cutting of vast quantities of timber, in abuse of the privilege to take such an amount as would be reasonably necessary for the purpose for which the land was leased; 1 but the cases are so numerous in which an injunction will lie to prevent waste, that it is not deemed necessary to dwell on special cases. But equity will not permit an inequitable use of this remedy, where it would work a hardship on the lessee, and if the lessor encourages him to make expenditures and he does so on the belief that the lessor does not mean to prevent him in his labor by the assertion of his legal rights, the latter would be estopped afterward from maintaining his rights to the injury of the lessee, and though he could have recovered his rights in the first instance, if he stands by and sees the lessee make valuable improvements, without objection, he thereby impliedly assents to the same, and cannot afterwards interfere with the same, to the injury of the lessee.2 1 Blanchard & Weeks Ld. Cas., pp. 645, 646, 647; Mitchell v. Dors, 6 Ves. 147; Thomas v. Oakley, 18 Ves. 184; MacSwinney on Mines, pp. 43-57. 2 See for a full exposition of this subject Bispham's Prin. of Eq. (203– 260) under subheads of the Equitable Doctrine of Laches and Estoppel. And it has been a question of some doubt how far the courts would restrain improvements on public land, as against miners thereon, and the courts in the past, in such cases have proceeded cautiously. See Slade v. Sullivan, 17 Cal. 102; Blan. & Weeks Ld. Cas. 646. "The court of chancery has jurisdiction to stay waste in opening mines where the defendant has threatened to open them and insists upon his right so to do." Gibson v. Smith, 2 Atkyns 182; s. c. Barnad. Ch. Rep. 497; M. M. D. 400. For injunction to prevent repetition of waste by cotenant, see Morrison v. Morrison, 122 N. C. 598. But in California it is held a cotenant cannot enjoin the working of a mine by another tenant. McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134. CHAPTER V. ACTION ON THE COVENANT. SECTION 513. When it will lie. 514. Breach of covenant to work. 515. Covenant for quantity. 516. Action for royalty - Dead rent. 517. Covenant of title-Quiet enjoyment. 519. Who can maintain the action. 520. Against joint and several covenantors. 522. Equitable relief against penalties. 524. Set-off and other defenses. The action of covenant § 513. When it will lie. will lie for the breach of any agreement under seal, and damages can be recovered for such breach, whether the covenant is express or implied and appears in a deed-poll, or an indenture.1 The action is particularly applicable, in cases where the damages resulting from the breach have not been specifically calculated, for in such cases the amount of the damages is determined by the jury and the plaintiff can recover damages for the whole amount of his demand; but where the damages are for a specific demand, which can be accurately calculated, the action of debt, at common law, was to be preferred. But it is 1 It existed independent of the right of distress at common law. MacSwinney on Mines, p. 226; Tiedeman R. P., § 849 et sub.; Taylor's Land. & Ten., § 661 et sub.. 2 Wait's Act & Def. (Vol. 2.), p. 353; (Vol. 4) p. 273, and cases cited; Schock v. Anthony, 1 M. & S. 573. 3 Taylor's Land. & Ten., § 663. And where breach amounts to a tort lessor has his election. Ante, idem; Kinlyside v. Thorton, 2 W. Bl. 1111. optional with lessor, in the case of a breach of covenant by the lessee, where the demand is for a liquidated sum, whether he proceeds in debt or in covenant, for any time before an assignment by the lessee and an attornment by the assignee, the lessor can select either one or the other of these actions.1 After an assignment by the lessee, however, he cannot be held on the action of debt, nor could he then be held on the action of covenant, unless the covenant was one expressed in the agreement, for after such assignment he cannot then be held on an implied promise. The lessor can maintain the action of covenant against his lessee for a breach of his agreement to pay the stipulated rent or royalty and he can recover the rent past due, even after there has been a re-entry by the lessor; 3 but where the lessee has been evicted by the assertion of a paramount title, the lessor at common law can sue only in debt, for the recovery of past due royalty, and the lessee cannot be held liable on his personal covenant.4 These distinctions are of course abolished under the code, but in order to thoroughly understand the nature of an action and its 1 Byron v. Johnson, 8 T. R. 410. 2A covenant to deliver up mining works in repair runs with the interest of the owner of the fee, and an alienee of the land may sue for its breach." Martin v. Williams, 1 H. & N. 816; 26 L. J. Exch. 117; 38 Eng. L. & Eq. 462; B. & W. L. C. 432. 