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have been a useless expense.1 If there is no particular covenant in the lease governing the lessee's mode of working the mine demised, he may work the same in the manner most advantageous to himself, so long as he is not negligent and pays the proper royalty,2 but if he contracts to work the mine continuously and without interruption," 3" in a proper and workmanlike "4 or if any covenant is inserted in the lease to govern his manner of operating the mine, he will be bound by the conditions of such covenant and would forfeit his rights thereunder, if forfeiture was the penalty provided for the breach.5 And where the lease does not provide for a forfeiture, in case of a breach of a covenant to work, the lessor's proper remedy for the breach of such a covenant would generally be an action for damages on the covenant.6 The courts will not

1 Jarvis v. Tomkinson, 1 H. & N. 195; Walker v. Jeffries, 1 Ha. 350-352. See also Tooley v. Addenbrook, 13 M. & W. 174. Nor will pumping water save a covenant to work the mine. Clear Cr. Min. & Mill Co. v. Comstock Gold and Sil. Min. Co. (Colo. App. 1902), 68 Pac. Rep. 1060.

2 Blanchard & Weeks Ld. Cas., p. 440; Wright v. Pitt, L. R. 12 Eq. 408; Wheatley v. West. Coal Co., 9 Law Rep. Eq. 538; B. & W. L. C. 431.

3 A covenant to work continuously will not be implied. Jaegan v. Vivian, 6 Ch. 757; Walker v. Jeffries, 1 Ha. 341-351. Although it was formerly held that it could be, by a reservation of royalty. Sharp v. Wright, 28 Beav. 150. But under such a covenant a lessor cannot comWheatley v. West. Coal Co., 9 L. R. Eq. 538;

pel increased working.

B. & W. L. C. 431.

Lewis

4 This term is subject to explanation by evidence of experts. v. Fothergill L. R. 5 Ch. 103, where a working by "Instroke" was held a" proper and workmanlike manner." Such a covenant is not violated where no work is performed. Quarrington v. Arthur, 10 M. & W. 335.

5 Bryan v. Banks, 4 B. & A. 401; Roberts v. Davy, 1 Nev. & M. 443; Grove v. Donaldson, 15 Penn. 128; Tiley v. Meyers, 25 Penn. 397; Meyers v. Tiley, 32 Id. 267; B. & W. L. C. 438.

6 Wheatley v. Westminster &c. Coal Co., 9 Eq. 554; 2 Dr. & Sm. 347; MacSwinney on Mines, p. 230; Cleopatra Min. Co. v. Dickinson (Wash. 1902), 68 Pac. Rep. 456; Core v. N. Y. Pet. Co. (W. Va. 1903), 43 S. E. Rep. 128.

decree specific performance of a covenant to work, on account of the impracticability of enforcing such a decree,1 nor will the court generally restrain the working of a mine by injunction, but is always loath to interfere by such proceedings, unless the mode of working was in violation of a negative covenant.2

§ 126. Instroke and outstroke Right to work by. A lessee has by implication the right to work by instroke and can exercise such right without an express stipulation in the lease to that effect, although he cannot work by outstroke without the express consent of the lessor or a covenant in the lease giving him such right. Instroke is the right to raise or take from a leased mine through the shaft of an adjoining mine,5 and where the mineral is mined on the demised land by means of drifting, the right is of material advantage to the lessee, as saving him the expense consequent upon sinking a new shaft to reach the ore.6 Outstroke is the right to raise ore from a mine adjoining a demised mine, through a shaft or opening in the leased mine. The right does not exist in the lessee by implication, but must be specially covenanted for before it can

1 Wheatley v. West. C. Co., supra; Abinger v. Ashton, 17 Eq. 370; Fry Spec. Per. of Con. 18; Pollard v. Clayton, 1 K. & J. 462; Booth v. Pollard, 4 Y. & C. Ex. Eq. 61.

2 Abinger v. Ashton, supra; MacSwinney on Mines, p. 230; High on Injunctions, Vol. 1, chapt. 5; McCann v. Wallace (Oreg. 1902), 117 Fed. Rep. 936.

3 Whally v. Ramage, 10 W. R. 315; Jegon v. Vivian, L. R. 6 Ch. App. 742; s. c. 8 Morrison's Min. Rep. 322.

4 James v. Cochrane, 7 Ex. 170; 8 Id. 556; MacSwinney on Mines, pp. 238-239.

5 MacSwinney on Mines, p. 231.

• Jegon v. Vivian, supra; Lewis v. Fothergill, L. R. 5 Ch. 103; MacSwinney on Mines, supra.

MacSwinney on Mines, Sec. 49, p. 231.

be rightfully exercised,1 for though the lease of a mine carries with it to the lessee the right to use the space or chamber from which the ore is taken,2 the right extends only to the minerals demised, and would not authorize the lessee to use the same for the conveyance of minerals from any other mine,3 and such use would entitle the lessor to collect a way-lease rent, by way of compensation, for the exercise of the privilege.4

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§ 127. Forfeiture for breach of covenant. Conditions in leases working forfeitures are not favored by the courts and such provisions will not be enforced, unless from the language used it was clearly the intention of the parties, and whenever there is any doubt about the lessor's right to enter and declare a forfeiture on the breach of a condition the doubt will be resolved against such right, and the court will hold the provision to be a covenant sounding in damages.6 Nor will the court assume a particular transaction to work a forfeiture, although in violation of a covenant, in the lease, without first giving the lessee an opportunity of trying the question under the proper issues, and even where the court finds that the lessee has been guilty of such a breach as would work a forfeiture of the lease, the lessor

1 James v. Cochrane, 7 Ex. 170; 8 Id. 556; MacSwinney on Mines pp. 238-239.

2 Lewis v. Brauthwaite, 2 B. & Ad. 437; Keyse v. Powell, 2 E. & B. 144; Eardley v. Granville, 3 Ch. D. 826; Jones v. Cochrane, supra.

