or does any other act which the law would constitute a recognition of the continued existence of the tenancy.1 And the lessor may, in many instances, by his overt acts, be afterward estopped to claim the right of forfeiture, as against the lessee, although his acts do not amount to an absolute recognition of the lessee's rights under the lease.2 As where the lessor stands by and sees the lessee make subsequent discoveries and expenditures, without objection, which are much more valuable than the damages resulting from his breach.3 On this doctrine, it has been held, where a lease provided for the boring of several mines, at stated intervals, the premises to be forfeited by the lessee for a failure to put down a certain mine, within the time stipulated, that the lessor had waived his right to insist on a forfeiture for a breach of this condition by his previous acquiescence in the lessee's failure to put down other preceding mines within the period prescribed. But where there has been a clear breach of the condition by the lessee, the lessor will not ordinarily be estopped from claiming the forfeiture, unless his acts amount

1 Taylor's Land. & Ten. 497; Maurice v. Millen, 26 Barb. 42; Bacon v. West. Tr. Co.. 53 Ind. 229; Newman v. Rutter, 8 Watts, 51. It is the better doctrine that the royalty or rent, to constitute a waiver, must have occurred subsequent to the breach. Tiedeman R. P., § 277 note; Taylor, 497, note; Jackson v. Allen, 3 Cow. 220.

2 Doe v. Allen, 3 Taunt. 78; Wilgus v. Whitehead, 89 Pa. St. 131; Doe v. Maux, 4 B. & C. 606; Taylor, § 498. Lessor will be held to waive forfeiture of oil lease where for six days he fails to give notice and the lessee, in the interum, makes extensive improvements. Lynch v. Fuel Gas Co., 165 Pa. St. 518; 30 Atl. Rep. 984. Mere delay on the part of the lessor is not, ordinarily a waiver of the right to claim a forfeiture. McKnight v. Kreutz, 6 M. M. R. 305.

3 Doe v. Allen, 3 Taunt. 78; Taylor, § 498; Clark v. Hart, 6 H. L. Cas. 633; Hart v Clark, 6 DeG. & M. G. 232. See also, where default is mutual, Doe v. Morris, 2 Taunt. 52; Mor. Min. Dig., p. 113.

4 Duffield v. Hue, 129 Pa. 94; 47 Phil. Leg. Int. 248; 25 W. N. C. 32; 18 Atl. Rep. 566; Galey v. Kellerman, 123 Pa. 491; 16 Atl. Rep. 474.

to a recognition of the continued existence of the lease; 1 and if the clause working the forfeiture results from a failure to pay royalty within the stipulated time, the receipt of royalty by the lessor, after knowledge of the breach, is not held to constitute a waiver of his rights to claim the forfeiture, provided the causes of the forfeiture continue to exist.2 And in all cases where the lessee attempts to show a waiver of the forfeiture, by producing receipts for the payment of royalty, given him subsequent to the breach, by the lessor, the receipts do not create an estoppel as to the correctness of the amount paid; 3 and they will not amount to a waiver, unless given by the lessor with full knowledge of the facts.4

§ 257. Equitable relief against re-entry. Equity will not grant relief in all cases of forfeiture resulting from a lessee's breach, and where the demised premises are used for purposes other than those agreed upon, or where a way is put through the premises, contrary to an express covenant, the lessee cannot claim relief from the consequences of his acts by recourse to a court of equity.5 And, generally, whenever the breach results from a willful failure or neglect of the lessee to perform his covenant, and when the injury resulting to the lessor from

1 Taylor's Land & Ten., § 498 et sub.; Doe v. Allen, 3 Taunt. 78; Henry v. Tupper, 29 Vt. 56.

2 Taylor's Land. & Ten., § 500; McGlynn v. Moore, 25 Cal. 384; Farwell v. Easton, 63 Mo. 446.

3 Taylor's Land. & Ten. 497; Welder v. Ewbank, 21 Wend. 587; Greenl. on Evid., § 305, p. 395, et sub.

Dunham v. Haggerty (Pa.), 1 Cent. 600; Gornet v. Finney, 40 Mo. 449; Jackson v. Schultz, 18 Johns. 174; Bank v. Mitchell, 73 N. Y. 406; Taylor, § 497, p. 83.

