cannot be avoided because the lessee never entered upon the demised premises, as this would be due wholly to his own neglect, and the rent is due and payable, unless he was prevented, by the lessor, from completing the well.1 The lessee would be liable for the royalty upon a given number of wells, where the lease so provided, even though such wells were drilled by his assignee; the obligation to pay the royalty provided for in the lease would not cease with a failure to use the oil or gas produced from the demised premises, as the obligation to pay royalty would only terminate with a surrender of the lease,3 and even though the premises should cease to produce mineral at all, where a fixed rent is provided for, it has been held to be no defense to the obligation to pay such rent.

§ 178. Same When right to ends. Rent can usually be recovered up to the date when the lease is surrendered or the lessor recovers possession of the premises, but

1 Lawson v. Kirchner, 50 W. Va. 344; 40 S. E. Rep. 344; Wheeling v. Phillipps, 10 Pa. Sup. Ct. 634; Roberts v. Bettman, 45 W. Va. 143; 30 S. E. Rep. 95; Leatherman v. Oliver, 151 Pa. St. 646; McMillan v. Phila. Co., 159 Pa. St. 142.

2 The original lessee would be liable for the fixed rent provided for in a lease, upon every well drilled, although the same were drilled by his assignee and the lessor had full knowledge thereof and had not demanded rent from such assignee, as the assignment would not release the lessee from his covenant. Pittsburg Con. &c. Co. v. Greenlee, 164 Pa. St. 549; 30 Atl. Rep. 489.

3 Double v. Union, H. & L. Co., 172 Pa. St. 388; 33 Atl. Rep. 694. The assignment by a father of his interest in royalties under an oil lease executed by both him and his son, will not constitute a severance of the premises and apportionment of the rent in subsequent legal proceedings. Swint v. McCalmont Oil Co., 184 Pa. St. 202; 38 Atl. Rep. 1021.

4 Springer v. Gas Co., 145 Pa. St. 430; 22 Atl. Rep. 986. The failure of the lessor's wife to sign an oil lease, where lessee has continued to operate under the lease, with knowledge that she had not signed, will not affect the right to collect the royalty. Kunkle v. Peoples Gas Co., 165 Pa. St. 133; 30 Atl. Rep. 719.

not subsequent to that period.1 Where the tenant refuses to either surrender possession or pay the rent, it is recoverable up to the date of the suit, but rent cannot be recovered after an abandonment of the premises by the lessee. And although no notice of the abandonment was given by the lessee, if he publicly and openly quits the lease and removes his casing and machinery from the well, this would, of itself, be sufficient notice of the abandonment to the lessor, and he could not recover subsequently accruing rent.' No royalty can be recovered, after expiration of the tenancy, although the lessee remains in possession for a period subsequent to the expiration of the term, where he had long ceased to use the premises before the demand for additional royalty, and especially would this be true where the demand was not made until after the execution of a second lease, by the lessor, for this would be evidence of an intention to regard the term of the lessee as at an end and rent thereafter could not be recovered."

1 Diamond Glass Co. v. Tennell, 22 Ind. App. 132.

2 But where the tenant refuses to either surrender the lease or pay the rental, rent can be recovered up to the date of the surrender or date of trial and recovery of possession by the lessor. Bettman v. Shadle, 22 Ind. App. 542; 53 N. E. Rep. 662. Douthett v. Gibson, 11 Pa. Sup. Ct. 543; Diamond Glass Co. v. Tennell, 22 Ind. App. 132.

3 Rent under an oil lease can be recovered up to but not subsequent to an abandoment of the lease. Moon v. Pitts. Plate Glass Co. (Ind. App.), 56 N. E. Rep. 108.

4 Although no notice of an abandonment is given, where the lessee publicly and openly quits the lease and removes his machinery, no rent can subsequently be recovered by the lessor. May v. Hazelwood Oil Co., 152 Pa. St. 518; 25 Atl. Rep. 232.

5 Williams v. Guffy, 178 Pa. St. 342; 35 Atl. Rep. 875.

6 A subsequent leasing of land covered by an oil lease is evidence of an intention to claim a forfeiture, and after such second lease, the lessor cannot recover rent from the first leseee. Wolf v. Guffy, 161 Pa. St. 276; 28 Atl. Rep. 1117. A lessee is not chargeable with bad faith in failing to account for royalty, where the amount stipulated for is a por

§ 179. Same Implied covenant for. What experience has taught the courts in the oil and gas regions to be customary and fair conditions, as regards the payment or collection of rent or royalty, upon such classes of mineral, have not infrequently been incorporated into the contracts of the parties, as implied covenants in regard to the payment of such rent or royalty. For instance, where a lease provides for a fixed rental upon a gas well, conditioned to be paid "so long as gas shall be sold therefrom," since it would manifestly be unjust to let the lessee either wholly fail to sell the gas at all, or to give it all away, to avoid payment of the royalty, the court would hold such covenant to carry with it the implied obligation on the lessee's part, to market all the gas produced from the well.1 And, conversely, a covenant to pay rent upon a gas well, has been held subject to the implied condition that it must remain a gas well," in order for the rent to be collected. And where, owing to no fault of the lessee, the well is so flooded with salt water as to prevent a production of gas therefrom, no rent could subsequently be collected.2

