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The controverted point in the case was, whether appellees had completed the shaft according to the contract, and left it in good condition for mining coal. On this question a great number of witnesses were examined on both sides, all, or nearly all of them of large experience in this kind of work. The evidence is totally irreconcilable. It would justify a verdict either way. We can not undertake to say which set of witnesses the jury shonld believe. This would be to invade the province of the jury, which we have neither the right nor the inclination to do.

Appellees gave notice on the 20th of November, the shaft was completed, but appellant did not then examine it with a view of accepting or rejecting the work. One reason assigned is, it was full of water and the examination could not be made. As to whose fault it was the shaft was filled with water, the testimony is as conflicting as upon any other point. Appellees attribute it to the company's superintendent in removing the suction pipe used with the steain pump. Without it they could not keep the water down. There is evidence in the record, if the jury gave credence to it, that tends to support this theory of the case.

Conceding the fact as found by the jury, that appellees really completed the shaft and left it in good condition for mining coal, they could not be prejudiced by the fact there was no formal acceptance by the company. Many witnesses of large experience, whose judginent on such a question was entitled to respect, say the shaft was a good one and was capable of being worked; if so it was the duty of the company to accept and pay for it.

The court excluded testimony offered to prove the condition of the shaft in the month of January following. We see no error in this. Its condition at that time would not show what its condition was at the time appellees claim to have finished and tendered it to appellant. The company ought to have caused the examination to be made at once. There is evidence that tends to show it could have been made then had not the section pipe been removed. Appellees insist that they had no means of keeping the water down after its removal.

Inquiry as to its condition in the month of January would have involved an extended investigation whether permitting

water to stand in the shaft would not tend to injure or destroy it. The examination should have been made when appellees tendered the work to the company, or within a reasonable time thereafter, and the evidence was properly confined to its condition at that time.

We have carefully examined this entire record, and we fail to perceive any satisfactory reason for reversing the judgment. The case was fairly presented to the jury, and we can not say their conclusion is not warranted by the evidence, nor that the verdict does not do justice between the parties. The judgment must be affirmed.

Judgment affirmed.

Koch's AND BALLIET'S APPEAL.

(93 Pennsylvania, 434. Supreme Court, 1880.)

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Lease of mine implies covenant to work with reasonable diligence.

Where a right to mine iron ore or other minerals is granted, in consideration of the reservation of a certain proportion of the product to the grantor, the law implies a covenant on the part of the grantee to work the mine in a proper manner and with reasonable diligence, so that the grantor may receive the compensation or income which both parties

must have had in contemplation when the agreement was entered into. ? Remedy at law for failure to work mines. Where lessees, or parties

holding mines under implied covenant to work, have neglected and refused to work the mines with reasonable diligence, it is very clear that the owners have a complete and adequate remedy at law for the recovery

of such damages as they may have sustained. • Damages allowed in equity, only as an incident. Where proper ground

for equitable relief is laid and sustained, and jurisdiction has thus attached, courts of equity will proceed to award compensation or damages when they are incidental to such relief, Lut not otherwise. Appeal from the Court of Common Pleas of Lehigh County.

Bill in equity filed by Benjamin Guth and others, heirs and administrators of Daniel A. Guth, deceased, against John

Sharp v. Wright, 28 Beav. 150; Post Lacties; Brainerd v. Arnold, 27 Conn. 617, Post LEASE.

? Wheatley v. Westminster Co., L. R. 9 Eq. 538, Post LEASE. 3 Ackerman v. Hartley, 1 M. R. 74.

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Koch, Sr., Lewis B. Balliet, executor of Stephen Balliet, deceased, and Edward H. Balliet and others, heirs of said Stephen Balliet, deceased.

The bill alleged in substance:

