nant or condition, in default of both of which a forfeiture is provided for. Where it is simply left to the lessee's option to complete a well within the time specified, or pay a given sum, no right of forfeiture would result to the lessor on a failure to pay such sum, as forfeitures are never implied, but can only result when expressly provided for.2 If the tenancy is dependent upon a per cent of the mineral oil produced, and a cash rental for the land during the period that gas is extracted, the lessee could either pay the royalty, or the fixed rental, according to the mineral taken and the lessor could not compel him to use the one to the exclusion of the other. And where the privilege is accorded the lessee in the lease to pay annually a stipulated amount per acre upon the land covered by the lease, or drill the land for oil, the lease could be extended by making the annual payment, although the lessee failed to drill the required number of wells.*

§ 173. Same

Lessee must make election before end of term. The lessee must make his election as to which of the alternative provisions he will comply with and per

1 Marshall v. Forest Oil Co., 198 Pa. St. 83; 47 Atl. Rep. 927.

2 An alternative provision that if an oil well is not completed as stipulated for, the lessee shall pay a fixed rental, does not authorize a forfeiture for non-payment of such rental, as forfeitures are never implied, but must always be provided for. Marshall v. Forest Oil Co., 198 Pa. St. 83; 47 Atl. Rep. 927.

3 An oil and gas lease predicated upon a royalty on the oil and a cash rental for the land while gas is produced, is kept in effect by a payment of either the royalty on the oil or the cash rental while gas is produced. Harness v. Eastern Oil Co. (W. Va. 1901), 38 S. E. Rep. 662.

A lease which provides for an extension from year to year, by the payment of a fixed sum per acre, can be held in effect, notwithstanding a failure to drill the required number of wells, where such a clause is inserted in the lease. Allegheny Oil Co. v. Snyder, 106 Fed. Rep. 764; Consumers Co. v. American Land Co., 31 Pitts. Leg. J. 24.

form the same before the expiration of his tenancy, because if he waits until the lease has expired by lapse of time he cannot then prolong it by tendering the amount he otherwise could have paid, as an excuse for the performance of the alternative condition, during the continuance of the tenancy.1 The privilege of paying a certain amount in lieu of the completion of a certain number of wells, within a given period, cannot be exercised by the lessee after the end of the term, so as to prolong the tenancy, and notwithstanding the lease is conditioned for an indefinite extension, so long as paying oil or gas may be produced, in the absence of such production, since this alone is the contingency upon which an extension is to depend, the lease would not be extended by a tender of certain payments, conditioned to be made in lieu of the completion of the test well provided for, as this payment was intended to have been made only during the continuance of the term, as a penalty for the failure to complete the test well.8

§ 174. Same- Unlimited option in lessee avoids lease. In West Virginia an oil and gas lease is held void which recognizes upon the lessee's part an indefinite and

1 On expiration of the term for which the lease is fixed, the option to pay a given sum to extend the lease, which was an alternative condition of a failure to drill a test well during the term, cannot be exercised so as to prolong the tenancy. West Pa. Gas Co. v. George, 161 Pa. St. 47; 28 Atl. Rep. 1004.

2 A privilege by the lessee of an oil lease to pay a stipulated sum per acre, on failure to drill a fixed number of wells in a given time, cannot be exercised after the termination of the tenancy for which the lease was granted. Brown v. Fowler, 65 Ohio St. 507; 63 N. E. Rep. 76.

3 A lease for a given time and as much longer as paying oil or gas is found, will not be extended by payments made after the expiration of the term, unless paying oil or gas is found, simply because such payments were provided for the delay of the test well at the commencement of the term. Bettman v. Harness, 42 W. Va. 433; 26 S. E. Rep. 271.

unlimited option of either working the ground or not, at his election, unless such lease is based upon a fixed and certain rental, in addition to the prospective royalties, in case of discovery of oil or gas.1 Nor is such a holding any departure from settled legal principles, for while the interest of the lessor would be subserved by a diligent operation of his land, under an oil or gas lease, where the lease does not obligate the lessee to work the land or pay any certain sum for the non-performance of his contract, and he does neither, there is certainly nothing of benefit moving to the lessor in return for his demise, and the contract would be void for want of a consideration.2 And a clause that until the completion of a test well, a fixed sum shall be paid, at stated intervals, without any limit, as to time, is tantamount to an indefinite option to pay such sum or complete the well at the election of the lessee, and since he is not bound, under such a provision, to ever produce oil or pay the royalty provided for in the lease, the courts of Indiana hold that such a lease would be void.

