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but without an express warranty, he takes it as he finds it, and subject to all the risks of failure and depreciation in value. But where there is an express warranty, he has, by implication, all the privileges necessary for the enforcement of his right, and a lease which gives the lessee the right to take out all the mineral beneath a certain surface, is held to confer the right to make the necessary openings to reach the mineral, provided this did not interfere with the rights of the surface owner.2

§ 122. Same What acts constitute a breach. Just what acts will constitute a breach of warranty in a mining lease depends essentially upon the language of the warranty and the matters to which it pertains. The mere statement of quality of a particular metal described will not amount to a warranty that such metal is of the quality mentioned, for this is a mere statement of opinion, and the lessee takes subject to his own risk; 3 but without express words of

alty on coal mined the lessor accepted the royalty on merely the actual amount mined, without demanding the royalty due by the lessee's failure to mine the minimum amount fixed, did not show that the sum stipulated was regarded by the lessor as a penalty, instead of liquidated damages; since such amount became a fixed legal liability on the part of the lessee on failure to mine the amount prescribed, and the lessor was not bound to demand it at any certain time." Coal Cr. M. & M. Co. v. Tenn. C. & I. Co. (Tenn.), 62 S. W. Rep. 162. No warranty of quality will result, unless clearly intended from language used. Carondelet Iron Works v. Moore, 78 Ill. 65; 2 M. M. R. 625.

1 Fort Scott C. & M. Co. v. Sweeney, 15 Kas. 244; Gowan v. Christie, supra. But see as to existence of subject-matter affecting lessee's liability for rent, Ridgway v. Sneyd, 1 Kay, 627; Millers v. Devonshire, 16 Beav. 252; s. c. 22 L. J. Ch. 310; Phillips v. Jones, supra.

2 Trout v. McDonald, 83 Pa. St. 144; Knight v. Ind. C. & I. Co., 47 Ind. 105; 17 Am. Rep. 692; Patton v. Axley, 5 Jones L. (N. C.) 440; Lehigh C. & N. Co. v. Harlan, 27 Pa. St. 429; Hanson v. Boothman, 13 East, 32. A lease made subject to a mortgage, makes lessee liable to account to mortgagee for ore taken. First. Nat. Bk. v. Min. Co., 89 Fed. Rep. 449. A general warranty is a real covenant running with the land. Susquehanna Co. v. Quick, 61 Pa. St. 328; 1 M. M. R. 202.

8 Carondelet Iron Works v. Moore, 78 Ill. 65.

warranty, a warranty of quality may be inferred from the terms used in making the contract.1 An outstanding parol license to mine revocable at the will of the licensor, is not a breach of a warranty for quiet enjoyment,2 as such license is revoked by a sale or transfer of the property; but a deed of all the mineral beneath a certain tract would be a breach of a warranty that the land was "free from incumbrances." 3 A lessor's interference with the lessee's right to mine by also excavating portions of the demised premises may constitute a breach of warranty for quiet enjoyment; an assignee, however, who only takes such title as his assignor has, cannot claim a breach of warranty if he afterwards finds the assignor's title was defective.5

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§ 123. Covenants and conditions of lease. Although classed together and frequently created by the same form of words, there is an important distinction between the conditions and covenants of a lease. Covenants are promises to do or refrain from doing certain things, while conditions are qualifications annexed to the estate of the lessee, by which it may ultimately be defeated or avoided."

1 Warren v. Phil. Coal Co., 83 Pa. St. 437.

2 Gesner v. Cairns, 2 Allen (N. B.), 595.
3 Stambaugh v. Smith, 23 Ohio St. 585.
4 Shaw v. Stenton, 3 H. & N. 858.

5 Johnson v. Mendenhall, 9 W. Va. 112. An assignee must ascertain, at his peril, whether lease has been forfeited or not. Carnegie Gas Co. v. Phil. Co., 158 Pa. St. 317; 27 Atl. Rep. 951; Hodgson v. Perkins, 84 Va. 706; 16 M. M. R. 116; Washington Nat. Gas Co. v. Johnson, 123 Pa. St. 576; 16 Atl. Rep. 799; 16 M. M. R. 165.

