the present bill was filed. Since that time the plaintiffs, with certain exceptions, not material to notice, have made due and legal tender on or about the 20th of each and every month, of the royalty for the coal actually mined the preceding month, down to the present time, all of which have been refused by the defendants. At no time, however, have these tenders equaled the minimum quantity called for by the lease, the coal mined. 'being as a rule considerably less than one-half of it and some months less than one-third. The quantity of coal mined in 1896 of all sizes was 11,640 tons, 4 cwt., and in 1897, 16,303 tons, 19 cwt.; that for 1898 does not appear from the evidence.

20. The reason given by the plaintiffs for not paying the minimum royalties since January 1, 1896, is that developments in the first and second Dunmore veins have proved those veins to be worthless, and that the minimum quantity cannot be mined from the lower Dunmore or China vein which is practically all that is left to produce it. With regard to this the facts are as follows: (a) About the middle of October, 1895, the coal in the vein above the first Dunmore on the three-acre reservation being nearly mined out, a start was made toward the opening up of that vein. The second or middle Dunmore was unminable, having less than two feet of coal, and the first and third Dunmores were therefore recognized as the only ones to be relied upon to produce the minimum. For the purpose of opening up and mining the first of these, gangways and airways were driven from the shaft on either side, but in a very short distance to the north and west the coal thinned out to from fourteen to eighteen inches and at some places as low as six inches, and was of such an inferior or checkered quality that it was not marketable. To the south and east, however, the coal was about two feet thick, but was also of a checkered character.

(b) Work was prosecuted continuously in this vein from the middle of October, 1895, to April 1, 1896; the headings to the north were driven about 150 feet; those to the west about 300 feet; and at a distance of 120 feet from the shaft on the westerly heading, a gangway and airway were driven southerly about 120 feet. This work was very expensive on account of so much of it being in rock and cost the plaintiff company altogether about $6,200.

(c) It was not, however, of a character to fully prove or

test the vein beyond the bounds to which it was carried. There is undoubtedly a fault in the vein, but it is a fault of compression merely; the coal is squeezed down or thinned out to the extent indicated, but no disturbance of the strata above or below it is found, nor does any appear in the underlying or overlying veins. The indications are that it is local and that it extends in a nearly east and west line across the property. To test it, therefore, headings should be driven directly to the north and south; those which have been driven by the plaintiffs to the west have extended along the edge instead of going through it as they ought; and those to the north and south have not gone far enough.

(d) It may be added that the two bore holes put down by the plaintiff, one in May, 1898, and the other during the progress of this hearing, have demonstrated nothing whatever. The former was located 500 feet northwest of the main shaft but was sunk only 36 feet 9 inches below the Clark vein, which would carry it only into the upper part of what is sometimes known as the "Dirty Eight" vein, a conglomeration of bone, slate and coal, which lies a few feet above the upper Dunmore. The hole should have been extended at least ten feet further and would then have shown to a certainty in what it stopped. During the hearing the plaintiffs endeavored to do this but were prevented by the Delaware and Hudson Company in whose mines on the Clark vein the bore hole is located. The other hole put down since the beginning of the hearing is only 140 feet northwest of the shaft, which locates it right in the fault and shows us nothing.

(e) The six months' time taken by the plaintiffs to test this vein was reasonable and necessary and during it they were not able to mine the minimum monthly quantities called for by the lease on account of their having so nearly exhausted the vers above it on the three-acre reservation and because of encountering the fault itself. Whether they would have been able to have mined the minimum from it alone had there been no fault in the vein and been of the character anticipated is more than doubtful.

21. On May 1, 1896, the plaintiffs, having failed to do anything with the upper Dunmore, proceeded to open the China or third Dunmore vein; main headings were started to the east and west and three shifts of men, all that could possibly be em

ployed, were put at work in it. The vein was found in good shape, the coal on an average being about three feet two inches thick, and of an excellent quality. But when the vein was opened in shape for mining, there being no second opening down to it, but twenty men at a time could be put at work in it, and the output was correspondingly restricted. This was the case for about a year until the second opening shaft was sunk from the Clark Vein on May 1, 1897; and since the closing of the second opening into the Delaware and Hudson mines in the Clark Vein the latter part of January, 1898, it has again been without a second opening to the surface and the men at work in it again reduced to twenty.

22. By the ordinary and judicious process of mining not more than one-half the yearly minimum quantity of 33,000 tons of coal of the size of pea and upwards can be mined from year to year from the third Dunmore or China vein on the defendant's property. This is due to the narrowness of the property, which is but 416 feet wide, and to the thinness of the vein and the small yield from it per chamber as well as the consequent necessity for cutting about one-half or three feet of the gangways and airways through the solid rock so as to give them a proper height.

