342; Code Civ. Proc., § 823, construed and applied-right to jury trial-procedure. Schillinger Fire. Proof C. & A. Co. v. Arnott, 152 N. Y. 584 (46 N. E. Rep. 956). Under Utah Laws 1890, p. 31, ch. 30, § 28, different parties having claims for mechanics' liens may assign them to one of their number for the purpose of enforcing them by one suit. Culmer v. Clift, Utah (47 Pac. Rep. 85). A provision in Wash. Laws 1893, ch. 24, § 11, that "no person shall begin an action to foreclose a lien upon any property while a prior action begun to foreclose another lien on the same property is pending," and providing for the intervention in such previous action, applies only to prior actions to enforce mechanics' liens. Nason v. Northwestern Mill & P. Co., 17 Wash. 142 (49 Pac. Rep. 235).

A

Sec. 568. Construction of particular statutes. laborer's lien for wages cannot be enforced under Cal. Stat. 1891, p. 195, unless the wages are payable weekly or monthly. Spaulding v. Mammoth Springs Min. Co., Cal. (49 Pac. Rep. 183). For further construction of this statute, see Kuschel v. Hunter, Cal. (50 Pac. Rep. 397). Construing and applying Ill. Rev. Stat., ch. 82, § 18, which provides that where a contractor who has partially performed his contract is prevented from completely performing it on account of default on the part of the land owner, "he shall be entitled to a reasonable compensation for as much thereof as has been performed, in proportion to the price stipulated for the whole, and the court shall adjust his claim and allow him a lien accordingly," it will be presumed that the contract price for the whole work is reasonable compensation therefor, and hence the reasonable price for a part of the work is in proportion to the price stipulated for the whole. Sohns v. Murphy, 168 I11. 346 (48 N. E. Rep. 52). Applying N. C. Code, § 1781, providing for a mechanic's lien which is made superior to a homestead by Const., art. 10, § 4, it is held that when a contractor undertakes to put up a building and complete the same, the contract is indivisible and his lien embraces the entire outlay whether in labor or material. Broyhill v. Gaither, 119 N. C. 443 (26 S. E. Rep. 31). Va. Code, § 2485, construed and applied-lien for supplies furnished to corporations.

§ 568, 569

MECHANICS' LIENS.

518

Boston Blower Co. v. Carman Lum. Co., 94 Va. 94 (26 S. E. Rep. 890). Va. Code, § 2475, applied-particular machinery held to be a part of a building so as to entitle the manufacturer to a mechanic's lien. Haskin Wood- Vulcanizing Co. v. Cleveland S. Co., 94 Va. 439 (26 S. E. Rep. 878.) The lien for material furnished is given by § 1, ch. 177, Rhode Island Pub. Stat., as amended by public laws, ch. 696, § 1, and not by § 5, ch. 177; and a notice of intention to claim a lien for materials which states that the lien is created by § 5, is fatally defective. Glynn v. Zabriskie, 19 R. I. 215 (36 Atl. Rep. 3).

Sec. 569. Statutes amended and new statutes. Colorado, Idaho and New Jersey each have a new statute covering the entire subject of mechanics' liens. Colo. Laws 1899, p. 261; Ida. Laws 1899, p. 147; N. J. Laws 1898, pp. 538-553, ch. 226. Sandels & Hill's Ark. Dig., §§ 6251-6253-mechanic's lien against railroads-amended, Laws 1899, p. 145. A recent statute in Arkansas gives laborers and constructers of wells and cisterns a lien on the land "or so much thereof as

