Page:North Dakota Reports (vol. 48).pdf/357



Appeal from the District Court of Williams County; Fisk, J.

Affirmed.

''Geo. A. Gilmore'', for appellants.

“Lessees are obliged to work a mine for the best interest of the owner or lessor, and with reasonable diligence and in proper manner, and if not so expressed in the lease, the law implies said conditions.” 27 Cyc. 705 and cases cited thereunder.

“When a minimum royalty is provided in the lease, this does not excuse lessee from not operating the mine diligently and mining all he can.” 27 Cyc. 705-706 and cases cited in the case of Chauvenet v. Person 11 L. R. A. (N. S.) 417 and foot note cases cited thereunder.

“A mining lease may be cancelled by a Court of Equity if the terms and conditions in the lease are not complied with; and when no time is stated in the lease the law implies that the acts must be done in a reasonable time and manner.” 27 Cyc. 708-709 and foot notes cited. Howerton v. Kansas Natural Gas Co. 34 L. R. A. (N. S.) 34.

L. M. Ellithorpe & McGee & Goss, for respondents.

“The rule that a proviso for forfeiture, or re-entry upon breach of a covenant or condition, must be inserted in the lease, is also applied, and if the instrument expresses the particular causes for which a forfeiture may be claimed, it cannot be inferred that any other grounds of forfeiture exist.” 27 Cyc. 708. Citing cases under notes 24 and 25.

“The instrument executed by Marks and Thompson, was a lease for a definite period, as well as an option, and as it did not contain any expressed provision for a forfeiture it may be doubted whether such a forfeiture could be enforced.” 27 Cyc. 708, Note 24, Grandt Chrome Co. v. Marks( Ore.)}} 181 Pac. 345.

“Where the terms of the lease as a whole, show that it was the intention to accept a sum of money in lieu of development of the land, the acceptance of the money by the lessor will be a waiver on his part of the right to insist upon a forfeiture of the lease for failure of the lessee to explore and develop the lands for minerals, according to its terms.” 11 L. R. A. (N. S.)}} 417; case note at p. 419.