• Tiedeman R. P., § 185, p. 120; Hayne v. Cummings, 16 C. B. (N. s.) 426; Goodwin v. Gilbert, 9 Mass. 510; Johnson v. Massey, 45 Vt. 419; Maul v. Weaver, 7 Pa. St. 829.

7 Tiedeman on R. P., § 191, p. 124. But the presumption is always against the attaching of a condition. Burnes v. McCubbin, 3 Kan. 226; Spear v. Fuller, 8 N. H. 174. A right of re-entry, attached to a covenant, gives it the force and effect of a condition. Chamberlain v. Parker, 45 N. Y. 569; 10 M. M. R. 144.

When a covenant is incident to the nature of the contract, it may be exacted independent of positive stipulation and is said to be implied.1 Among this class of covenants is the lessors covenant for quiet enjoyment.2 But when either party is given a right that is not necessarily incident to a complete performance of the contract, the covenant of the opposite party must necessarily be express.3 For instance, in the lease of a salt well, there is no implied covenant that the well is of any particular productive capacity, and such a promise by the lessor should be expressed in the body of the lease. There is also an important distinction between a condition and a limitation, or what is sometimes called a condition in law. On the breach of a condition the lessor or reversioner must enter in order to determine the estate, while entry is not necessary in the case of a limitation, as the tenancy is determined, ipso facto, after the lapse of the period of limitation. The intention of the parties will determine whether the condition is precedent or subsequent; if precedent it must be performed before

1 Washburn R. P. 487; Maule v. Ashmead, 20 Pa. St. 482; Hamilton v. Wright, 28 Mo. 199.

2 Mack v. Patchin, 20 N. Y. 167. As to covenant against waste, see Nave v. Berry, 22 Ala. 322.

3 Aspden v. Austin, 5 Ad. & El. (N. s.) 684; Sheets v. Seldon, 7 Wall. 423.

* Clark v. Babcock, 23 Mich. 164. But see as to express covenant to produce certain quantity, Jarvis v. Tomkinson, 1 H. & N. 195; 26 L. J. Ex. 41.

5 Palethorp v. Bergner, 52 Pa. St. 149; Lawrence v. Knight, 11 Cal. 298. See as to acquiescence in the breach, Ireland v. Nichols, 46 N. Y. 413; Adams v. Ore Knob Co., 7 Fed. Rep. 634; 3 M. M. R. 183. But see as to conditions of mining license, in Missouri. Bingo Mining Co. v. Felton, 78 Mo. App. 210.

6 Tiedeman R. P. 181; Washburn R. P.23-26; Henderson v. Huntington, 59 Pa. St. 340; Owen v. Field, 102 Mass. 105; Miller v. Levi, 44 N. Y. 489. Tiedeman on Real Property, § 273, p. 181.

the commencement of the term,1 and if subsequent it is to be performed after the estate has vested, and the non-performance will operate either to enlarge or defeat the estate of the lessee.2

§ 124. Same-Right to work - Incidental privileges.Every lease of mining property should contain an express stipulation, in clear and unequivocal terms, giving to the lessee the right to search for and to dig, work, mine and carry away the mineral, or the particular kinds of mineral demised. From the nature of the property demised and the various circumstances likely to give rise to conflicting rights, as well as the fact that the instrument, or lease, is the only repository of the rights of the parties thereto, the necessity of a specific enumeration and unambiguous statement of the rights of the parties, will be apparent to the reader and practitioner. And as the lease should ex

1 Tiedeman R. P. 274. And see as to effect of an illegal condition, where it is precedent to the vesting of the estate, Martin v. Ballou, 13 Barb. 119; Vanhorn's Lessee v. Dorrance, 2 Dall. 317; Mizell v. Burnet, 4 Jones L. 249. And the effect of illegality upon a condition subsequent. Taylor v. Sutton, 15 Ga. 103; Jones v. Doe, 2 Ill. 276; Godberry v. Shepherd, 27 Miss. 203; Merrill v. Emery, 10 Pick. 507; Badlam v. Tucker, 1 Id. 284.