23. The counter gangway system of mining the China vein proposed by the defendants' experts, even if it were competent to produce the minimum as claimed for it, which is doubtful, is not safe or feasible under all the conditions and circumstances.

24. In the due, proper and energetic prosecution of the mining of this property so as to produce after two years a minimum of 33,000 tons of coal per year of the size of pea and upwards, the upper and lower Dunmore veins should have been simultaneously opened, and had no fault been encountered in either of them they should have been ready for mining to their full capacity by the 1st of January, 1896, with a second opening into each as required by the mine ventilation law.

25. (a) The plaintiffs have not satisfactorily established that the upper Dunmore is not a minable vein; they have merely shown that there is a fault in it which they have not yet overcome; this fault is a serious one, and so far as we can now judge is from 300 to 400 feet wide crossing the property from east to west at an angle of about 65 degrees.

(b) Counting from the time when the fault was first encountered, at least six months would be necessary to overcome it and extend the gangways and airways through and beyond it; but if merely a fault, in the exercise of reasonable diligence it could have been overcome within that time; the plaintiffs ought, therefore, to have been through the fault by the 1st of April, 1896. Fully four months, however, and more likely six, would still have been required to open up the vein to its full capacity beyond the fault until which time, after encountering the fault, to wit, until at least the 1st of August, 1896, the plaintiffs could not have mined out the minimum quantity called for by the lease from the property.

26. From January 1, 1896, to which time the minimum was paid, up to August 1, 1896, the plaintiffs could not by energetic and judicious mining have produced from this property the proportionate part of the yearly minimum quantity of 33,000 tons of coal of the size of pea and upwards; but with the lower Dunmore opened, as it ought to have been, they could during that period have produced one-half the required quantity, that is to say, 9,625 tons, being one-half the minimum for

seven months.

27. On September 23, 1896, when the notice of forfeiture was given and covering the seven months to which that notice relates, to wit, from January 1st to August 1st, 1896, the plaintiffs were not in default for the amount claimed by it, to wit, for $5,910.70, but were in default for $1,983.95; that is to say, for one-half the minimum quantity for seven months from January 1st to August 1st, making 9,625 tons; during the same period, however, the plaintiffs mined and tendered payment for 4,737 tons, 6 cwt., of the size of pea and upwards, leaving 4,887 tons, 14 cwt. unmined and unpaid for, which at forty cents a ton amounts to $1,955.08, to which should be added $28.87 interest, making $1,983.95 in all.

28. Assuming for the purpose of this special finding that, as a matter of law, the plaintiffs were bound for the full minimum royalty from the time they ought with reasonable diligence to have overcome the fault in the upper Dunmore vein, including the time necessary to have opened up the vein, to its full capacity beyond it, to wit, from August 1, 1896, and that

in default of this the vein is to be taken as of a sufficient capacity to produce, in conjunction with the lower Dunmore vein, the minimum yearly quantity of 33,000 tons, the royalties due July 20, 1899, the time of filing this report, on that basis without interest, in addition to the amount of $4,983.95 found due above on August 1, 1896, would be $38,500; that is to say, for 96,250 tons of the size of pea and upwards at forty cents a ton, the royalties on the sizes below. that which have been mined and marketed to be added. This finding has no influence in the case, however, in the view I take of it.

29. Since the institution of this suit the interest of Frederick G. Von Storch, one of the defendants, in and to the land in controversy, and the royalties due from the same, has been purchased by and transferred to T. C. Von Storch, one of the members of the plaintiff company; and the like interest of Della E. Newton, another defendant, has been purchased by and transferred to J. E. Burr, one of the attorneys of the plaintiff company. Each of these interests is an undivided thirty-third. 30. The amount in controversy in this case exceeds the sum of $1,500.

DEFENDANTS' REQUEST FOR FINDINGS OF FACT.

1. It was the duty of the lessee and that of the assignee to so develop the property leased as at the expiration of two years to have the mine in a condition to produce the minimum of thirty-three thousand tons if this could be done by an energetic prosecution of the work.

It was impossible to do this with the twenty men allowed by law to work in a mine having no second opening. Answer. These two points are combined and answered together, and so taken the finding of fact requested in the second is affirmed. The first is a proposition of law and is disposed of in my general conclusions.

3. The plaintiffs knew, under the evidence, that they could not get their minimum from the veins on the three-acre reservation.

Answer. They knew that for only a limited period could they get the minimum from the veins above the upper Dun