The last clause referred to the payment of $1,200 a year as well as to the three-eighths of a cent per bushel. Payments of $100 fell due on the twentieth of each month, and could be sued for

as they fell due. The provision that lessee should pay $1,200 a year whether coal was mined or not, was a reasonable one, and could be enforced as liquidated damages. It is not necessary, in order to recover this rent, to allege and prove that there was minable coal that defendant ought to have taken out, in the absence of any covenant as to the extent of the coal in the land leased.

Indiana.

McDowell v. Hendrix, 67, 513 (1879).

Royalties and

rent accruing on a lease of land, for the purpose of mining for coal, after the death of the lessor go to the heir and not to the executor, and those accruing before the death go to the executor.

Iowa.

Reed v. Beck, 66, 21 (1885). Lease of land for mining purposes provided for the payment of a royalty on coal mined and taken out by the lessee, and an agreement by the lessee to mine to an extent necessary to make the rent $500 a year. And in case the rent or royalty for coal mined during any period of six months should amount to less than $250, the lessee agreed to advance the difference, to apply, however, on future royalties, and also "on the first day of each month (after the shaft is opened and mining commenced) to pay the lessor the amount due from the previous month." Held, that though an action might lie against the lessee for failure to open the mine, an action to recover rent would not lie until the shaft was opened and mining commenced.

Steele v. Mills, 68, 406 (1886). The assignment of the monthly royalties payable as rent under a coal lease is not the assignment of an open account (Code, sec. 2087), but of a right under a contract (Code, sec. 2082), and the assignor is bound only by equities which the lessee had against the assignor before notice of the assignment, and not by equities arising before suit was brought upon the assignment.

Carr v. Whitebreast Fuel Co., 88, 136 (1893). Lessee was to pay a royalty upon the clean, merchantable salable coal, but none upon nut, pea, and slack coal. The means used at the time the lease was made for separating the lump from the fine coal, including the screens, were found to be ineffectual for the purpose, and screens of another pattern were adopted. Held, the change of screens was authorized by the facts, and in any event the lessor had no ground of complaint, in the absence of proof, that his royalty was reduced thereby.

Cross v. Tome, 14, 247 (1859). The rent of a quarry Maryland. at a certain number of cents per perch (the amount varying with each and every perch of stone quarried) is a certain money rent within the meaning of the act of 1834, ch. 192, regulating the mode of distraining for rent.

Missouri.

Austin v. Huntsville C. & M. Co., 72, 535 (1880). The recovery of judgment for rents by a lessor against lessee of coal does not vest the property in the coal in the lessor, the recovery being upon the terms of the lease, not upon entry. This is true whether the judgment is satisfied or not.

Ohio.

Burgner v. Humphrey, 41, 340 (1884). The compensation of the grantor under the terms of the contract was to be regulated by the amount mined, which was to be ascertained by reference to the

bills of the diggers and the books of the grantees. Upon allegation that the former were destroyed and the latter false, evidence of engineers was admissible to prove the number of acres mined and the number of tons which each acre should yield, to show the inaccuracy of the books. Greenough's Ap., 9, 18 (1848). A claim for money, Pennsylvania. payable as rent, by a co-tenant for the privilege of taking coal out of a mine at so much per cubic yard, is a preferred debt. "The question then is, whether the appellant's claim was a privileged one; and that depends upon the nature of their contract with the decedent. It was the grant of the right to mine coal at so much per ton; and the redditus was consequently a certain rent for which a distress might have been made. In substance, it was as distinctly a lease as that in Offerman v. Starr; nor is that case distinguishable from this in any respect, except that in one the lease was to a co-tenant, and in the other it was to a stranger. But it is certain that one joint tenant or tenant in common may lease his part to his fellow."

Tiley v. Moyers, 43, 404 (1862). Where the rent of a coal bank is for the first year, the putting of the bank in good order and thereafter a fixed sum per bushel mined, and by the terms of the lease no one else was to have the privilege of taking coal, it is not an eviction for the lessor to enter and take coal from the bank without interrupting the actual operations of the lessee. But such action was a breach of covenant entitling the lessee to set off damages in an action for rent. The rent was not the consideration of the possession, but the equivalent of the coal actually taken.

Sillingford v. Good, 95, 25 (1880). One who leased a coal tract on royalty made monthly returns, purporting to be correct statements of coal mined and payments thereon, which were received without objection. These were conclusive on the lessor, in the absence of full and satisfactory evidence of fraud or mistake. They were in the nature of settlements.