2 Van Renssaeler v. Ball, 19 N. Y. 100; Waters v. Bilden, 70 Pa. St. 275; Ragan v. Walker, Wis. 527; Finley v. King's Lessee, 3 Pet. 340. Implied covenant that land shall be thoroughly tested for oil and gas. Keppner v. Lemon, 176 Pa. St. 502. A covenant for the removal of an average of not less than a given number of tons, per year, does not necessitate the removal each year of such quantity. Oglesby v. Hughes, 96 Va. 115; 30 S. E. Rep. 439. A covenant to work in a "careful and workmanlike manner" is violated by any kind of work that injures or destroys, or begets injury or decay. Con. Co. v. Schaefer, 135 Ill. 210; Crompton v. Lea, L. R. 19 Eq. 115; Thomas Iron Co. v. Allentown Co., 28 N. J. Eq. 77; Lewis v. Fothergill, 5 Ch. 103; Quarrington v. Arthur, 10 M. & W. 335; Walker v. Tucker, 70 Ill. 527; Murray v. Heinz, 17 Mont. 353; 20 Am. & Eng. Enc. Law (2 Ed.), 779.

3 MacSwinney on Mines, p. 226; Coppinger v. Gubkins, 3 J. & L. 410. 4 MacSwinney on Mines, p. 227; Dugdale v. Robinson, 3 K. & J. 695; Coppinger v. Gabkins, supra, where the right to work was held doubtful.

pressly grant to the lessee the right to work the minerals demised, so such incidental rights as would be necessary to enable the lessee to carry out and enjoy this privilege could be properly incorporated in the lease, such as the use of the surface and subsoil;1 a reasonable use of timber and water and other easements necessary to a full and complete enjoyment of the lessee's rights. But if the lease fails to expressly provide for such rights as these the law would by implication recognize them in the lessee, as incidental to the enjoyment of his express rights and he I would have a reasonable use of the surface and subsoil without an express stipulation to that effect.2

§ 125. Manner of working — Particular covenants. The duty of working a mine cannot be implied in the absence of an express covenant in a mining lease,3 and for this reason such a covenant should always be incorporated; 4 but where a lessee has covenanted to work a mine in a specified way or for a certain time, he will be liable on his covenant for a failure to work it, and it matters not that no mineral could be discovered or that his work would

1 MacSwinney on Mines, p. 227; Taylor v. St. Helen's, 6 Ch. D. 278281.

2 Marvin v. Brewster Iron Co., 55 N. Y. 538; 14 Am. Rep. 322; Richards v. Jenkins, 18 Law Times (N. s.), 438. A mining lease of minerals conveys the right, as an incident, to open shafts to get same. Lehigh Zinc Co. v. Bamford, 150 U. S. 665; s. c. 33 Fed. Rep. 677; Hyatt v. Vincennes Bank, 113 U. S. 408; Hailey Bank v. George V. B. Min. Co., 89 Fed. Rep. 449; Con. Co. v. Savitz, 57 Ill. App. 659; Kokomo Gas Co. v. Albright, 18 Ind. App. 157; Oskaloosa Col. v. Fuel Co., 90 Iowa, 380; Byrnes v. Douglas, 23 Nev. 83; Oglesby v. Hughes, 96 Va. 115; 20 Am. & Eng. Enc. Law (2 Ed.), 784.

3 MacSwinney on Mines, pp. 228-229; James v. Cochran, 7 Exch.

170.

4 Ante, idem; Abinger v. Ashton, 17 Eq. 370; Wheatley v. West. &c. Co., 9 Eq. 539, 554.

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