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§ 180. Assignment of lease — Effect of. An assignment of an oil and gas lease is not different in any essential respect from an assignment of any other lease for mining purposes, except so far as the particular covenants of leases for oil and gas would differ from the covenants and conditions of leases of the solid minerals. The rights and obligations of the respective parties to the assignment

tion of the profits, if the expenses exceeded the profits, at the date a settlement was requested. Poterie Gas Co. v. Poterie, 179 Pa. St. 68; 36 Atl. Rep. 232.

1 Iams v. Carnegie Nat. Gas Co., 194 Pa. St. 72; 45 Atl. Rep. 54. 2 McConnell v. Lawrence Nat. Gas Co., 30 Pitts. Leg. J. 346. But see, contra, Springer v. Gas Co., 145 Pa. St. 430; 22 Atl. Rep. 986, where it is held the obligation to pay rent does not terminate although the premises do not produce mineral.

are judged by substantially the same general rules of law. In either instance the assignee would take no greater estate or interest than his assignor had in the lease; 1 if he acquired but an undivided interest in the tenancy he would succeed to the rights and corresponding liabilities, incidental to such interest,2 and even if the rights or interest of the assignor were not as extensive as the assignee supposed, or although the obligations were more onerous than - he was led to believe, this would not affect the interests of the lessor of the premises, but he could insist upon a performance of the conditions and covenants of the lease and enforce the same, as against the assignee.3

§ 181. Same Liability of assignee for rent or royalty. An assignee of an oil or gas lease is liable for all royalty due during the period of his tenancy. He is liable upon the covenant for rent, although he may never have actually entered into possession of the leased premises, if the lease contemplates such payment, on a failure to complete a well, which has not been completed, as provided for.5 The liability for royalty or rent could not be avoided, for the period while the assignee was in possession, by a subsequent surrender of the lease, but the surrender would only stop the rent from accruing to the lessor

1 The assignee of an oil lease takes the same and no greater rights than his assignor had. Henderson v. Ferrell, 183 Pa. St. 547; 38 Atl. Rep. 1018.

2 An assignee of an interest in a lease is jointly liable with the original lessee for the performance of the covenants. Jackson v. O'Hara, 183 Pa. St. 233; 38 Atl. Rep. 624; Fennell v. Guffey, 155 Pa. St. 38; 25 Atl. Rep. 785.

3 So far as the lessor is concerned an assignee of an oil lease buys at his peril and is bound to ascertain if the lease has been forfeited prior to his purchase. Carnegie Nat. Gas Co. v. Phila. Co., 158 Pa. St. 317; 27 Atl. Rep. 951.

♦ Coultner v. Conemaugh Gas Co., 14 Pa. Sup. Ct. 553.

Edmonds v. Maunsey, 15 Ind. App. 399; 44 N. E. Rep. 196.

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in the future; 1 nor would it be a sufficient to the demand for rent to say that the wells could not to be operated at a profit to the assignee,' or that it had been scientifically ascertained and determined that no oil or gas was deposited upon or in the leased premises, unless such an exception to the payment of rent was conditioned in the lease. But in the assignment of an oil lease and a payment by the assignee, a stipulation for an additional payment in case of the discovery of oil, would not constitute a covenant running with the land, so as to affect a subsequent grantee of the premises, but would be held to be a mere bonus paid by the original assignee of the lease.*

3

§ 182. Same- Liability upon covenant to sink wells. The covenant to put down sufficient wells to drain the land, like any of the other covenants designed for the protection of the lessor, can be enforced against an assignee of the lessee the same as the original lessee, and the fact that the lessee or assignee had sunk wells upon surrounding or adjoining tracts of land sufficient to demonstrate the futility of operations upon the leased premises, would be no defense, for this is not the terms of the covenant, nor an exception to the obligations thereof. But the assignee

1 An assignee of a lease who holds the lease without drilling the wells provided for a year and then surrenders same, is liable for the royalty that accrued during the period he held the lease. Aderhold v. Oil Well Supply Co., 158 Pa. St. 401; 28 Atl. Rep. 22.

2 And it is no defense that wells in the vicinity showed that such wells would have been unproductive. Gibson v. Oliver, 158 Pa. St. 277; 27 Atl. Rep. 961.

3 Cochran v. Pew, 159 Pa. St. 184; 28 Atl. Rep. 219. Fisher v. Guffey, 193 Pa. St. 393; 44 Atl. Rep. 452.

5 Young v. Vandergriff (Pa.), 30 Pitts. Leg. J. (N. 8.) 39. "Sinking wells on surrounding tracts is not a defense to a covenant to sink same on the demised premises." Jamestown Co. v. Egbert, 152 Pa. St. 53; 25 Atl. Rep. 151.