Flory v. Heller, 1 Monaghan, 478 (1889). This was a lease of land with the privilege of quarrying for slate, with a provision that machinery and fixtures placed there by lessee should belong to him.

The landlord was assessed taxes on the land and paid the same, and the tenant was assessed taxes on the quarry and machinery which he had placed upon the land. Held, the tenant cannot deduct taxes paid by him from royalties due the landlord as rent.

Miles v. D. & H. Canal Co., 140, 623 (1891). In a lease of coal land which created a divided ownership of coal and surface there was a provision that the lessors should pay all taxes on the leased land; they were held liable for the taxes on both surface and coal in place. And the lessees having paid taxes demanded of them upon the coal in place had the right to retain the amount thereof out of royalties otherwise due the lessor.

Pettibone v. Smith, 150, 118 (1892). A covenant in a coal lease providing "that the said lessees shall pay all and every the United States, State, and local taxes, duties and imposts on the coal mined, the mining improvements of every kind, and the surface and coal land itself," does not include a municipal assessment to defray the cost of building a sewer, and to provide for the cost of grading a street.

D. Rent and Royalty.1

"Mining rent" is a term which is used to mean the consideration money of a mining lease, whether that lease creates a tenancy, grants a license or an incorporeal right, or conveys a fee.

It may be (1) a fixed sum; (2) a certain annual sum; (3) a royalty on the amount of minerals extracted payable at fixed intervals or times; (4) such a royalty, but not less in the aggregate than a fixed amount each year; (5) such a royalty and a covenant to mine a certain minimum amount or pay royalty thereon.

As rent must be something issuing out of the thing granted, and not a part of the thing itself, when the consideration is a part of the minerals, it is not strictly a rent, but an exception.

According as the lease creates a fee, an incorporeal right, a tenancy or license, the rent may be either purchase-money or a true rent.

If the lease out of which it arises is a true lease of the soil or a grant of a right to take minerals, the money or thing which is paid therefor is rent and has all the qualities thereof.2 It is a preferred debt. It is income, and such as has accrued goes to the personal representatives, and not to the heir of a decedent. It belongs to the life tenant as profits.3

1 See also title "Forfeiture," p. 147.

See pages 8-14, where the cases on

2 North Carolina Code, 1883, sec. 1763. this point are collected.

If on the other hand the rent arises from a conveyance which passes a freehold estate in the minerals, it is the purchase-money thereof, and has none of the qualities of rent. The fact that it is called rent, that it is paid in certain amounts at fixed intervals, does not establish its nature. If it is paid for the minerals in the ground and not merely for the use of the premises, it is not rent properly so called, but purchase-money, a part of the corpus of the estate and not of the profits issuing out of it.1 Although it is purchase-money, the duty to pay is absolute and does not depend upon the existence of a corresponding amount of minerals, unless, of course, made so dependent by the terms of the lease.2

Whatever may be the nature of the estate granted, the rent is not dependent upon the taking of minerals, unless rendered so by the terms of the instrument creating it.

The remedies for non-payment of rent are an action on the contract in all cases; if the amount of the rent is dependent upon the amount of mineral taken, a bill for an account will lie. And if the consideration is a true rent, the ordinary remedy for the recovery of rent by distress is available by the landlord.

When a lease has been assigned by the lessee, even with the landlord's consent, the original lessee is not relieved from liability upon the covenants contained in the lease. The covenant to pay rent being one which runs with the land, the assignee is liable thereon. But of course he is liable only for rent which accrues after the assignment.3

In the absence of other arrangement by the terms of the lease or contract, where the consideration is in the shape of a royalty, or is otherwise fixed by the amount of minerals mined, it is the duty of the lessee to ascertain that amount. The returns of the lessee as to the amount mined, if accepted by the lessor, are conclusive on him in the absence of full and satisfactory evidence of fraud or mistake. If they are not accepted, or settlements are not made upon them without objection, their correctness may be assailed by the lessor in the same manner as may that of any other account. In such case expert testimony is admissible to

1 In Indiana, owners of land and others interested in the rental or royalty of coal mined have a lien therefor provided by statute. Rev. Stat. 1888, sec. 5471.

2 See Chap. III., Div. I.

3 See further, Chap. IV., Div. I., where the cases are collected.

show the territory mined and the amount which it should have yielded.

In Ohio the interest of lessors of coal mines is protected by statute, which gives the right of access to and examination of the machinery by which the coal is weighed, and also of the accounts thereof.1

Lehigh Zinc & Iron Co. v. Bamford, 150, 665 (1893). United States. A lease of a zinc mine and concentrating works for ten years was upon a specified royalty per ton for ore concentrated, payable annually, but in case the royalty in any one year fell below $1,000, then such a sum was to be paid as to make the annual rent that year amount to $1,000. Held, that the lease intended the payment of the minimum rent of $1,000 should be made annually, and should not be postponed to the end of the

term.

Manning v. Frazier, 96, 279 (1880). Where the owner Illinois. of land bargains and sells all the mineral thereunder, and grants to the vendee the right to enter and search for said minerals, and to dig, mine, explore, and occupy with the necessary structures, and to mine and remove all the coal, limestone, etc., for which the vendee agrees to pay a stipulated price per ton for the various minerals removed, payable quarterly, the grantor will have a vendor's lien on the minerals not mined and removed, for unpaid purchase-money, which he may enforce by a sale of the minerals in the ground. The stipulated price is purchase-money of the real estate, not of the minerals removed. It is not a collateral covenant.

The payment of so much per ton is only a mode of ascertainment of the purchase-money, the amount due each quarter depending upon the quantity mined during the preceding three months.

Consolidated Coal Co. v. Peers, 150, 344 (1894). In consideration of the lease of the sole right to mine coal, the lessee agreed to begin mining coal from said land within twelve months from the date of said lease, and to guarantee the lessor a yearly royalty of not less than $1,200 after the expiration of twelve months from that date; and that if after the expiration of one year no coal should be mined from said tract of land, and the said lessee should pay the monthly instalments of $100, said payment should be considered as advanced royalty, and said lessee was to have the right to mine coal sufficient to make the amount of coal mined equal the amount of royalty paid, provided that the royalty paid should not be less than $100 per month; that said lessee should carry on the work in a good and workmanlike manner, and take as much coal from said land as a proper regard for the safety of the mine would admit, and to pay the plaintiffs a royalty of threeeighths of a cent per bushel for all coal mined, etc., and that such royalty should be paid monthly on the twentieth day of the month for coal mined the preceding month.

1 Rev. Stat. 1890, sec. 305.

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. Reed v. Beck, 66, 21 (1885). Lease of land for mining Iowa. 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 comanenced) 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, 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.

Austin v. Huntsville C. & M. Co., 72, 535 (1880). The

Missouri. recovery of judgment for rents by a lessor against lessee

of coal does not vest the property in the coal in the lessor, the recov ery 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).