§ 175. Additional wells Covenants for. Where the covenant is expressed in the lease that the lessee, within a specified time, is to drill a given number of additional wells, in case the test well develops oil or gas, a violation of such a covenant would authorize a forfeiture of the lease, or the recovery of damages, according to the terms

1 A lease, which does not bind the lessee to search diligently for oil or gas, is void, unless rent is provided for, in addition to the prospective royalty to be received, in case of discoveries. Steelsmith v. Gartlan, 45 W. Va. 27; 44 L. R. A. 107; 29 S. E. Rep. 978; Cowan v. Iron Co., 83 Va. 547, Petroleum Co. v. Coal Co., 89 Tenn. 381. See also Fed. Oil Co. v. West. Oil Co. (Ind. 1902), 112 Fed. Rep. 373; Brown v. Fowler (Ohio 1902), 63 N. E. Rep. 76.

2 Ante, idem. But see Lowther Oil Co. v. Guffy (W. Va. 1903), 43 S. E. Rep. 101.

3 Brooks v. Kunkle (Ind.), 57 N. E. Rep. 260.

of the lease. But a covenant for the completion of additional wells, within a given time after completion of the test well, would be of no effect unless there was some time limit within which the first well provided for should be commenced or completed,2 and even where the covenant is definite as to the time and place and number of wells that shall be bored, after the completion of the test well, it is held, in Ohio, that such a covenant for additional wells cannot be enforced, where the test well has demonstrated the utter uselessness of drilling such wells, because of the entire absence of such mineral upon the demised premises.3

Peculiar covenants for.

§ 176. Rent and royaltyIn many leases for oil and gas the covenants for royalty, like many other provisions of such leases, are the same as the customary clauses pertaining to the same subject, in leases of the solid minerals, but it frequently occurs in such leases that covenants as to royalty are employed that are peculiar to leases of oil and gas, and some of these have recently been construed by the courts. One of the most customary covenants for royalty that is peculiar to leases

1 Huggins v. Daly (W. Va.), 99 Fed. Rep. 606; 48 L. R. A. 320; Carnegie Gas Co. v. Phila. Co., 158 Pa. St. 317; 27 Atl. Rep. 951; McClay v. Western Pa. Gas Co., 201 Pa. St. 197; 50 Atl. Rep. 978; Snodgrass v. So. Pa. Oil Co., 35 S. E. Rep. 820; Marshall v. Forest Oil Co., 198 Pa. St. 83; 47 Atl. Rep. 927.

2 An agreement in an oil lease to finish a second well in a specified time, after completion of the first well, is of no effect where there is no agreement that the first well shall be commenced or completed in a given time. Federal Oil Co. v. West. Oil Co. (1902), 112 Fed. Rep. 373.

3 Nothwithstanding a clause in an oil lease, providing for a second well within a stated period, the lessee cannot be compelled to drill such well, where the first well has demonstrated that no oil or gas can be discovered on the premises. Kenton Gas Co. v. Orwick, 21 Ohio Cir. Ct. Rep. 274.

4 See chapter, Mining Leases.

for oil and gas, is the provision permitting the lessee to pay a given sum, at fixed intervals, in lieu of the completion of a test well or wells. Where this clause occurs the lessor can recover the rent, on failure to complete the well or wells, provided for.1 And where the lease provides for a test well within a given period and a forfeiture for failure to comply with such condition and also provides for the payment of a fixed rental during the period of the default, it is held that in case of a breach of the condition, the lessor can declare a forfeiture and also recover the rent provided for the failure to comply with the condition." But as the payment is in the nature of a penalty for the breach and was evidently intended as compensation to the lessor, in lieu of the forfeiture, it is doubtful if a court of equity would permit the lessor to recover the premises through a forfeiture for the breach and also a penalty, or additional sum, because of such forfeiture.3

§ 177. Same When lessor can recover. A fixed rental to be paid until the completion of a well for oil,

1 Where an option for a lease provides that lessee shall drill the well provided for or pay a given rental, and the lease also provides that a failure to do either shall render the contract void, the lessee cannot elect to do neither, but on failure to complete the well must pay the royalty provided for. Jackson v. O'Hara, 183 Pa. St. 233; 33 Atl. Rep. 624. Under the Curtis Act, Sec. 16, approved June 28, 1898, preventing the collection of royalty upon mining leases in the Indian Territory, royalty due before the passage of the act, would not be effected. S. W. C. & I. Co. v. McBride (Sup. Ct. U. S., May, 1902), 185 U. S. 499.

2 A provision that an oil lease shall be void if well is not completed, as stipulated for, and that a failure to complete a well for two years will enable lessor to recover a fixed annual rental for the period of the default, will enable the lessor to forfeit the lease, for non-performance of the condition and also recover the royalty, in assumpsit. Miller v. Logan, 31 Pitts. Leg. J. 217; Conger v. Trans. Co., 165 Pa. St. 561.

3 See, contra, Diamond Plate Glass Co. v. Tennell, 22 Ind. App. 132; 52 N. E. Rep. 168.