CHAPTER XVI.

FORFEITURES.

SECTION 242. How regarded in equity.

243. Equity will not enforce a forfeiture.

244. Forfeiture distinguished from abandonment.
245. How enforced.

246. Party entitled to must declare election.

247. Notice must be definite.

248. How forfeitures are pleaded.

249. Arising from breach of contract.

250. Clause of in lease.

251. For failure to pay royalty.

252. Under mining license.

253. For failure to work mine.
254. Same-On the public land.
255. Waste a ground of re-entry.
256. How right to claim is waived.

257. Equitable relief against re-entry.

§ 242. How regarded in equity. - Equity will ordinarily grant relief in cases of forfeiture where the damage resulting from the non-performance of the agreement is susceptible of pecuniary measurement and compensation.1 Especially is this true where the forfeiture results from the non-payment of money, or where the failure to perform the act was of no real detriment to the party claiming the forfeiture. But where the forfeiture is the result of the nonperformance of a condition precedent to the vesting of the title, or the enjoyment of the right in the party

1 Bisp. Prin. Eq., § 181, p. 236; Hagar v. Buck, 44 Vt. 285; Palmer v. Ford, 70 Ill. 369; Orr v. Zimmerman, 63 Mo. 72.

2 Bisp. Prin. Eq., supra; Oil Creek Co. v. Grt. West. Ry. Co., 7 P. F. Sm. 65; McKim v. White Hall Co., 2 N. Y. Ch. 510; Clarke v. Drake, 3 Chand. 253; Gordon v. Lowell, 21 Maine, 251.

against whom the forfeiture operates,1 or where it grows out of the breach of a covenant to perform some specific act, unless there are special circumstances calling for interference, a court of equity will not ordinarily afford relief in such cases, for the reason that the damage incurred by the breach is not susceptible of pecuniary measurement.2 There is generally no way to determine what the measure of damage should be, and the court would not grant the relief out of mercy for the promisor, because his covenant was peculiarly hard to perform, or for the mere purpose of saving his property from forfeiture. Nor would equity interfere where the exaction is made for the protection of a vendor, under circumstances where a strictly legal right is claimed, with full notice to the vendee, notwithstanding its general abhorrence to conditions that work forfeitures.4

§ 243. Same Equity will not enforce a forfeiture. Actions by the lessor, to recover possession, because of a

1 Reves v. Foulman, 25 Ala. 452; Wescott v. Minnesota Min. Co., 23 Mich. 145.

2 Bisp. Prin. Eq., § 181, p. 237; Wafer v. Macota, 9 Mad. 112; Reynolds v. Pitt, 19 Ves. 141; Germantown Co. v. Fitler, 10 P. F. Sm. 131; Dunklee v. Adams, 20 Verm. 415; In re Brain, L. R. 18 Eq. 389. 3 Bisp. Prin. Eq., supra.

4 Ante, idem. See also Brown v. Vandergriff, 30 P. F. Sm. 142. Forfeiture must be strictly proved and will be strictly construed. Hammer v. Garfield Min. Co., 130 U. S. 291; Power v. Sla (Mont., 1900), 61 Pac. Rep. 468; Turner v. Sawyer, 150 U. S. 585; Black v. Elkhorn Co., 163 U. S. 445; Emerson ». McWhirter, 133 Cal. 510; 20 Am. & Eng. Enc. Law (2 Ed.), 732 et sub. "The tendency of the courts has been to favor the lessor rather than the lessee, and the old rule that the law abhors a forfeiture has been much softened in dealing with oil and gas leases." George O. Dix, in 48 Cent. Law. Journ. 475; citing Brown v. Vandergift, 80 Pa. St. 142; Elk Fork Oil & Gas Co. v. Jennings, 84 Fed. Rep. 839; Guffy v. Hukill, 34 W. Va. 49; Bretman v. Harness, 42 W. Va. 433; Crawford v. Ritchey, 27 S. E. Rep. 220; Munroe v. Armstrong, 96 Pa. St. 307.

forfeiture of the lease by the tenant, must be brought at law, as a court of equity has no jurisdiction to decree a forfeiture,1 unless conferred by statute. It is a familiar jurisdiction of equity courts to interfere to relieve against the enforcement of a forfeiture, but a court of equity will never use its jurisdiction to enforce a forfeiture.2

§ 244. Forfeiture distinguished from abandonment. While discussing the effect of a forfeiture upon the rights of a claimant on the public land, it may be well to distinguish between the legal effect of a forfeiture of the claimant's rights and an absolute abandonment of the claim. The claim of an original locator may of course be forfeited by abandonment, and his failure to perform the requisite amount of work and labor taken as evidence of an abandonment of the claim,3 but the effect of an abandonment upon the proprietary rights of the claimant, is very different in law from that of a forfeiture.4 A forfeiture can take place without any intent on the part of the locator to release his rights or interest in the claim,5 for the performance of a certain amount of work and labor is in the nature of a condition subsequent, the enjoyment of the posses

1 Hoch v. Bass, 133 Pa. 328; Drake v. Local, 157 Id. 17; Lynch v. Versailes Gas Co., 165 Pa. 518 (1895); In re Brain, L. R. 18 Eq. 389; Plachy v. Somerset, 1 Str. 447; Bowser v. Colby, 1 Hare, 109.

2 Authorities, supra; Messersmith v. Messersmith, 22 Mo. 369; Bisp. Pr. Eq., § 181, p. 238; 15 Mor. Min. Rep. 433; 7 Mor. Min. Rep. 233; 12 Mor. Min. Rep. 669; 12 Idem, 510. See Cole v. Taylor (8 Pa. Super. Ct. 19), where the court holds that an oil lease ought, in equity, to be forfeited, for failure to work for two years.