is necessary to cover the debt." Laws 1899, p. 311. In Arkansas an action to enforce a lien must be commenced within fifteen months after the filing thereof; otherwise the lien fails. Laws 1899, p. 322. Ark. Laws 1899, p. 108-act authorizing sale of property to satisfy mechanic's lien. Cal. Laws 1899, p. 24, amends Cal. Code Civ. Proc., § 1185, concerning the amount of land subject to a mechanic's lien. Cal. Code Civ. Proc., § 1183-property subject to mechanic's lien -when contract must be in writing-amended Laws 1899, p. 33. Conn. Gen. Stat., §§ 3020, 3021-liens of subcontractors -amended, Laws 1899, p. 46. Ind. Rev. Stat. 1894, § 7255 -who may claim a mechanic's lien-amended, Laws 1899, p. 569. Me. Rev. Stat., ch. 91, § 32-dissolution of lien for failure of claimant to file sworn claim in forty days-amended, Laws 1899, ch. 84, p. 94. Minn. Laws 1899, p. 323, defines the duties of contractors before becoming entitled to a lien, or to bring action to recover the amount due under the contract. Nev. Act., Mar. 2, 1875, § 4-priority of mechanics' liensamended, Laws 1899, p. 98. N. J. Laws 1898, ch. 227, p. 553, repeals sundry acts relative to mechanics' liens. Section four of "An act to secure to mechanics and others

payment for their labor and materials in erecting a building" contained in New Jersey Revision of 1898, is amended by Laws 1899, p. 348. N. Y. Laws 1897, ch. 418, §§ 50-52— lien for stone workers-amended Laws 1899, ch. 322, p. 699. N. C. Laws 1897, ch. 67, § 1, amended by adding provision concerning laborers and others furnishing statements of amounts due them by contractors. Laws 1899, ch. 335, p. 471. N. Dak. Rev. Codes 1895, § 4788-who may have a mechanic's lien, and for what-amended, Laws 1899, p. 150. Oregon Laws 1891, Act Feb. 20, § 1-right of laborers on mining claims to liens-amended, Laws 1899, p. 180. Va. Code, §§ 2476, 2477-perfection of lien by contractor or subcontractor-notice of and extent of lien-amended, Laws 1897-98, p. 487. Utah Rev. Stat. 1898, § 1400-recovery of attorney's fees in action to enforce lien-amended, Laws 1899, p. 81. Wis. Rev. Stat., § 3314-enforcing lien by virtue of contract with one not the owner-amended, Laws 1899, p. 372, ch. 222.

MINES.

EPITOME OF CASES.

Sec. 570. Mining leases. Where a mining lease provides that upon the failure of the lessee to perform his covenants the lease shall terminate, the lessor may maintain ejectment against the lessee without previous demand for possession where he remains in possession after such forfeiture. Kirk v. Mattier, 140 Mo. 23 (41 S. W. Rep. 252). Where a mining lease stipulates for the payment of certain rent and royalty at fixed intervals and provides that upon nonpayment, according to the terms of the lease, it shall be null and void, it is held that the failure to make the payments as required, operates as a forfeiture upon which the lessor or his grantees may re-enter, or bring ejectment. N. J. Gen. Stat., Vol. 1, p. 880, §§ 135, 136, construed and applied. Boys v. Robinson, 61 N. J. L. 179 (38 Atl. Rep. 813). A covenant in a mining lease, to mine a specified quantity of ore each year, or, upon failure to do so, to pay

the royalty upon that amount, imposes an obligation to pay for the stipulated quantity of ore whether mined or not; not whether it existed or not. It is not a covenant to pay royalty whether the ore existed or not, but one to pay royalty if the ore exists whether mined or not; hence, the nonexistence of the ore is a defense to an action to recover the royalty. Diamond Iron-Min. Co. v. Buckeye Iron-Min. Co., 70 Minn. 500 (73 N. W. Rep. 507). An agreement by a lessor in a mining lease to accept a reduced royalty in order to enable the lessee to continue operations and prevent a forfeiture of the lease, is based upon a valuable consideration. Sargent v. Robinson, 17 Ind. App. 411 (46 N. E. Rep. 925). Particular instrument construed and held to be a mining lease and not a mere mining license. Kirk v. Mattier, 140 Mo. 23 (41 S. W. Rep. 252). For construction of particular condition in a lease reserving a lien "on all ore mined" to secure the payment of royalty. Iron Duke Mine v. Braastad, 112 Mich. 79 (70 N. W. Rep. 414). For construction of particular mining leases as to the right to royalties, see Coalsdale Min. & Mfg. Co. v. Clark, 43 W. Va. 84 (27 S. E. Rep. 294); Wright v. Warrior Run Coal Co., 182 Pa. St. 514 (38 Atl. Rep. 491). Minnesota has a statute regulating the leasing of mineral land belonging to persons under guardianship. Laws 1899, p. 147.

