Dissenting Opinion by
Mr. Justice Mitchell :I would reverse this judgment as making a new contract for the parties in the light of subsequent events, in place of the one they made for themselves.
I do not find anjr basis in the lease for the master’s assumption that it contemplates “ the breaking of the whole mine product into the different sizes of what was prepared coal in 1864, with their proportionate percentages to one another, by means of the methods and appliances in general use at that time.” It is in the highest degree unjust and illogical to suppose that in an agreement made to extend certainly over ten years, and at the lessee’s option for ninety-nine more, the latter cut themselves off from improved methods of mining, and bound themselves to the methods, appliances, and proportions of product, commonly used at that date. On the contrary the lease in my view gave the appellant the clear right to produce the different sizes of prepared coal without restriction as to the proportion of each to the whole. They were to pay the same royalty on all the sizes from the “lump ” to “stove No. 4,” but could produce as much or as little of each as in their judgment would be most profitable and, therefore, could reduce it all to “ stove No. 4,” the smallest prepared size on which the full royalty was payable. This is all that in fact they have done. The market calling for a larger proportion of the small sizes, they have passed the coal through the rollers twice. Incidentally in so doing they have made more of the chestnut size than before, but the production of chestnut *529was always incidental, both at the time of the contract and now. If the demand for chestnut had ceased altogether, so that it became unsalable, appellant would nevertheless have had to pay for it, for they had taken that risk in their bargain and it would have been their loss. In fact the demand increased, and that is their legitimate profit. Of course if larger sizes, requiring full royalty, were intentionally reduced to chestnut they would still have to pay full royalty, for the contract does not contemplate the production of chestnut except as a necessary incident to the production of the stipulated “prepared” sizes. But no such evasion of royalty appears in the case. On the contrary the master finds explicitly that the additional quantitjr of chestnut is necessarily produced by the reduction of lump and steamboat to the smaller sizes, and that the process of double rolling is the least wasteful plan of reaching the desired result.
I do not understand the appellant’s argument to claim, as the opinion of the Court states it, that they could prepare the coal “ to any size which the defendant thinks may suit the market,” but only to any of the stipulated sizes paying full royalty. The former claim, if made, is clearly too broad, but with the limitation to sizes paying full royalties, the claim not only avoids entirely the reductio ad absurdum of the court, but is the just and fair interpretation of the contract, and shows that the appellant was at all times within its legal rights, and has accounted fully for all of complainants’ just demands.