§ 1232. Renewals - The general rule. A covenant for renewal manifestly stands upon the same footing as a covenant for a lease, and will be enforcible or not, under the same rules. But provisos in a lease must not be construed as a contract of renewal. For example, where a lease to a coal company was extended for one year under the same terms and conditions as the original lease, except that the royalty should not be less than a specified sum, and where the original lease provided that if any accident should happen to the mine, or if the workmen employed therein should strike, so that the mine should not be operated, the guaranteed royalties should be reduced proportionately, it was held by the Illinois court of appeals that this provision did not apply to the contract of renewal. It is not infrequent to provide in the lease that where accidents occur, or where the mine is not operated by reason of strikes or injunction, the period of the lease will be extended correspondingly. But in general this provision will not be implied.

§ 1233. Lease construed as an entirety - General consideration supports covenant of renewal.- The federal court recently had under consideration an Ohio lease, by the terms of which there was to be a tenancy of two years and as much longer as oil and gas were found in paying quantities, not exceeding twenty-five years in all, the lease containing a provision of forfeiture if no well was bored within two years, unless the lessee paid for the further delay at the rate of a dollar an acre per year thereafter. It was contended that, even though this consideration could be held sufficient for the two years, it could not be held to support the covenant for renewal for the entire period. In denying this result and contention, and in construing the lease as providing for renewal from year to year upon payment of the

1 Harnett v. Yielding, 1 Scho. & L. 549; Carne v. Mitchell, 15 L. J. (N. S.) 287; Copper M. Co. v. Beech, 14 Beav. 78; Alleghany Co. v. Snyder, 106 Fed. Rep. 764.

2 Cons. Coal Co. v. Rainey, 69 Ill. . App. 182.

3 Stahl v. Van Vleck, 53 Ohio St. 136, 41 N. E. Rep. 35.

dollar per acre, the circuit court of appeals, speaking through Judge Day, and after laying down the familiar rule that all parts of the lease must be given effect if possible, held that this could be done only by holding that the payment of one dollar per acre each year was one of the considerations for delay in sinking the well; thus virtually holding this penalty to be, as in fact it was, dead rent merely.' This decision is not altogether in harmony with the New York case,2 which held the payment of minimum royalty, under a similar contract, insufficient. The distinction is not so marked, however, when we remember that in the New York case the lessees had, by their own acts in permitting a "squeeze" to occur, made it impossible for them, or anyone else, to work the property. In each case the contract received the construction the court thought, in the light of the action of the parties, they intended for it; and this is following the true rule.3

1234. When a perpetual renewal.- A., the owner of coal land by lease perpetual until the coal was mined out, leased the coal to B. for a royalty; afterwards, before the coal was mined out, A., B. and C. made a parol agreement by which C. was to mine the coal and pay the royalty; under this agreement C. mined coal, paying for a portion but not all of it, at the agreed rate, and it was held that he was liable to A. for the entire royalty under this oral agreement. Where a lease contained the covenant that T. would always, at any time when and as often as required by the lessees, or when their successors or assigns should request the same, demise, etc., to the lessees, their successors or assigns, respectively, all the described premises, it was held. to constitute a covenant for perpetual renewal.5

1 Alleghany Oil Co. v. Snyder, and Gillmore v. Brown (C. C. A.), 106 Fed. Rep. 764, citing (which see) Harris v. Ohio Oil Co., 57 Pa. St. 129, 50 N. E. Rep. 1129; Northwestern Ohio Gas Co. v. Tiffin, 59 Ohio St. 420, 54 N. E. Rep. 77.

2 Genet v. Delaware & H. Canal Co., 136 N. Y. 593, 32 N. E. Rep. 1078; ante, § 1202, note 1, p. 972.

3 Post, § 1281; ante, § 1112.

4 Watt v. Dininny, 141 Pa. St. 22, 21 Atl. Rep. 519.

5 Copper M. Co. v. Beach, 13 Beav.

§ 1235. Further as to forfeiture - Special circumstances Election to terminate held unnecessary.— While the general rule, as we have stated elsewhere, is that forfeiture-bearing clauses in a lease are not generally selfexecuting, yet, even in such cases as the one mentioned in a preceding section,' where there is a right of forfeiture reserved, but only upon the condition that the lessee shall perform one of two things, he is not compelled to perform both, but the performance of either will save forfeiture. He has the election to pay or to work, and he cannot refuse both. For example, a land-owner executed a gas and oil lease with the right to drill and operate wells in consideration of an agreed division of the product; the lease contained the condition that it should be void if no wells should be completed within a year, unless the lessee paid a certain agreed sum as liquidated damages for each year during which completion was delayed. It was held that omission to bore the well or pay the amount agreed upon ipso facto terminated the lease. This is an extreme case, the general rule being that forfeiture must be claimed before it can be said to have occurred.