Sec. 571. Oil and gas leases-Construction. Construing an oil and gas lease in which the lessee covenanted to complete one well within a specified time or to pay a certain monthly rental in case of his failure to do so, the failure to do either to annul the lease, and the lessee "having the option to drill said well or not, or pay said rental or not, as he may elect," it is held that the lessee must either drill the well or pay the rent and he cannot escape liability by refusing to do either. Jackson v. O'Hara, 183 Pa. St. 233 (38 Atl. Rep. 624). Where the the lease provides for the payment to the lessor of a certain portion "of the profits realized from the oil or gas, the word "profits," means the net amount realized over and above all expenses. Poterie Gas Co. v. Poterie, 179 Pa. St. 68 (36 Atl. Rep. 232). For construction of particular oil lease as to the right to royalties and defense to an action therefor,

see Swint v. Mc Calmont Oil Co., 184 Pa. St. 202 (38 Atl. Rep. 1021; 63 Am. St. Rep. 791). Particular affidavit of defense to an action for bonus under an oil lease held insufficient. Chambers v. Smith, 183 Pa. St. 122 (38 Atl. Rep. 522). For construction of particular oil and gas leases, see Poterie Gas Co. v. Poterie, 179 Pa. St. 68 (36 Atl. Rep. 232); Kokomo Nat. Gas & Oil Co. v. Albright, 18 Ind. App. 151 (47 N. E. Rep. 682); Bettman v. Harness, 42 W. Va. 433 (26 S. E. Rep. 271; 36 L. R. A. 566).

Sec. 572. Oil and gas leases-Forfeiture-Abandonment. Where an oil and gas lease provides for its forfeiture in case the lessee does not begin operations within a specified number of days, he is entitled to the benefit of the full length of time in which to begin operations. Henderson v. Ferrell, 183 Pa. St. 547 (38 Atl. Rep. 1018). Where an oil lease provides for the payment of a stipulated rent each month until work is commenced and for a forfeiture of the lease if certain work is not done within a specified time, the provision for the forfeiture is for the benefit of the lessor and until he elects to enforce it, the lessee's liability to pay rent continues. Mathews v. People's Nat. Gas. Co., 179 Pa. St. 165 (36 Atl. Rep. 216) Where a lease, "for the sole and only purpose of drilling and operating for petroleum oil and gas for the term of twenty years or as long thereafter as oil and gas is found in paying quantities," which specifies the time when the lessee shall begin operation, which is subsequently extended, a failure of the lessee to commence operations for more than seven years was held to create a presumption of his abandonment of the lease, and a court of equity may entertain a suit to cancel it. Crawford v. Ritchey, 43 W. Va. 252 (27 S. E. Rep. 220). Particular evidence held sufficient to show an abandonment of an oil lease. Stage v. Boyer, 183 Pa. St. 560 (38 Atl. Rep. 1035). A purchaser from a lessor in an oil lease with knowledge of the existence of the lease, is bound by a parol agreement between the parties to it as to what shall constitute due diligence or abandonment, although such purchaser did not have knowledge of the existence of such agreement. Venture Oil Co. v. Fretts, 152 Pa. St. 451 (25 Atl. Rep. 732), distinguished. Bartley v. Phillips, 179 Pa. St. 175 (36 Atl.