to the plaintiff. We must take this contract as the parties have made it. They might have stipulated for a different rule. It is our duty to construe the lease according to its plain meaning.

There are several other assignments, but the two referred to raise the pivotal question in the case. We find no error in the admission of the testimony referred to in the first four assignments. Under the construction we have placed upon the lease, it was not error to allow the defendant to prove that the ore could not be mined advantageously, why it could not be done, the cost of mining and putting the ore on the bank, and that, when it was so placed, it was not merchantable. Nor was it error to admit in evidence the papers referred to in the tenth assignment. The object was to prove that, in any view of the case, there was no royalty due under the lease. Upon this ground alone the defendant was entitled to a verdict. The remaining assignments do not require discussion. A careful examination of them discloses no error.

Judgment affirmed.

1. Lessee of water not estopped to deny title. Swift v. Goodrich, 11 Pac. 561; 70 Cal. 103.

Bamford v. Lehigh

11 N. E. 645.

2. Construction of clauses for minimum rent. Zinc Co., 33 Fed. 677; McIntyre v. McIntyre C. Co., 3. Absence of ore no defense to minimum rent. Id. Covenant to take out certain amount of ore is absolute.

32 N. W. 471.

Flynn v. White Breast Co.,

4. Bond and lease-when option exercised and royalty ceases. Flynn v. White Breast C. Co.. 32 N. W. 471.

5. Lessee not entitled to new minerals not mentioned in lease. Erwin's App. 16 M. R. 91.

6. Grant of right to mine for twenty years passes only a leasehold estate. McElwaine v. Brown, 11 Atl. 453.

7. Covenant to work continuously not implied. McIntyre v. McIntyre C. Co., 11 N. E. 645.

8. Agreement to pay royalty if ore found of certain value-question of what proof admissible; and time limit held not conclusive. McCahan v. Wharton, 16 M. R.

9. Royalty on mine worked by receiver is a first charge. Allison v. Coal Creek Co., 9 S. W. 226.

10. Lessees may remove fixtures after forfeiture for non-payment of royalty. Mickle v. Douglass, 39 N. W. 198.

VOL. XVI-8

11. Lease construed as sale. Del. R. R. v. Sanderson, 109 Pa. St. 583; 58 Am. Rep. 743.

12. Lessees have no right to work or not as they see fit. There is implied covenant to work when the only rent is royalty. Rorer I. Co. v. Trout, 5 Am. St. Rep. 285; 83 Va. 397.

13. Deeds and leases. Construction as to whether plaintiff entitled to royalty on all or on a fraction. Rucker v. Wheeler, 127 U. S. 85.

14. Contract by lessee to deliver so much ore or let lessor re-entercontroversy as to payments induced failure. Lessee restored to possession. Foster v. Hecksher, 42 N. J. Eq. 254.

15. Lessee can not recover against trespassers the value of stone taken by them during the term. Baker v. Hart, 123 N. Y. 470; reversing S. C. 5 N. Y. Sup. 345.

16. A co-lessee can transfer or assign his own interest only. Meagher v. Reed, 24 Pac. 681.

17. Construction of lease of contiguous tracts as to what constituted the "mine" demised. Pierce v. Tidwell, 2 So. 15.

18. A contract to work a mine and receive as compensation eighty per cent of the ore, held to be a lease. Pelton v. Minah M. Co., 28 Pac. 310. 19. The lessee having the right to quit on it becoming impracticable to mine more coal, gave notice that he would "surrender as provided for in the lease." Held, that the notice implied a quitting for the cause allowed in the lease. Jenkins v. Clyde Coal Co., 48 N. W. 970.

20. Where a lessor signed receipt reciting that the lease was surrendered, and that the payment was in full of all claims-such receipt is admissible without pleading, shows the termination of the lease, and the landlord can not escape its effects on the allegation of having signed it without reading. Id.

21. Construction of grant of coal and surface rights holding that the grantee could mine coal under adjoining lands, dump slack from the adjoining mines on the demised surface and drain the adjoining ground through the demised land. Genet v. Delaware Canal Co., 122 N. Y. 505.

22. Where a lease provided for a forfeiture on failure to work three weeks, and there was suspension of work for several months, after which work was resumed, the question whether the lessor consented to the resumption of work is for the jury. Wesling v. Kroll, 47 N. W. 943.

23. A coal lease provided lessee should pay so much per ton on the first days of January and July of each year. Held, that the words naming the dates of payments merely fixed dates for settlement and did not bind the lessees absolutely to commence mining before a reasonable time. King v. Edwards, 32 Ill. App. 558.

