Excepting in a single respect, the findings of fact and the opinion of the referee have convinced me that the judgment ordered by him should stand. I think, however, that the adjoining part of the judgment should be changed by inserting in the second subdivision of the judgment, immediately before the words “ until all the coal which it is authorized, ” the following words, “excepting during such times as defendant shall use said shaft, breaker, machinery, or other structures for the mining, preparing, and forwarding coal in and from plaintiff’s said land to the amount or quantity such shaft, breaker, machinery, and other structures, are or shall be adapted to mine, prepare, and forward ore.” As thus modified the judgment is affirmed, without costs to either party, notice of settlement of the order to be entered is to be given.
Freedman, J., concurred.