Page:North Dakota Reports (vol. 48).pdf/358

 Equity is very slow granting relief by forfeiture in coal and iron mine cases. Huggin v. Daley 40 C. C. A. 15.

, J. The plaintiffs bring this action to cancel the lease of a coal mine and mining privileges on 80 acres of land, the N. 1/2 of the S. E. 4, 20—124—100. The lease is dated April 5, 1912, and it continues for 35 years, unless sooner terminated by the lessees. It includes the dwelling house and wagon scale, which the lessee agrees to keep in repair. As rental the lessee agrees to pay for all coal mined 25 cents a ton, and to pay the same on the 1st day of each month, and to pay not less than $4.17 a month, or $50 a year, and the lessee agrees to use his best efforts to open up and mine the coal for the best interests of both parties. It appears the lessee has made the regular minimum monthly payments, and has paid 25 cents for all coal taken from the mine, and has made extensive progress in the development of the mine to the amount of perhaps $3,000 or $4,000. He has constructed a long horizontal shaft leading to the mine, which is now in a fair way to operate with profit.

The complaint avers that the defendants are assignees of the lease, and that they have failed to keep the house in repair, and suffered it to go to wreck and ruin, and have not weighed all coal mined, and have not used their best efforts to open up and operate the mine for the best interests of the plaintiffs. Also, that Clarence Ellithorpe took possession of the mine on April I, 1916, and since then, until November 21, 1919, has paid 25 cents a ton on only 2,004 tons of coal, and that most of his time is given to the development of an adjacent coal mine owned by him. Hence the plaintiffs demand that the lease be cancelled, and appeal from a judgment dismissing the action.

The lease does not reserve to the lessor any right of forfeiture, and forfeitures are not favored at law or in equity. Indeed, the granting of relief against forfeitures is one of the most favored heads of equity jurisdiction. And by statute a condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created. Comp. Laws, 1913, § 5777. The transcript of the testimony, motions, exceptions, and objections cover nearly 200 pages. A review would serve no purpose. The case does not appeal to equity. There is no showing of either a legal, an equitable, or contractual cause for cancelling the lease. The lease does not bind the lessee to rush in mining or to do it any faster than it has been done. It binds the lessee to pay for all coal mined 25 cents a ton, and to pay a minimum of not less than $50 a year. The lease contemplates a coal output