runs through the answer, as it does the charge of the court to the jury.-

The judgment in this case is reversed.