The plaintiffs claim the exclusive right to all mines and minerals in the land described in the complaint, under and by virtue of a mining lease made to them by Elizabeth Gragg and others on 19 December, 1879, for the term of ninety-nine years, and also under and by virtue of a mining lease made by said Elizabeth Gragg and another to one Haigler, dated 24 March, 1866, for the period of twenty-five years, the latter lease having been, as they claim, assigned to them, in effect, with the assent and concurrence of the lessors.
The defendants claim all the mines and minerals and all mining rights in said land under and by virtue of a deed made to them on 27 May, 1890, by the plaintiffs' lessors, for the consideration of (686) $2,000.
Since both plaintiffs and defendants claim under the same parties (the Graggs), the plaintiffs, their titles being anterior, are entitled to recover, unless the leases mentioned above have expired or have been forfeited or surrendered and should have thus become void.
The consideration for the lease to plaintiffs was one dollar and their agreement to pay to the lessors, their administrators, executors, heirs, or assigns, one-tenth part of all the net proceeds of any minerals taken from said land, but there is in it no stipulation that a failure to open and work the mines shall cause a forfeiture. But the construction put upon their contract by the law is the same as if such a stipulation had been expressly written therein, for, as was said in Conrad v. Morehead, *Page 461 89 N.C. 31, of a similar lease: "It would be unjust and unreasonable, and contravene the nature and spirit of the lease, to allow the lessee to continue to hold his term a considerable length of time without making any effort at all to mine for gold or other metals. Such a construction of the rights of the parties would enable him to prevent the lessor from getting his tolls under the express covenant to pay the same, and deprive him of all opportunity to work the mine himself or permit others to do so. The law does not tolerate such practical absurdity, nor will it permit the possibility of such injustice."
His Honor construed the contract under consideration according to the principle announced in the case cited above, and told the jury that a failure on the part of the lessees to work the mines for five years would cause a forfeiture, of which the lessors might take advantage if they saw fit so to do. Certainly the plaintiffs have no right to complain that the period fixed by his Honor (five years) was too short. No reentry by lessors was practicable or necessary. They were in possession of the land at the date of the lease, and thereafter continued in possession, that possession being subject to the mining rights of the (687) plaintiffs until those rights were lost to them by nonuser and abandonment, according to the terms of the contract as construed by the law. They were presumed to know what meaning the law put upon the expressed terms of that contract, and that, without any claim or demand or notice, the lessors, after such nonuser for an unreasonable time, could resist their entry for mining purposes, their rights having been forfeited. And if the lessors could resist an entry by plaintiffs, certainly the defendants, the grantees of those lessors, may avail themselves of the forfeiture and resist any interference by plaintiffs with the rights they have purchased, unless their relation to the plaintiffs was such as estops them from asserting an adverse title; and his Honor's instructions to the jury in regard to such estoppel were correct.
The jury having found the fourth and fifth issues in defendants' favor — that is, that the leases under which plaintiffs claim are void — and this, as we have seen, under proper instructions, the plaintiffs cannot recover, and the judgment must be affirmed.
We deem it unnecessary to consider separately each exception to the charge made by plaintiffs as to what has been said above, which is, indeed, but a reiteration of the principle announced in Conrad v. Morehead, supra, and seems to meet all their objections. We note that some of the exceptions seem not applicable to the charge of his Honor as set out in the case.
NO ERROR.
Cited: Hawkins v. Pepper, 117 N.C. 414. *Page 462
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