dissenting:
I dissent from this judgment for the reason that I regard the *128contract as a sale of the coal in place, to be paid for by the ton, the stipulated annual payment being not as rental, but as so much of the purchase money for the coal. In no event can I see any justification for requiring payment for any more coal than is in existence upon the tract. The full amount of coal in the entire tract has already been paid for at the agreed rate.
The effect of this decision will be to compel the purchaser to pay twice for the same property. Such a result could never have been contemplated by the parties to the contract.