Conrad v. . Morehead

*34 MekrimoN, J. The deed before ns creates a lease for ninety-nine years, determinable, before it expires by its own limitation, at the will of the lessee. By its terms the lessee might surrender the lease at any time during its continuance. Doe v. Dixon, 9 East., 15; 4 Wait, Ac. & Def., 203; Arch. L. & T., 93. The lease, hpwever, might be determined by a forfeiture of the same. What causes work such a forfeiture, depends upon the covenants contained in the lease, express or implied. The right of a landlord to enter for a forfeiture of a term by the tenant, arises, either by implication of law without any stipulation upon the subject between the contracting parties, or where it is matter of express stipulation in the deed or contract, under which the tenant occupies the demised premises. Whore the covenants are express, there need ordinarily be little difficulty in settling the rights of the parties: these arc what the parties make them. Implied covenants, however, are such as the law creates, implies, in the absence of express stipulation, in regard to the existing relations between the lessor and lessee; and they not infrequently spring out of express covenants. They depend for their existence on the intendment and implication of the law, and arc such as the law raises from the relations of the contracting parties to each other, in respect to the lease, in the absence of any -express agreement on the subject between them. The nature of the contract of lease, the subject matter of the same, the express covenants contained therein, and the like considerations, give rise to the implied covenants and determine their nature and the extent of them. Hence it has been held, that where land has been granted for a term of years, by the words demise or grant, without any express covenant for quiet enjoyment, the lessee or his assigns, if ousted by rightful title, may sustain an action on the implied covenant that the lessor warranted that he had a good title at the time of the execution of the deed creáting the lease. This is because the word demise implies the power of letting, as the word grant, that of giving. *35 And so, also, it has been held, in the absence of an express covenant in that respect, that there is an implied covenant on the part of the lessee that he will use the land demised to him in a husband-like manner, and not unnecessarily exhaust the soil by negligent or improper tillage. In another case, it was held, where the lessee covenanted to pen and fold his flock of sheep, which he should keep on the premises, upon such parts thereof as the same had been usually folded, there was an implied covenant to keep a flock of sheep. A number of similar illustrations might be cited. Taylor, L. & T., §§252, 253; Arch., supra, 68, 69; Scott v. Rutherford, 92 U. S. Rep., 107. In the case before us the lessee covenanted expressly to pay the lessor “one-tenth part of all the gold, silver and other metals that may be procured from said land, and to account for the same quarterly, is so required.” There is no express covenant that the lessee shall work the mine continuously, or in any particular way, or at all; but there is manifestly an implied covenant on the part of the lessee that he will work it as such mines are usually worked, and with ordinary diligence, under the surrounding circumstances; not, indeed, simply for his own advantage and profit, but as well to the end the lessor may have his toll “quarterly, if he shall so require,” or at such longer inter-, vals as he may see fit to prescribe. Taylor, supra, §421; Rosley v. Walker, 5 Term Rep., 373; 4 Wait, supra, 246; Arch., 68. Such covenant arises by .necessary implication. 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. *36 The lessee is protected by an express covenant; if the mine-should turn out worthless or unprofitable, he might in that case, by the express terms of the lease, surrender it, and thus end his obligation to the lessor; but he cannot hold his term indefinitely,, one, two, ten, twenty or thirty years, or until it expired by its own limitation, and not work the mine, pending all that time,, at all. Such is not the contract between the lessor and lessee. It is of the essence of the contract, necessarily implied, that the-lessee should work the mine with reasonable diligence, or surrender the lehse, as he had the right to do by express stipulation,, so that the lessor might, in the first alternative, get the tolls; or, in the other, work the mine himself, or sell, or let it to some other person, in his discretion. This construction is reasonable- and just, and in the absence of any express stipulation in respect to -working the mine, the law implies that this was the contract between the lessor and lessee. The lessee -worked the mine for a number of years, and until the last of the year 1849. Since that time, neither himself in-his life-time, nor his administrators since his death, have worked it at all. In 1855 the lessee removed the machinery from the mine and land embraced in the lease. In 1878 the plaintiffs-took actual possession of all the property, and worked the mine,, and, at the time of the bringing of this action, had actual and exclusive possession. In thus failing to work the mine- for a long period of time, for twenty years and more, the lessee broke his implied covenant to do so, and forfeited his term. The lessors had the right to-reenter by reason of such breach, take and hold possession as they did do, and thus terminate the lease. Taylor, supra, §698; Collycr on Mines, 10. The lease is terminated and the defendants have no right, interest or claim under the same. There is error. Judgment reversed, and judgment for the plaintiffs according to this opinion. Error. Reversed.