1. That on August 23, 1842, Daniel A. Guth, since deceased, entered into an agreement with Christian Pretz and others as follows: “For the consideration hereinafter mentioned, the said party of the first part hereby covenants, grants and agrees, to and with the said parties of the second part, that he, the said party of the first part, will and does hereby grant, permit and allow the said parties of the second part, their heirs, executors, administrators and assigns, the exclusive right and privilege to open pits, sink shafts, mine, and make all necessary work for mining and for mining purposes, in or upon all or any part of all that tract or parcel of land owned by said party of the first part, situate in the township of South Whitehall aforesaid, for the purpose of digging and mining iron ore, and all other kinds of minerals and ores, and to mine, dig, take away from said land, sell, use and dispose of iron ore, and all other kinds of minerals and ores, the said parties of the second part, their workmen and laborers, to do as little damage to the land, wood growing thereon, and premises, as the nature and proper proseention of the proposed undertakings will permit. In consideration whereof, the said parties of the second part, promise and agree to give and deliver to the said party of the first part, or to his heirs, executors, administrators or assigns, the one sixth part of all the iron ore, and of all other ores and min. erals, which they, the said parties of the second part, their heirs, executors, administrators or assigns may move, dig, or cause to be moved or dug froin, in or npon the said land, the one sixth part to be delivered at the mouth or mouths of the pit or pits free and clear of all expenses to him, the said party of the first part, his heirs and assigns. The remaining five sixthis parts of all the aforesaid ores and minerals to belong to and be the property of the said parties of the second part, their heirs, executors, administrators and assigns. And the said party of the first part further agrees, that the parties of the second part, may if they deem necessary, erect one or inore buildings for the accommodation of those employed in the mines, upon said land, provided that if at any time the said parties of the second part, their executors, administrators or assigns shall finally abandon the working of said mines, the said party of the first part shall have the first chance to purchase such buildings, and if a price can not be agreed upon, then said building or buildings shall, at the expense of the said parties of the second part, their executors, administrators or assigns, be removed from said lands. And it is further agreed, that if limestone shall be rnined or quarried upon said lands by the said parties of the second part, their executors, administrators or assigns, they may sell the same, paying one sixth part of the proceeds of sale to said party of the first part, his heirs or assigns.”

2. That on the fifth of December, 1851, the parties of the second part in the above agreement, assigned and transferred to John Koch, Sr., and to Stephen Balliet, now deceased, all their rights and privileges under said contract.

3. That under and in pursuance of the aforesaid contract, and in carrying ont its object—the mining and raising of iron ore and other ores and minerals-John Koch, Sr., and Stephen Balliet, and his legal representatives, built, erected and maintained extensive machinery and improvements, and sunk pits and shafts for inining purposes, and for thirty years or more, dug, mined, raised and disposed of large quantities of iron ore, paying to the persons entitled thereto, the one sixth part of said ores, averaging abont $3.500 annually.

4. That about the 1st of April, 1872, the respondents, without any cause, and in violation of the terms of the aforesaid contract, entirely ceased and abandoned the digging, mining and raising of iron ore, and other ores and minerals, upon the said premises, and the delivery of any portion thereof to complainants, and have persistently and without cause ever since said date, continued their abandonment, by reason whereof your orators are deprived of all income and rental from said lands.

5. That althongh repeated offers have been made by responsible parties to the respondents to work and operate the said mines on terms as favorable to the respondents as can reasonably be had, all such offers have been refused, and notwithstanding complainants have often requested and notified the respondents to resume said mining operations, or surrender or rescind the aforesaid contract, they have refused, and still refuse, to comply. And your orators aver that they are inforined, and believe, that respondents do not intend to carry out the purposes and intentions of the said contract.

6. And further, that there is on said described tract of land a large and valuable bed of iron ore, which can be profitably worked.

In consideration whereof, and as complainants can have no adequate remedy at law, they pray that the court may decree and direct “that the aforesaid respondents, within as reasonable time as to the court may seem meet and proper, shall proceed to dig, mine and raise iron and other minerals upon said land, and deliver the one sixth part thereof to complainants, according to the spirit and intent of the said contract or agreement; or, in default thereof, to cancel rescind and deliver up the aforesaid contract or agreement."

The respondents demurred to the bill on the ground that the complainants had an adequate remedy at law.

The court overruled the demurrer, when respondents filed an answer which (1) admitted the first and second paragraphs of the bill to be substantially true, but averred that on the 2d of March, 1818, there was executed a supplemental agreement between Daniel A. Guth and C. Pretz, as agent and partner of the Guth Mining Company, wherein it was stipulated that as the mining company had built certain buildings on the lands, it was agreed that Guth should pay one half the taxes; that the coinpany should pay Guth rent for the land on which the buildings were erected, and the gardens attached thereto; that if the ores should become exhausted, or the company at any time should see fit to surrender its lease, and the parties should fail to agree upon the price at which Guth should take said houses, that they should resort to a method of appraisement which was set forth in the agreement. And the answer averred that this supplemental agreement was included in the transfer alluded to in the second paragraph of the bill.

2. The answer admitted the mining and raising of iron ore by respondents' subtenants and lessees, mentioned in paragraph third of plaintiffs' bill, but they denied that they

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