3 MacSwinney on Mines, p. 226; Hartshorn v. Watson, 5 Scott, 506; Newton v. Nock, 43 L. T. (N. s.) 197; and see Act 3 & 4 Will. 4, c. 42, S. 28. "Lessors of a mine held entitled to recover, in an action for nonperformance by lessees, only for whatever loss was sustained according as the mine proved profitable or otherwise, and hence not entitled 10 recover the cost of machinery, tools and improvements which defendants failed to supply or make under their contract." Cleopatra Min. Co. v. Dickinson (Wash.), 68 Pac. Rep. 456. 4 Taylor Land. & Ten., § 662; Stevenson v. Lombard, 2 East, 575. But see, contra, Mayor v. Thomas, 10 Q. B. D. 48. application in a given case to attain the proper remedy, they are none the less practical and beneficial.1 § 514. Breach of covenant to work. The covenant to work is one of the most frequent as well as important covenants in every mining lease, and they vary almost as much as the different leases in which they are incorporated, applying alike to the length of time and the quantity of ore to be worked and extracted from the demised mine.? Generally, however, an action on such covenant in damages is the proper and only remedy in case of a breach. If a lessee covenants absolutely to continue work," and "carry on mining operations," he will be liable in an action for damages, in case of a breach on such a covenant, aside from his liability on the covenant for rent and royalty, and notwithstanding the continued working of the mine would have been a useless and unprofitable expense to him. In order to recover on such a covenant, however, 1 See statutes and codes of civil procedure of the different States. 2 See, as to method of working, Lewis v. Fothergill. L. K., 5 Ch. App. 103; as to quantity to be worked, Powell v. Burroughs, 54 Pa. St. 329; Clifford v. Watts, L. R., 5 C. P. 577. 3 Specific performance will not lie for breach. MacSwinney on Mines, pp. 229-230; Wheatley v. Westminster &c. Coal Co., 9 Eq. 53; Booth v. Pollard, 4 Y. & C. Ex. Eq. 61; Pollard v. Clayton, 4 Kay & J. 462. Jervis v. Tomkinson, 1 H. & N. 195; James v. Cochrane, Exch. 170; Marquis of Butte v. Thompsor, 13 M. & W. 487; s. c. 14 L. J. Ex 95; Powell v. Burroughs, 54 Pa. St. 329. But see Clifford v. Watts, L. R., 5 C. P. 577; Ridgway v. Sneyd, 1 Kay, 627. Where lessee has cove. nanted to mine in a way to support the surface and higher strati of mineral he must do so, notwithstanding it is more expensive than is cus tomary. Beattie v. Coal Co., 56 Mo. App. 221. Damages result an an action will lie therefor to recover for failure to bore oil wells agreed to be bored by lessee, but forfeiture cannot be had, without express co venant for the purpose. Harness v. Oil Co., 38 S. E. Rep. 662 (W. Va. 1901); Ammons v. South Penn. Oil Co. (W .Va.), 35 S. E. 104. "Where, in a lease of oil lands, the lessee agrees to complete a sec ond the obligation must be express on the part of the covenantor or lessee, and the mere fact that he had obligated himself in working" the mine, to do and perform certain acts specifically mentioned, would not justify a recovery on such a covenant.1 But where the covenant does impose the obligation to work or mine in a specified way, and he fails to perform the same he is prima facie liable for any damage resulting, and the fact that he has further covenanted to perform other acts would not excuse the breach." Nor would the impossibility of performance, where the covenant was absolute, constitute any defense for the breach, for having assumed the obligation, the law places a duty on the covenantor, and he is bound to make it. good, notwithstanding any accident by inevitable necessity, because he might have provided against it in his contract." " well, within 90 days after the completion of the first well, but does not agree to complete, or even to commence, the first well, such agreement as to the second well is no consideration for the contract." Federal Oil Co. v. Western Oil Co. (U. S. C. C., D. Ind.), 112 Fed. Rep. 373. 1 James v. Cochrane, 7 Exch. 170; MacSwinney on Mines, p. 229; Walker v. Jeffries, 1 Ha. 350; Jervis v. Tomkinson, 1 H. & N. 195. 2 Jervis v. Tomkinson, supra; MacSwinney on Mines, supra. But where the covenant is to work the mine "in a workmanlike manner," and the evidence developed that they had not been worked at all, there is no breach of this covenant. Quarrington v. Arthur, 10 M. & W. 335. 8 Harrison v. Ry., 74 Mo. 371; White v. Ry., 19 Mo. App. 401; McDermott v. Jones, 2 Wall. 1; The Harelman, 9 Wall. 161. And this rule of construction has been applied to covenant to drain a mine, however impossible of performance it may have been. See Brinkerhoff v. Elliott, 43 M. A. 186. The remedy in an ordinary case of an agreement to work a quarry in a particular manner is at law: specific performance refused. Booth v. Pollard, 4 Y. & C. 61; M. M. D. 332. "Custom cannot control the contract of parties as to the working of a mine. A custom to remove coal pillars cannot avail against the terms of a lease, contracting to leave the mine in good working condition." Randolph v. Harden, 44 Iowa, 328; M. M. D. 205. "A covenant in a coal lease to carry on the colliery, in a fair, proper, and orderly manner and according to the best and most approved method of work |