24. The assignee of oil lease agreed to pay his assignor so much when oil was found in paying quantities. Held, that this did not prevent the assignee from surrendering and taking new leases from the owner, but did not release him from payment if, by any person, oil should be struck during the term of the original leases. Smith v. Munhall, 21 Atl. 735. 25. Delay to tender lease under contract may justify lessee in refusing to accept when offered. Kille v. Reading Iron Works, 21 At. 666.

26. Where the royalty is based on stone shipped the lessor can not

recover for rock quarried but not shipped. Crawford v. Oman Stone Co., 12 S. E. 929.

27. The term "dimension stone" in a quarry lease between parties who were experienced quarrymen must be taken as used in its technical

28. A lessee agreed to commence to bore for gas within a year and to pay an annual rent for all land occupied. But beginning to bore on ground in same region leased from others, was to be considered as compliance with his agreement to bore within a year. He did start his well on the other leases. Held, that he was not liable for the first year's rent, nor at all till he occupied or began to work on the lessors' land. Richardson v. Downs, 16 S. W. 84.

29. Allowing the mine to remain flooded is breach of covenant to mine in workmanlike manner. Cons. Coal Co. v. Schaefer, 25 N. E. 788.

HODGSON V. PERKINS ET AL.

(84 Virginia, 706; 5 S. E. Rep. 710. Supreme Court of Appeals, 1888.)

1Non-assignable lease. An indenture between land owner and certain skilled miners giving them the right to prospect and dig for gold at a fixed royalty, to have and to hold as long as the lessees might deem it worthy of search, creates no permanent estate in the land and is a lease which is not assignable.

Lapse by abandonment. Where a lease, or, as it was claimed to be, a permanent easement in the lands, has been virtually surrendered or allowed to lapse for over forty years and the work on the premises kept up only by persons holding adversely to the alleged right, it is an absolute abandonment, and an accounting or other relief is not to be considered of.

Petition by William B. Hodgson, trustee, claiming under a deed, for part of proceeds of land ordered sold in a suit by Perkins, executor and others, creditors, against D. W. K. Bowles. Judgment was rendered dismissing the petition, and plaintiff appeals.

J. J. A. POWELL, for appellant.

W. B. PETTIT and A. A. GRAY, for appellees.

FAUNTLEROY, J.

This is an appeal from a decree of the Circuit Court of the County of Fluvanna, entered on the 14th day of April, 1887, dismissing the petition of W. B. Hodgson, trustee, filed in the suit pending in the said court under the style of Perkins, Ex'r, et al. v. Bowles et al. The facts material to be stated appear from a transcript of so much of the record in said suit as is necessary to a determination of the matters of error assigned in the petition for this appeal.

D. W. K. Bowles was the owner and occupier of a large farm in the Counties of Fluvanna and Goochland, upon which he believed, as it was generally believed, that there were valua

'See Fairchild v. Dunbar Furnace, 18 Atl. 443; Same ads. same, Id. 444.

ble minerals. He was not, however, a miner, but simply a practical farmer. He desired that his said land should be explored and worked for such minerals. He, therefore, on the 7th day of August, 1834, entered into an agreement with skilled miners as follows:

"This indenture, made the 7th day of August, 1834, between D. W. K. Bowles, of the one part, and George Fisher, Sr., George Fisher, Jr., James Fisher, Dunlop Fisher, and Buford Kirtley, of the other part, witnesseth that the said D. W. K. Bowles, for and in consideration of the sum of one dollar to him paid in hand, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth bargain and sell, unto the said Fishers, etc., the privilege of digging and working for gold, or other minerals, and using any timber or water-power anywhere on a tract of land lying in the Counties of Fluvanna and Goochland, and State of Virginia, adjoining the lands of S. P. Hughes, R. J. Brooks, and others, containing eight hundred acres, more or less, reserving to the said Bowles, his heirs, etc., the right to cultivate and use the said land in the same manner as though this lease had never been executed, provided he does not thereby molest or interfere with the said Fishers, etc., their heirs, etc., in searching and working for gold or other metals; and the said Fishers, etc., hereby agree and bind themselves, their heirs, etc., to pay unto the said Bowles one-fifth part of all the surface gold found on said land; and if the said Fishers, etc., should succeed in finding a vein of gold or other metals on said land, they hereby agree and bind themselves to test such vein to their satisfaction, at their own expense, and when tested, if found to be valuable, to give Bowles one-half of said vein, by his (Bowles) paying one-half the expenses of working said vein; but it is distinctly understood that the said Bowles is to be at no expense until the said vein is tested, further than onesixth part, which one-sixth part the said Bowles hereby reserves to himself, exclusive of the half of said vein or veins, as also one-sixth part of all surface gold found on said land. To have and to hold the said land, except as before excepted, unto the said Fishers, etc., their heirs, etc., so long as they may deem it worthy of searching and working for gold or