or with the consent of the plaintiff, for in such case he is liable for his share of the cost of improvements and operating expenses. A co-owner, however, who undertakes upon his own responsibility and at his own hazard and expense, to develop a mine or quarry, cannot, generally, be made to account for any share of the profits realized from the expenditure of his own capital, but in such case the rental value of the mine or quarry will be treated as the proper measure of recovery. But where the removal of the ore is the result of a fraud upon a co-owner, as where the operating tenant, in possession of a knowledge of the value of the mineral, to prevent a joint working, misrepresented the true status of the property to an absent tenant and thereby induced him to abandon the joint undertaking, while he himself made large returns, such absent co-owner is entitled to recover his share of the gross receipts of minerals without deduction for expenses, as the wrong-doer cannot take advantage of his own wrong.5 1, Job v. Patton, 20 Eq. 97; Henderson v. Eason, 17 Q. B. 701; Scott v. Nesbitt, 14 Ves. 445; MacSwinney, p. 112. 2 Graham v. Pierce, supra. A life tenant or cotenant who removes oil is liable on the basis of rents and profits and not for mere yearly rental. Williamson v. Jones, 43 W. Va. 562; 38 L. R. A. 694; 27 S. E. Rep. 411. Where the rents and profits exceed the value of improvements, one in possession, in good faith, claiming title, cannot have an accounting for expenditures and taxes paid. Doll v. Gifford, 13 Colo. App. 67; 56 Pac. Rep. 676. See, however, Cheney v. Ricks, 187 Ill. 171; 58 N. E. Rep. 234. An excluded cotenant is entitled to recover, from his cotenant, his proportion of the royalty received under a lease on the common property. Cecil v. Clark (W. Va. 1901), 39 S. E. Rep. 202. On accounting between cotenants, the non-operating tenant is entitled to customary royalty. Fulmer's App., 128 Pa. St. 24; Holbrook v. Harrington, 36 Pac. Rep. 365; Kahn v. Smelt. Co., 102 U. S. 641. 3 MacSwinney on Mines, p. 112; Henderson v. Eason, 17 Q. B. 701. 4 Allen v. Barkley, 14 M. M. R. 246; Early v. Friend, 14 M. M. R. 271. 5 Foster v. Weaver, 15 M. M. R. 551. "In an action by one tenant in common against another the petition alleged that defendant had leased the premises to a tenant, and received the entire rent, and As equity § 611. Restricted to period of limitation. follows the law and a court of chancery will not, usually, grant relief where the action at law would be barred by the statute of limitations, it is held that a suit for an accounting of ore extracted from a mine, will not lie, unless instituted within the statutory period of limitation, since the removal of the ore. But the burden of proving that the action was not filed within the statutory period, after the removal of the ore, is upon the party pleading the statute,2 and if there has been a fraudulent concealment of the fact of the removal, the action could be maintained, although not filed within the statutory period.3 § 612. Laches and estoppel may prevent. It is against common right to permit one to stand by and see his associates expend money, when he has the power to prevent, and afterwards charge them with his undisclosed interest, when their expenditures have not resulted to his advantage. So, laches, for a period short of the statute demanded an accounting. The answer alleged an agreement that defendant should conduct mining operations on the premises, and that plaintiff should be paid in full settlement a specified royalty, and that the same had been so paid and accepted. Plaintiff requested an instruction that, if defendant agreed to carry on mining and drainage operations, in consideration of which plaintiff agreed to accept less than what otherwise would have been his proportion of royalties received from tenant miners for ores mined, and defendant failed to so mine and drain the land, then plaintiff was not bound by the agreement, and could recover the full amount he would otherwise have been entitled to as a tenant in common with defendant: Held, that such instruction was not justified by the petition, and was properly refused." Gregg v. Roaring Spgs. Land & Mining Co. (Mo. Ct. App., Dec. 1902), 70 S. W. Rep. 920. 1 Dean v. Thivoit, 1 M. M. R. 77. 2 Dean v. Thivoit, supra. 