§ 1236. Enforcing forfeiture clause- Waiver.- The lessor intending to claim a forfeiture should, as a general rule, exercise his right by giving notice, or by re-entry for breach, or some other appropriate method within a reasonable time or he will be held to have waived it. But

478, citing Bridges v. Hitchcock, 5 Bro. P. C. 6; Cook v. Booth, Cowp. 819; Furnival v. Crew, 3 Atk. 83; Moore v. Foley, 6 Ves. 232; Iggulden v. May, 9 Ves. 325, 7 East, 237; Dowling v. Mill, 1 Mod. 541; Harnett v. Yielding, 2 Sch. & L 556; Brown v. Tighs, 2 Cl. & Fin. 396; Sheppard v. Doolan, 3 Dr. & War. 1; Price v. Assheton, 1 You. & Coll. Ex. 82; Smyth v. Nangle, 7 Cl. & Fin. 405. See also Page v. Estey, 54 Me. 319.

1 Ante, § 1215; Alleghany Oil Co. v. Snyder, and Gillmore v. Brown (C. C. A.), 106 Fed. Rep. 764.

2 McMillan v. Philadelphia Oil Co., 159 Pa. St. 142.

Kenton Gas & Electric Co. v. Dorney, 17 Ohio Cir. Ct. Rep. 101. 4 See post, § 1240, note 2, p. 994.

5 Thompson v. Christie, 138 Pa. St. 230, 11 L. R. A. 236; Carnegie Nat. Gas Co. v. Philadelphia Co., 158 Pa. St. 317; Alleghany Oil Co. v. Bradford, 86 N. Y. 638, affirming

waiver of one claim for breach in a lease is not a waiver of all others.1

§ 1237. Gas not embraced in oil lease-Boring after forfeiture. Rather a novel case recently arose in Pennsylvania. Certain premises were leased to the lessee, the same to be occupied and worked for petroleum, rock, or carbon oil, and not for any other purpose whatever. Operations failed to develop any oil, but a paying gas well was opened. The lessees first claimed this gas upon the ground that the language of the lease was sufficient to include it. This was denied by the supreme court, in an opinion holding oil and gas not to be synonymous. Later the lessees claimed compensation out of the proceeds from this gas well for moneys expended in the effort to develop oil, which was also denied,3 the lease having in the meantime been forfeited, under its terms, for failure by the lessees to procure oil, though this does not appear to have been a material question in the case. It may also be stated that the lessee is not entitled to compensation for boring done after the lease has been declared forfeited."

2

§ 1238. Abandonment - When permitted.- Mr. Bainbridge seems to reason from the early cases that the right of abandonment exists generally. But, manifestly, it should find its authority in the instrument of lease itself, or seri

21 Hun, 26; Guffey v. Hukill, 34 W. Va. 49, 8 L. R. A. 759; Thomas v. Hukill, 34 W. Va. 385; Baldwin v. Ohio Oil Co., 13 Ohio Cir. Ct. Rep. 519,7 Ohio Dec. 50. See ante, § 1225. Murray v. Heinze, 17 Mont. 353,

42 Pac. Rep. 1057.

Lond.ed.), pp. 211,213. See also Friar v. Grey, 7 L. J. (N. S.) Q. B. 301; Price v. Nicholas, 4 Hughes, 616, 19 Fed. Cas. 1320, No. 11,415; Cowan v. Radford Iron Co., 83 Va. 547, 8 S. E. Rep. 120; Ormsby Coal Co. v. Bestwick (Pa.), 18 Atl. Rep. 538; Van

2 Truby v. Palmer (Pa.), 6 Atl. Meter v. Chicago & V. M. Coal Co. Rep. 74.

Palmer v. Truby, 136 Pa. St. 556, reported in 20 Atl. Rep. 516, as Allen v. Palmer.

(Iowa), 55 N. W. Rep. 106; McKee v. Colwell, 7 Pa. Sup. Ct. 607; Paine v. Griffiths, 86 Fed. Rep. 450; Worrall v. Wilson, 101 Iowa, 475, 70 N.

4 Detlor v. Holland, 57 Ohio St. W. Rep. 619; Barker v. Dale, 17 492, 49 N. E. Rep. 690. Pittsb. Leg. J. 19, 2 Fed. Cas. 810,

5 Bainb. Mines (1st Am. from 3d No. 988; Crawford v. Ritchey, 43

ous loss might be entailed upon the lessor; the general rule being that the covenants are binding. Whence it follows that, in the absence of appropriate provision in the lease or a controlling custom, the lessee is bound to take from the mine the amount stipulated in the lease, and to occupy it for the term if necessary, or pay at least the minimum or dead rent.2

§ 1239. Notice in general-When necessary. Unless the lease stipulates to the contrary in the most positive terms, it is manifest that, upon principles of exact justice, in case of intention to claim a forfeiture, notice of the intention should first be given, and a reasonable time allowed in most cases to avoid the default. And the same rule should apply to an intention to abandon, where abandonment is permitted.

§ 1240. Forfeiture Where burden rests-What is.It would scarcely seem necessary to state that the burden of the affirmative of an allegation rests on him who makes