In February of the year 1893, plaintiff and her husband, the then owner of certain lands in Mahaska county, leased the same to the Garfield Coal Company; and in May of the year 1902 the coal company sublet the property to one Gibbons, and he, in turn, on September 16, 1902, sublet the same to the defendants, Black & Cook. The lease was of the coal underlying the land, and was to continue until February 18, 1908, unless the coal was sooner mined out. The lessee agreed to operate the mine in a good and workmanlike manner, and to pay as- royalty 8 cents per ton on all lump coal. It was also provided that the lessor should have two tons of nut coal per month, for which no charges were to be made. Plaintiffs are the heirs at law of Joshua Price, deceased, and as such, claim that the lease was forfeited and abandoned by the defendants and their sub-lessees, and that they are entitled to the possession of the property. Defendants deny the alleged forfeiture and abandonment, and rely upon the lease as the basis of their right to the possession of the property.
l. mines and EasefGd«tyaI of lessee. The original lessee, the coal company, worked the mine to a limited extent during the years 1895 to 1900, both inclusive, but did no more work before subletting the property. Shortly before this action was commenced, which was in October of the year 1902, ¿efen(jailtSj -who are sub-lessees, resumed the operation of the mine, and each and all of the defendants claim and testify that there was no intention to abandon the mine; that, whatever the delay, it was caused by difficulties in getting at the coal; and that plaintiff has at all times down to the commencement of this suit recognized the continued existence of the lease. Failure to operate the mine for nearly two years is regarded by plaintiffs as a
2‘ abandonment; evidence Going now to that question, which is one of mixed law and fact, we find that while the original lessee, the coal company, worked the mine in but a desultory way for something like six years, plaintiffs’ ancestor made no complaint thereof, but accepted tibe royalties, and seemed content. Eor something like two years the mine was not worked. This delay was due largely to difficulties in operating the mine. There were three methods of removing coal from this field — one by means of mules, another by what is known as the “ tail-rope system,” and still another by sinking a shaft and hoisting the coal to the surface. The first two were tried without bringing satisfactory results, and, just before this suit was commenced, defendants had, at considerable expense, sunk a shaft near the plaintiff’s land, had set their engine, and had' been to other large expense in getting ready to mine the coal, all with the knowledge and consent of the plaintiffs herein. Moreover, Margaret Price, one of the lessors, was receiving coal during practically all the time, as provided for in the lease. It was discovered after due trial that the only successful method for removing the coal from plaintiffs’ land was by the shaft system; and the defendants had, with the knowledge of the plaintiffs, been to a large expense in sinking the same, and providing the necessary machinery, when this action was brought. Failure to operate the mine is sufficiently accounted for, and no abandonment should, under the circumstances, be inferred therefrom. Of course, lapse of time is evidence of abandonment, but it is not conclusive. Act and intent must concur, before a court is justified in finding a forfeiture through abandonment. With the conclusion of the tidal court that there was no abandonment we are in full accord.
Sustaining our conclusions on the entire case are the following: Hosford v. Metcalf, 113 Iowa, 240; Oreamuno v. Uncle Sam Co., 1 Nev. 215.
The decree is right, and it is affirmed.