3 Gould v. Gt. West. Coal Co., 2 De G. J. & S. 600; Rogers v. Taylor, 1 H. & N. 706.

4 MacSwinney on Mines, p. 239, where the Scotch law is stated to be the same. Mungle v. Young, 10 Sess. Cas. (Ser. 3) 901.

McKnight v. Kreuntz, 51 Pa. St. 232; s. c. 53 Id. 319. Causes of forfeiture not specified are not inferred. Core v. N. Y. Pet. Co. (W. Va. 1903), 43 S. E. Rep. 128; Henne v. So. Penn. Oil Co. (W. Va. 1903), 43 S. E. Rep. 147.

Ante, idem. Core v. N. Y. Pet. Co., 43 S. E. Rep. 128.
Bamser v. Colby, 1 Hare, 109; s. c. Mor. Min. Dig. 185.

will not be permitted to take advantage of such right, unless he himself has performed all the conditions of the forfeiture, for such provisions are construed strictly.1 The breach of a covenant for which forfeiture is the penalty does not operate as a forfeiture ipso facto, but there must generally be some act on the part of the lessor to show his election to take advantage of the clause,2 and a failure to take some steps to enforce the forfeiture, as where the lessor fails to enter, after breach of condition,3 would generally constitute an acquiescence in the breach and a waiver of the forfeiture. But where it is clearly the intention of the parties, from the language used, that the breach of a particular covenant was to work a forfeiture of the lessee's rights and there has been a breach of such covenant on the lessee's part, the court would carry out the intention of the parties and enforce the forfeiture,5 and any acts under the lease on the part of the lessee, after entry of the lessor, or notice to the lessee of his intention to work the forfeiture, would be held to be a trespass by the lessee, for which he could be made to respond in damages.7

1 Von Schmidt v. Huntingdon, 1 Cal. 70; Coleman v. Clemens, 23 Id. 248; Clark v. Hart, 19 Beav. 349; 6 De G. M. & G. 232.

2 Roberts v. Davey, 4 B. & Ad. 664; 8. c. Mor. Min. Dig., p. 111.

3 This was necessary at common law. But ejectment has same effect now. Min. Co. (Pa. 1902), 53 Atl. Rep. 764.

Doe v. Banks, 4 B. & Ald. 401;

Tiedeman R. P., p. 277, § 276. Ante, idem. Beedle v. Hilldale

4 2 Washburn R. P. 17, 18; Tiedeman R. P., supra.

5 Tiley v. Meyers, 32 Penn. 267; Blanchard & Weeks Ld Cas., 438437.

The entry of the lessor by going on the premises, without lessee's consent, and conducting mining operations, is a sufficient entry to allow the statute of limitations to run against the tenant. Doe v. Bennett, 9 M. & W. 642; s. c. 7 ld 225. See also Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80.

7 Lockwood v. Lunsford, 56 Mo. 68. And this applies also to a licensee holding over after a forfeiture. Idem.

§ 128. Reservation of rent or royalty. — A reservation is the retention of some right or profit arising from the subject of the demise, and which previously had no separate existence. A reservation of royalty is not essential, and if inserted it need not be in any particular form of words; 2 but an express reservation is necessary when the lessor wishes to retain a right of way or any other right or control over the demised premises.3 The usual terms employed in a reservation of royalty are," yielding and paying," "provided the lessee shall pay," or " in consideration of the royalty aforementioned;" 4 but the reservation will be good, although it is in general terms and does not show to whom the reservation is made, for the law will apply it according to the nature of the lessor's interest; 5 although, when it is special, it should be to the person from whom the lessee derives his estate, or to the legal owner.6

§ 129. Same Dead rent payable unconditionally. — Every lease should contain some provision securing the payment of a rent or royalty to the lessor. It is sometimes customary for the lessor to reserve a fixed or dead rent, in addition to a royalty on all the mineral raised, so that he can depend upon receiving a certain sum each year, regardless of the productiveness of the mine and a

1 Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 321; Whitaker v. Brown, 46 Pa. St. 197; Pettee v. Hawes, 13 Pick. 323; Greenleaf v. Birth, 6 Pet. 302; Dyer v. Sanford, 9 Met. 395.

2 Taylor's Land. & Ten., § 154; Drake v. Munday, Cro. Car. 207.

3 And can only be made to grantor out of the land granted. Tiedeman R. P., § 843, p. 684.

4 Taylor Land. & Ten., § 154; Coswell v. Districh (15 Wend. 379), where the words "yielding and paying are made use of.

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Taylor's Land. & Ten., supra; citing Jaques v. Gould, 4 Cush. 384.
Ege v. Ege, 5 Watts. 138; Taylor, § 155.

See for definition of Dead Rent, MacSwinney on Mines, pp. 214–215. For customary reservation of such rent, in modern oil lease, see Parish Fork Oil Co. v. Bridgewater Gas Co. (W. Va 1902), 42 S. E. Rep. 655.

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