Duff's Ap., 21 W. N. C. 491 (1888). Where a tract of coal land is let for mining purposes at an agreed rate of royalty per ton, the royalty has none of the qualities of rent. It is not paid for the use of the tract by a tenant, but for the coal, the chief article of value in it, by a purchaser. Royalties are a part of the corpus of the estate, and not a profit issuing out of it. Every ton of coal mined reduces the value of the tract and lessens the security of a mortgage upon it.

Fairchild v. Fairchild, 9 Atl. Rep. 255 (1887). A demise of all the coal under the surface of a specified piece of land is a sale of the coal, and the sums due by the lessee to the lessor as royalties are not rents, but purchase-money of real estate. Royalty accruing after lessor's death is collectible by his administrators and distributable as personalty. It is not the profits of realty, and is not the subject of curtesy. Oram's Estate, 5 Kulp, 423 (1889), Com. Pleas. Royalty on coal lease, in syllabus called a contract for privilege of mining coal," is rent, and, as such, the landlord is entitled to a preference therefor out of proceeds of sheriff's sale.1

Drake v. Lacoe, 157, 17 (1893). By the terms of a coal lease lessee agreed to pay ten cents per ton "miner's weight" for all coal 1 A contrary view is taken in a dictum by Penrose, J., in Heckman's Est., 15 Pa. C. C. R. 264 (1894).

mined. In the absence of evidence of an agreement as to a different meaning, this is "such quantity of coal as was computed at a ton in paying the miner who mined by the ton." The master found from the evidence that it meant such quantity of coal, slate, and dirt as was agreed upon between the operators and miners to be sufficient to make a ton of prepared coal. It appeared that about twenty per cent of the mine wagons' contents was deducted as worthless, and the miner was paid for the remainder as coal. The lessees paid royalties on the number of tons prepared for market in this way. The lessors received full statements of the coal thus mined during all the years that returns were made to them, and made no objection as to their accuracy until suit was brought. Held, that they could not recover for a greater number of tons.

Lehigh & Wilkes-Barre C. Co. v. Wright, 177, 387 (1896). A lease of all the coal in a certain tract until it should be mined and removed, contained an agreement to pay a royalty and also an annual minimum rental, whether coal was mined or not, and a provision for forfeiture for failure to do so. This was a sale of the coal, and the rental was the purchase-money therefor. But the duty to pay was absolute and not dependent upon the existence of a corresponding amount of coal. The continuance of the estate depended on the payment of the rent. A failure to pay ended the estate.

Shoemaker v. Mt. Lookout C. Co., 177, 405 (1896). Lessees in a coal lease were to pay a royalty of twenty-five cents per ton "when such coal sells at an average of two dollars per ton or less at the breaker, and when the said coal shall sell at the breaker for more than two dollars per ton," then an additional royalty of twenty per cent of such excess. In calculating the price at the breaker lessees were entitled to deduct commissions paid to sales agents. This applied to a commission paid to agents in consideration of their relinquishing a contract so that lessees might have the advantage of selling direct.

Collins v. Mechling, 1 Super. Ct. 594 (1896). By the terms of an oil and gas lease the lessee was to pay the lessor $10 a month until the completion of the well, and one-eighth of the product when it was less than one hundred barrels a day; and it was also provided that if the well should produce oil in paying quantities, the lessee should pay $600 in thirty days from the time the well was completed. When the well was completed, it commenced to flow at the rate of twenty barrels an hour, and continued with a decreasing product for about four months, when it entirely ceased to yield. Held, that the lessor might recover the $600. The intention was that it should become due if the well produced during thirty days such an amount as would render it profitable to operate it during that period. It was not necessary that it should produce enough to repay the cost of sinking the well.

Childs v. Hurd, 32, 66 (1889). Where lands are

West Virginia. leased for the purpose of mining coal and iron in consideration of a royalty which is to be paid before the coal or iron is removed from the premises, the lessor is entitled to be paid before the mortgagee of the lease, out of any funds in the hands of the lessee's agents arising from the sale of coal and iron and paid into court.

The lessee was treated as a mortgagor in possession who was entitled to rents and profits as against the mortgagee, the lien of the latter affecting only the corpus of the estate.

