Boyer ex rel. Boyer v. Fulmer

Citations

• 176 Pa. 282
• 35 A. 235
• 1896 Pa. LEXIS 1070

Syllabus

<p>Mines and mining — Minimum royalty — General rule.</p> <p>The ordinary provision contained in mining leases where a certain minimum amount is agreed upon to be taken out each year and if it is not taken out the lessee agrees to pay the royalty notwithstanding, is based upon the theory that the ore or coal is in place and can be taken out if proper efforts are made, and is intended as an incentive to compliance with the duty of adequate performance and of prompt payment.</p> <p>Mines and mining — Ore lease of undeveloped lands.</p> <p>Where undeveloped lands were leased for the purpose of digging for and mining ore, and the lease provided that the lessee should have the right to dig for, mine and take away the ore for a period of fifteen years, and to pay 60 cents per ton for every ton of ore sold from the premises during the term, to be paid monthly, but the amount to be paid to be not less than $-100 in any one year, it was held, (1) that the parties contracted with reference to the iron ore which was supposed to exist, and did exist, on the lands demised; (2) that there was no agreement to pay a fixed absolute sum for the ore in place; (3) that the lessee was bound to use all proper efforts to find ore, mine and take it away, and that he was obliged to pay only for such ore as was mined or could be mined, and, if the ore gave out before the termination of the lease, the obligation to pay royalty ceased : Muhlenberg v. Henning etal., 116 Pa. 138 ; Kemble Coal &Iron Co. v. Scott, 15 W. N. C. 220; McCahan v. Wharton, 121 Pa. 424, followed. Timlin v. Brown et al., 158 Pa. 606, distinguished.</p>