the same, evidence would be admissible to prove that it was customary in the district to regard water of a certain depth in the shaft, as equivalent to solid rock, covering the entire bottom of the shaft. But where the promisor has failed to perform his part of a contract to sink a shaft, he cannot, under the contract, claim relief from a condition, waiving his right to remove his mining machinery, etc.,2 until he is ready to perform the contract, although he could recover from the promisee, on a quantum meruit, for the value of his services rendered, provided they were of value and were received by the company.3

§ 250. Clause of in lease. Conditions in a lease that work a forfeiture, are, as a general rule, regarded with odium by the courts, and the same rules of construction prevail as in the case of other contracts.4 If the condition is capable of a double meaning, it would ordinarily be carried out in such a way as to obviate the necessity of a for- . feiture, and parol evidence is admissible to explain latent ambiguities, to prove a local rule or custom, local terms and phrases, and to apply the instrument to its subject, but further than this parol evidence is not admissible, except to show fraud, duress or mistake. A lessee who stipu

1 Although a contract is silent on the subject, a custom can be shown to compel timbering. No. 5 Min. Co. v. Bruce, 4 Colo. 293. But party will not, generally, be relieved from covenant. Brinkerhoff v. Elliott,

43 Mo. App. 185.

2 Rollerston v. New, 4 Kay. & J. 640.

3 Bishop on Con. 604.

4 Miller v. Chester State Co. (Pa.), 18 Atl. Rep. 565; 15 Am. & Eng. Enc. of Law, 601.

5 Stone v. Bumpus, 46 Cal. 218; Beaufort v. Smith, 4 Ex. 450; Rowe v. Brenton, 8 B. & C. 758.

Roemer v. Nesmith, 34 Cal. 624.

7 Bishop on Con. 370-377. The lessor's right of forfeiture is not effected by an assignment for creditors by lessee. Potter v. Gilbert, 177

lates, unconditionally, to pay royalty on a certain amount of ore to be taken annually from the mine, will not be released from his contract to pay royalty on the stipulated quantity, even though a settlement has been made for all the mineral taken out.1 But a stipulation to pay royalty, provided a certain amount of ore is found, and that a failure to deliver possession would be taken as an agreement that there was a sufficient quantity of ore on the premises, is not held to be conclusive as against the lessee, but is an admission which throws the burden of proof on him to show that there was not such a quantity.2 A lease providing that the lessee shall pay for a certain quantity of mineral, at the end of each and every year, and that if any of the covenants be not complied with for the term of three months, the lease is to be null and void, is not forfeited by a failure to pay the amount due, at the end of the year, until the expiration of the three months thereafter, and

Pa. St. 159; 35 Atl. Rep. 597. The grantees of a reversion have the same right to take advantage of a forfeiture clause that the original lessor had. Robinson v. Boys, 61 N. J. L. 179; 38 Atl. Rep. 813.

1 Powell v. Burrows, 54 Pa. St. 329; Clarke v. Midland Blast Furnace Co., 21 Mo. App. 58. But see Clifford v. Watts, L. R. 5 C. P. 577. 2 Cook v. Andrews, 36 Ohio St. 174.

3 Hock's App. (Penn.), 24 W. N. C. 27; 17 Atl. Rep. 512. Forfeiture for non-payment of royalty has been upheld in the following cases: Clifton v. Walmesley, 5 T. R. 564; Bute v. Thompson, 13 M. & W. 487; Cooshaw Min. Co. v. South Car., 144 U. S. 550; Lehigh Zinc Co. v. Bamford, 150 U. S. 665; Malsocomson v. Wappoo Mills, 85 Fed. Rep. 907; Wheeler v. West, 71 Cal. 126; Maloney v. Love, 11 Colo. App. 288; Alderson v. Ennor, 45 Ill. 128; Carr v. Whitebreast Co., 88 Iowa, 136; Swan v. Brown, 8 Kan. App. 505; Blake v. Lobb, 110 Mich. 608; Lennox v. Vandalia Coal Co., 66 Mo. App. 560; Diamond Co. v. Buckeye Co., 70 Mion. 500; Wonsetler v. Andrews, 58 Oh. St. 551; Swint v. McCalmont Oil Co., 184 Pa. St. 202; Banna v. Greaff, 186 Pa. St. 648; Smith v. Godfrey (Tenn.), 48 S. W. 303; Cowan v. Iron Co., 83 Va. 547; Coaldale Co. v. Clark, 43 W. Va. 84; 20 Am. & Eng. Enc. Law (2 Ed.), 782.

a stipulation to complete a mine, within a certain time, or pay a certain sum agreed upon, for a failure to complete it according to contract, as the price of the delay, with a proviso that a breach of the two conditions would render the lease void, would not render it void, ab initio, so that a cause of action against the lessor, before the default, or by reason of it, would thereby be extinguished, but the lease would only be void from the date of the default.1

§ 251. For failure to pay royalty. Unless the lease expressly makes it so, a failure to pay the stipulated royalty is not a ground of forfeiture,' and even where the condition is incorporated in the lease, no one but the lessor or his agents, or some one who possesses his rights, can take advantage of the forfeiture.3 And where there is a clause of forfeiture in a lease for the nonpayment of royalty the lessor, at common law, is required to first make a demand of the lessee for the precise sum due, before he can enter upon the premises or claim a forfeiture of the lease; and although the service of a declaration in ejectment is in some of the States held to be equivalent to a formal demand for the royalty, in many of the States the same strict proof of a demand is required by the lessor to enable him to enter and work a forfeiture for the nonpayment of royalty.