3 Oreamund v. U. S. G. & S. M. Co., 1 Nev. 309; Strong v. Ryan, 46 Cal. 33; Duprey v. Williams, 26 Id. 309.

4 Richardson v. McNulty, 24 Cal. 339; Blanchard & Weeks Ld. Cas., p. 206, also p. 215 et sub.

5 Blanchard & Weeks Ld. Cas., pp. 215-216; St. John v. Kidd, 26 Cal. 263; King v. Edwards, 1 Mont. 235; Bell v. Bed Rock Co., 33 Cal.

sion depending on the performance of the condition and a failure to perform it operating to defeat his title ipso facto. In order to constitute an abandonment, however, there must always be an intent, on the part of the locator, to abandon his claim; 2 and while a forfeiture can be cured, even after failure to perform the necessary work, by a resumption of the work before the acquisition of adverse rights,3 where a claimant has voluntarily abandoned his rights, his claims thereto are utterly extinguished as soon as the abandonment has taken place. An abandonment should be set up, the same as a forfeiture, in order to be taken advantage of by an adverse claimant ;5 and the intent of the original locator to abandon his claim is a mixed question of law and fact. But an abandonment can be

1 King v. Edwards, supra; B. & W. L. C. 222. It would seem a different rule prevails in this regard between forfeiture for failure to work claim on public land under statute, and the rule applying in cases of breach of covenant, for the latter does not result ipso facto on breach of the condition, but only on the lessor's election, by some decisive act, to take advantage of the clause. See Roberts v. Davey, 4 B. & Ad. 664; s. c. 1 Nev. & Mon. 443; Doe v. Banks, 4 B. & Ald. 401; In re East Hongsberg Co., Biggs Case, L. R. 1 Eq. 309; Mor. Min. Dig., p. 112. But as no third party can enter on a public claim while the original locator remains in possession, the distinction is not of much importance. Bradley v. Lee, 38 Cal. 362.

2 Wiseman v. McNulty, 25 Cal. 230; Richardson v. McNulty, 24 Id. 339; Wilson v. Cleveland, 30 Cal. 192; B. & W. L. C. 216, 224. Lapse of time may be proven as a circumstance to show an abandonment. Mallet v. U. S. G. & S. M. Co., 1 Nev. 189; Waring v. Crow, 11 Cal. 366, 3 Bradley v. Lee, supra; Mor. Min. Rights (4 Ed.), 65.

St. John v. Kidd, 26 Cal. 263; King v. Edwards, 1 Mont. 235; Richardson v. McNulty, 24 Cal. 339; Stephens v. Mansfield, 11 Cal. 365 (cited and commented on in Richardson v. McNulty, supra).

5 In Bell v. Brown, it was held that either abandonment or forfeiture could be proved under the general issue. B. & W. L. C. 224. But abandonment need not be specially pleaded as in the case of a forfeiture Morenhout v. Wilson, 52 Cal. 263; overruling Bell v. Brown, supra.

6 Wilson v. Cleveland, 30 Cal. 192; Richardson v. McNulty, 24 Cal. 339;

taken advantage of under a general denial,' while a forfeiture cannot be taken advantage of even as a defense, unless it is specially pleaded."

§ 245. How enforced. A forfeiture can generally only result from a breach of the condition which was to work a forfeiture of the promisor's rights, or a failure to comply with some provision of the contract which was to render it null and void. Where the parties have agreed upon the causes or conditions which are to terminate the contract, it cannot be terminated on any other grounds but those agreed upon, and the acts or conditions which are to work the forfeiture must actually have been performed, before the rights of the parties under the contract can be disturbed. The parties are held to have contracted with reference to the state of things existing at the time the contract was made; both are entitled to the benefit of the provisions of the contract, and while the one can insist on the right of forfeiture, the other can also claim that the conditions of the forfeiture be per

5

B. & W. L. C. 206. As to circumstances admitted to prove abandonment, see Warring v. Crow, 11 Cal. 366; Mallet v. Min. Co., 1 Nev. 189. 1 Morenhout v. Wilson, supra.

2 Dutch Flat Water Co. v. Mooney, 12 Cal. 534. An allegation of forfeiture is a legal conclusion, the facts must be stated. B. & W. L. C, p. 225; Morenhout v. Wilson; U. S. v. Heth, 3 Crouch, 399, 413; Williamson v. N. J. S. R. Co., 29 N. J. Eq. 311; Martindale v. Warner, 15 Pa. St. 471; Orr v. Rhyne, 45 Tex. 345; Marsh v. Chestnut, 14 Ill. 223; Abington v. Duxbury, 105 Mass. 287; Lucas v. Tucker, 17 Ind. 41.

3 Tiley v. Meyers, 25 Pa. St. 397; B. & W. L. C., p. 438. As to claim on public land, see McGarrity v. Byington, 12 Cal. 427. Where forfeiture is not made a penalty for the breach, damages alone can be recovered. Meyers v. Tiley, 32 Penn. 267; Blanchard & Weeks Ld. Cas., supra.

4 Forfeitures are construed strictly. Van Schmidt v. Huntington, 1 Cal. 70; Coleman v. Clemens, 23 Cal. 248; Bishop Con., §§ 417-418; Taylor v. Paterson, 9 La. Ann. 251.

5 Bishop on Con., § 1337 et sub.