3 Ante, idem. Watts' App., 8 M. M. R. 223; Harlow v. Lake Superior Co., 8 M. M. R. 285. of limitations, when aided by other circumstances, will effectually bar a suit for an accounting.1 Laches alone will prevent an accounting between copartners; 2 protect cotenants from the assertion of stale claims, and relieve a life tenant from a suit for an accounting for ore removed, before the expiration of his tenancy. But excusable delay will always be distinguished from laches, and if the failure to file suit can be reasonably accounted for, or if it appears that fraud or concealment has been used by the defendant, the plaintiff's action will not be barred.6 1 Evans' App., 8 M. M. R. 255; Ernest v. Vivian, 8 M. M. R. 205. 2 Slemmer's App., 11 M. M. R. 438. 3 Phillipps v. Homfrey, 14 M. M. R. 678. 4 Bagot v. Bagot, 15 M. M. R. 130. 5 Stockbridge Co. v. Hudson Co., 13 M. M. R. 121. • Warren v. Daniels, 6 M. M. R. 436. A petition in a suit for accounting that does not allege demand on defendants and refusal to account, is bad, on demurrer. Kemp v. Merrill, 92 Ill. App. 46. CHAPTER XIII. SPECIFIC PERFORMANCE OF MINING CONTRACTS. SECTION 613. Will lie for sale of mine. 614. Exhausted mine on quarry. 615. Sudden appreciation of property. 619. Sale of corporate stock. 620. As regards mining easements. 621. Enforcement discretionary with court. 624. When mistake a defense. 625. Delay bars enforcement. 626. Waiver of performance. The action of spe § 613. Will lie for sale of mine. cific performance will lie to compel compliance with a contract for the sale of a mine or quarry where the contract would be susceptible of enforcement, were the subject-matter any other character of real property.1 The contract must have all the essentials of a legal, subsisting agreement and be free from ambiguity and uncertainty,? or inequality. If contrary to the provisions of the statute of frauds, or if the vendee had been guilty of any concealment, fraud, or misrepresentations to procure the agreement; or if unconscionable to enforce it, its perform 1 Buckinghamshire v. Ward, 3 Atk. 385; MacSwinney on Mines, p. 196; Welland v. Huber, 13 M. M. R. 363; Belle Queen Mining Co. v. Tuggle, 5 M. M. R. 464. 2 Lancaster v. DeTrafford, 31 L. J. Ch. 554. 3 Fothergill v. Phillipps, 6 Ch. 770. 4 Cheadle v. Proctor, 19 L. T. (N. 8.) 289. t ance would be refused.1 But where the contract is otherwise capable of enforcement, the vendor cannot avoid liability, because of the failure of the vein of mineral, for the vendee is none the less entitled to the property. Nor would a timely application for enforcement be refused, because of the fluctuation in value of the property, due to its speculative character.3 § 614. Same Exhausted mine or quarry. -In In a con tract for the sale of mining land, if the mines or quarries have been exhausted, or partly exhausted, by working; or if the title to the minerals, in place, has been severed from the title to the soil, or a right to work them granted by the owner, he cannot enforce the contract, as against the purchaser, but the latter would be entitled to specific performance, with compensation for the ore taken." But if 1 Haywood v. Cope, 25 Beav. 140; s. c. 6 M. M. R. 499. 2 Jefferys v. Fairs, 4 Ch. D. 448. "Where the vendor of a mining claim, who has entered, has paid for the claim, and obtained a certificate of purchase from the government, tenders a deed in pursuance of his contract of sale, the vendee cannot refuse the deed, and rescind the contract, merely because the vendor has not received his patent for the claim." Bash v. Cascade Min. Co., 69 Pac. Rep. 402. "If representations made in written proposals of sale of stock are true, the subsequent failure of the mine does not impair the right of the vendors to enforce the contract." Crump v. U. S. M. Co., 7 Gratt. (Virg.) 362; M. M. D. 36. 3 Heywood v. Cope, 25 Beav. 140. As to when a failure to account by purchaser in possession will operate to defeat specific performance, see Clarne v. Grayson, 30 Or. 111; 46 Pac. Rep. 426. Specific performance will not be decreed where the contract provides for forfeiture of purchase money and all rights under the contract. Henry v. Mayer (Ariz.), 53 Pac. Rep. 590. 4 Seaman v. Vawdrey, 16 Ves. 390; Bortan v. Downs, Fl. & K. 505; Martin v. Cotter, 3 J. & L. 496; Hayford v. Criddle, 22 Beav. 480; Rams den v. Hurst, 27 L. J. Ch. 482. Pretty v. Lally, 26 Beav. 606; Upperton v. Nickolson, 10 Eq. 228. Mawson v. Fletcher, 6 Ch. 91; "Upon bill for specific perform |