1 In re East Kongsberg Co., Biggs Case, L. R. 1 Eq. 309; Roberts v. Davy, 4 B. & Ad. 664. Forfeiture will not result to lessee of oil weli for failure to drill wells agreed to be drilled, unless there is a stipulation providing therefor. Harness v. Oil Co., 38 S. E. Rep. 662 (W. Va.). A ferfeiture is for the benefit of lessor only and lessee cannot avoid liability on a covenant to work, because of his failure. Nat. Gas. Co., 179 Pa. St. 165; 36 Atl. Rep. 216.

2 Gale v. Oil Run Petroleum Co., 6 W. Va. 200.

3 Tiedeman on R. P., § 277 and cases cited.

4 Tiedeman on R. P., supra.

Matthews v. People's

52 Washb. on R. P. and cases cited; Stearns v. Harris, 8 Allen, 598. Osgood v. Abbot, 58 Me 73; Bowen v. Bowen, 18 Conn. 535; Gray v. Blanchard, 8 Pick. 284.

But the courts of later days have always been averse to the common law doctrine of forfeiture, and in order to avert its operation, have frequently employed constructions of a somewhat arbitrary nature. For instance, where there is no provision for a re-entry in case of a default, a failure to pay royalty will not work a forfeiture of the lease, even though there be a covenant in the lease for the payment of royalty, and a condition of forfeiture annexed in case of default. It is plain, however, that this construction is not in conformity with the manifest intention of the parties, but is rather subverting one of the settled doctrines of the law, for the purpose of maintaining the extreme of a doctrine that has grown obnoxious. The better doctrine now seems to be, although the law is substantially the same, that where parties have voluntarily subscribed to the conditions of a lease, a condition of forfeiture, like any other agreement into which the parties. have entered, will be given its proper force, although a strict and perhaps unfavorable construction.2

1 Taylor's Land. & Ten., § 494; Van Rensselaer v. Jewett, 2 N. Y. 147; Kenege v. Elliott, 9 Watts, 258. But see, contra, Horton v. N. Y. Cent. &c. Ry., 12 Abb. N. C. 30, where a clause providing for the termination of the lease on default of royalty, although in the form of a stipulation, was held to be a condition working a forfeiture.

Adams v. Oreknob Copper Co., 7 Fed. Rep. 634; Von Schmidt v. Huntingdon, 1 Cal. 70. See as to forfeiture of shares, In re Cobre Copper Min. Co.'s, Kelk's Case, L. R. 9 Eq. 107; Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80. And the fact that a consideration has been paid would not prevent a forfeiture. Wood v. Leadbetter, 13 M. & W. 838. But a condition working forfeiture, if possible, will be construed as a covenant sounding in damages. McKnight v. Kreutz, 51 Pa. St. 232. And the owner, where the condition is supported, must not enter forcibly, or forcibly put another in possession. McKnight v. Kreutz, supra; Kreutz v. McKnight, 53 Pa. St. 319. Conditions construed strictly. Coleman v. Clemens, 23 Cal. 248; Von Schmidt v. Huntingdon, 1 Cal. 70.

§ 252. Under mining license. The right of the licensee, under a license to mine, has been discussed before, and it has been seen that a mere parol license carries no interest in the land, but is essentially revocable at will, by giving the licensee the proper statutory notice to remove, and before such a license can confer on the licensee any continued right to the possession and enjoyment of the privileges acquired thereunder, it must be reduced to writing, and signed by the parties to be charged.1 And even where the license is reduced to writing, as in the case of an agreement under a mining register, where there are conditions annexed to the enjoyment of the privilege by the licensee,2 such conditions must be fully complied with, before he can acquire any substantial rights thereunder, and on breach of any such conditions the licensor is at liberty to revoke the license, and the licensee could acquire no title, but would be considered as a mere trespasser for such mineral as he might subsequently remove. But

1 Desloge et al. v. Pearce, 38 Mo. 588, and cases cited; Rogers on Mines, 313; Dark v. Johnson, 55 Pa. St. 164; Wheeler v. West, 71 Cal. 126; Harkness v. Burton, 39 Iowa, 101; Riddle v. Brown, 20 Ala. 412. Possession is not an incident of a mining license and licensee can maintain no possessory action. Springfield F. & M. Co. v. Cole, 130 Mo 1; Arnold v. Bennett, 92 Mo. App. 156; Rochester v. Mining Co., 86 Mo. App. 447; Lowe v. Zinc Co., 89 Mo. App. 680. But see Lytle v. James (1903), 73 S. W. Rep. 287.

2 Lunsford v. LaMotte Lead Co., 54 Mo. 426, a leading case, where defendants, under mining register, were held licensees of a revocable license. Rochester v. Mining Co., 86 Mo. App. 447; Fisher v. During, 53 Id. 548. A license, under mining rules, cannot be forfeited, except for cause. The licensee being in by contract, his right can only be terminated by consent or breach of some condition. Bingo Mining Co. v. Felton, 78 Mo. App. 210. A license is but a profit a prendre, and differs from an easement in that it can be held, apart from the possession of the land. Arnold v. Bennett, 92 Mo. App. at p. 159; Lindley on Mines, Sec. 860; Bainbridge (4 Ed.), 510; Fuhr v. Dean, 26 Mo. 116; Chitwood v. Lanyon Zinc Co., 93 Mo. App. 225.

3 And it would not be a good defense to such action that the licensee