Abstracts of Current Decisions on Mines and Mining: May to August, 1917 Page: 81
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RECOVERY OF ROYALTIES-DEDUCTIONS.
In an action by a lessor to recover a stated annual minimum roy-
alty in a lease providing for the same, but providing also that' there
should be a proportionate deduction for any time that the operations
of the lessee were suspended because of strikes or unavoidable
casualties, an answer by the lessee is not sufficient which states that
the mining operations were suspended because of inability to get
cars because of the refusal of a railroad company to furnish cars,
in the absence of an allegation that the lessee requested cars in time
to have the railroad company furnish them when needed.
Bennett v. Howard (Kentucky), 195 Southwestern 117, p. 118.
WAIVING LIABILITY FOR DAMAGES-RECOVERY OF ROYALTY.
A coal-mining lease provided for the annual payment of a certain
stipulated sum' and provided also that the failure to comply with
certain conditions as to mining should not render the lessee liable
to any damages further than the forfeiture of the lease. An action
on the lease to recover an overdue annual payment is not an action
for damages, but is strictly an action on the contract based upon the
express agreement to pay.
Saylor Park Land Co. v. Glenwood Coal Co. (Iowa), 162 Northwestern 203.
BURDEN OF PROOF AS TO PRESENCE OF COAL-TERMINATION OF
A coal-mining lease required the lessee to pay an annual minimum
royalty of $1,000, the first payment to be made three years after the
date of the lease. Prior to the execution of the lease the lessee,
with the consent of the lessor, had prospected upon the leased land,
drilled holes thereon and on the adjoining land, and at the time of
the execution of the lease had blue prints of the prospecting and
drilling, and entered into the lease without demanding further oppor-
tunity for investigating. The lessee made no effort tg discover
coal upon the leased land, but in driving entries on the adjoining
land toward the leased land "slate " and rock were struck which made
the further driving of the entry impossible. The lease clearly indi-
cates that the parties intended that a failure to find coal should not
defer the payment of the minimum royalty for more than three years.
The lease in effect is an agreement that in consideration of being
permitted the possession of the premises for 20 years, the stated
term, the lessee will, after three years, pay the minimum royalty
and take the risk of being able to prove that merchantable coal can
not be found by the time the duty to pay the royalty accrues. Under
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Thompson, Joseph Wesley. Abstracts of Current Decisions on Mines and Mining: May to August, 1917, report, December 1917; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc38745/m1/95/: accessed July 21, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.