III. THE PREMISES.

A. Rights growing out of the Description or Nature of these or Incident thereto.

The general rules governing the construction of the description in conveyances are applied in the case of mining leases. Where there is any doubt as to what has been demised, the question is one of intention which must be determined by construing all parts of the lease together. Where boundaries are given with reference to fixed and known objects, they control courses and distances.

Whenever disputes occur because of some ambiguity arising out of a vague description of the premises which are to be mined upon, or from the peculiar nature of these, the Courts endeavor to effectuate the intention of the parties at the time of making the lease.

But on the other hand, when it is plain from the written clauses that operations are to be conducted upon certain designated and described sites, the lessee will be made to carry on his operations within these boundaries, and parol evidence is inadmissible to show the contrary in the absence of fraud or mistake. In the case of oil leases, however, where the lessee is restricted to operating at designated sites on the premises, he has the protection of the entire premises; no one else may bore thereon. Sometimes such a protection outside of the premises is conferred in terms by the lease. The extent of the demise often becomes a question of fact for the jury, but only when the meaning of the language cannot be determined from the instrument itself, but can be arrived at only by ascertainment of surrounding circumstances. Then the question is one not of construction, but of the solution. of a latent ambiguity, existing in words which of themselves are plain in meaning.

Pierce v. Tidwell, 81, 299 (1886). The Tidwells agreed Alabama. with Pierce for the consideration of $20 per month, to give him, his heirs and assigns, "the exclusive right to possession of all minerals that underlie their land which forms part of the mine called and known as the P. W. Coal Mine," and to all the timber growing thereon suitable for mining purposes; also a right of way to and from the mines whenever required. It was further agreed that "the said $20 shall be paid only as long as the said mine is worked to advantage." Held, the words "said mine mean the P. W. Coal Mine, and not merely the part of it upon the Tidwell tract.

P. mined on three tracts, the Tidwell being one, his whole operation being known as the "P. W. Coal Mines." Having exhausted the coal on the Tidwell tract, he continued to use the right of way over it, but refused to pay the sum of $20 per month agreed. Held, he was bound to do so, so long as he worked the P. W. Coal Mine to advantage or profit.

Dietz v. Mission Transfer Co., 95, 92 (1892). A deed California. of a part of a tract of land excepted "all oils, petroleum, asphaltum, and other kindred mineral substances," and "the right to erect machinery, sink wells, bore, tunnel, dig for, work on and remove the same from the premises," also rights of way, and to lay pipes.

The grantee of the balance of the tract and the reserved minerals was not confined to those portions where there were surface indications of oil, but might go upon the land to develop it and ascertain whether oil exists.

Kamphouse v. Gaffner, 73, 453 (1874). Where boundaries Illinois. are given with reference to fixed and known objects, they

control courses and distances.

A lease of a one-half interest in that part of the lands of the estate of K., between G.'s "sand level and the range he is working now. Said claim is seventy-five feet wide, and is known as the old B. and R. Range. The ground hereby leased fronts on the slough, and shall run from thence east on all the lands of said K. estate." "East" does not necessarily mean due east, but is controlled by the previous words designating the location. Evidence is admissible to show the location and course of the range already being worked by the lessee, for the purpose of applying the lease to its proper subject-matter, and explaining a latent ambiguity. The mines involved in this case were lead mines, upon the sides of a series of bluffs, the usual mode of mining which was by running levels or drifts horizontally from the slough into the bluffs, the ore being found in crevices in the rocks running back from the base of the bluffs. The position which seems to have the approval of the court is, that G., who started from a point on the bluff within the frontage named in his lease (in general form as above), might thence follow the crevice or range in an easterly direction though it crossed beyond a due east and west line extending from the point of the lessee's frontage nearest G.'s possession.

Indianapolis N. G. Co. v. Kibbey, 135, 357 (1893). The Indiana. owner of a tract of eighty acres granted to K.'s assignor twenty feet square of the same "for the purpose and exclusive right of a gas well on said twenty-foot square tract,' with rights of way over and through the entire tract. The grantor further covenanted "not to drill or suffer or permit others to drill or put down any other gas well or wells on any part of said entire eighty-acre tract," except a single well for residence purposes for himself or his neighbors.

K. was entitled to an injunction against a stranger who had entered upon the eighty-acre tract and was sinking a gas well. He had a right to all the gas under the eighty-acre tract that could be obtained by boring within the twenty-foot square, save that which might be obtained from one well for the domestic use of the owner and his neighbors.