Equity, generally, will neither

Taylor Land. and Ten., p. 82, § 496. relieve against or enforce a forfeiture, but will leave the parties to their legal remedies. Tiedeman R. P., § 279, p. 188.

the breach, is not susceptible of pecuniary compensation, a court of equity would refuse to grant relief from a forfeiture incurred by such breach.1 But where the breach occurs through a mistake of the lessee, or by reason of an accident, which it was not his legal duty to have avoided, a court of equity would interfere to prevent a forfeiture of the premises, and the equivalent of the injury in money would be decreed to compensate the lessor for the damage resulting from the breach.2 The clause of re-entry is inserted principally for the lessor's benefit, as a means of enabling him to enforce the forfeiture, and although the doctrine of compensation does not apply in cases where the lessor's injuries are not a matter of computation, where the extent of the injuries can be calculated, courts both of law and equity would interfere to protect the lessee from the forfeiture, even though there had been an entry by the lessor, and all the common law formalities of a forfeiture had been complied with.3

1 Bisp. Prin. Eq. 181; Davies v. Morton, 2 Ca. in Ch. 127; Rolfe v. Harris, 2 Price, 206; Cage v. Russell, 2 Vent. 253; Taylor's Land. & Ten., § 296.

2 Baxter v. Lansing, 7 Paige, 350; Gregory v. Wilson, 9 Hare, 683; Nokes v. Gibben, 3 Drew. 681; Taylor's Land. & Ten., supra; Warner v. Bennett, 31 Conn. 438; Skinner v. Dayton, 2 Johns. Ch. 526; Williams v. Angell, 7 R. I. 152. Equity will relieve against forfeiture resulting from failure to pay money, unless lessees conduct has been inequitable. Sunday Lake Co. v. Wakefield, 72 Wis. 204; 16 M. M. R. 97.

3 Goodright v. Noright, 2 W. Bl. 746; Story's Eq., § 1314; Hill v. Barclay, 16 Ves. 402; Wilson v. Jones, 1 Bush, 173; Baxter v. Lansing, 7 Paige, 350; Taylor's Land. & Ten. 495. For relief from forfeiture in equity, see South. Penn. Oil Co. v. Edgell (W. Va. 1900), 37 S. E. Rep. 596.

CHAPTER XVII.

MINING CONTRACTS.

SECTION 258. Mining contracts in general.

259. Title bonds.

260. Agreements to prospect for mineral.

261. Agreements to lease.

262. Contract to purchase.

263. Covenant to work mines.

264. Contract for sale of ore.

265. Lease construed as contract of sale.

266. Assignment of royalty.

267. Time of the essence of mining contracts.

268. Contracts of mining partnerships.

269. Contracts of mining corporations.

270. Contract to test for mineral.

271. Contract to drain mines.

272. Construction aided by custom.

- The law of con

§ 258. Mining contracts in general. tracts in general applies to mining, the same as to every other branch of business known to the law, and as far as the fundamental principles are concerned, there is no distinction in the application of the law between mining and other species of contracts.1 But although the elementary principles in the law of contracts apply equally to mining agreements, there are some reasons for a separate treatment of this branch of the law, in its relation to the subject of mining transactions, for while these elementary principles can be found in any reliable text-book on the law of contracts, there are many agreements entered into by persons in this vocation, which cannot be found in the ordinary work on contracts, for the reason that they are

1 Wade's Amer. Min. Laws, § 155, p. 221; MacSwinney on Mines, chap. 2.

peculiar in their operation, and as the law consists principally of the adjudged cases on the subject, they could not be incorporated in a general work on contracts, but are left for the consideration of writers on this subject alone.1

§ 259. Title bonds. - The bond given by a miner upon. public land, for the conveyance of his claim, upon the performance of the conditions of the bond, are similar in some respects to a bond for a deed,2 used frequently in the conveyance of real estate.3 These bonds are in the nature of optional contracts.4 The seller therein agrees to convey the title to his claim, within a certain time, for the price agreed upon, provided the purchaser, within the time stated, shall elect to buy the claim, or perform the conditions of the bond.5 The seller can withdraw his offer any time before it is accepted, or the purchase price is tendered by the purchaser,6 and in order to bind either party to the agreement, the option of the purchaser must be based upon a valuable consideration. If it is not based upon a valuable consideration, there must be an unconditional promise to purchase,8 and where the option is

1 Where mining operations are conducted under the "register system," the rules become a part of the contract between the owner and the miner. Empire Zinc Co. v. Freeman, 75 Mo. App. 524; Kirk v. Mattier, 140 Mo. 23; Garver v. Gunther, 51 Mo. App. 545.

2 Wade's Am. Min. Laws, §§ 154, 155; Mor. Min. Rts. (10 Ed.) 228. S Tiedeman on R. P. 236.

438.

Wade's Am, Min. Laws, § 155, p. 221. Finerty v. Fritz, 1 M. M. R.

5 Smith v. Reynolds (U. S. Ct. Dist. Col.), 1 Col. Law Rep. 89.

6 Smith v. Reynolds, supra.

7 Wade's Am. Min. Laws, §§ 154-155, pp. 220-221.

8 "The only title bonds which will be held valid and binding on either party are such as contain an unconditional promise to purchase, or where there is a consideration paid in money or work on the claim for the option." Wade Am. Miu. Law, supra; Mor. Min. Rts. (10 Ed.) 228.