GEORGE I. TAYLOR, C. KATE MANSFIELD and GEORGE A. SHEA, Appellants,
KINGMAN FELDSPAR COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Mohave. Richard Lamson, Judge. Judgment affirmed.
Mr. James E. Martin and Mr. E. Elmo Bollinger, for Appellants.
Messrs. Smith & Faulkner, for Appellee.
[41 Ariz. 377] LOCKWOOD, J.
George I. Taylor, C. Kate Mansfield and George A. Shea, hereinafter called plaintiffs, brought an action against Kingman Feldspar Company, a corporation, hereinafter called defendant, to quiet title and to cancel a lease on certain mining claims in Mohave county, Arizona. Defendant answered and cross-complained setting up the lease above referred to as the sole basis of its claim to possession of the premises, and praying that it be permitted to continue in possession thereunder, and that it be adjudged plaintiffs' interest in the premises was subject to the lease. The case was tried to the court without a jury, and, judgment being rendered in favor of defendant, this appeal has been taken.
There are some seven assignments of error, each containing many subdivisions, but counsel for appellants have very properly and commendably stated the [41 Ariz. 378] three legal propositions raised thereby in accordance with the rules of this court and have thus simplified our labors greatly and assisted us to render a clearer and more succinct opinion. We approve most highly of their action, and only wish that the rule was observed in as creditable a manner in other cases as in this. These propositions are as follows, and we consider them in their order:
"1. Where a mining lease does not provide any time within which the lessee must begin mining and the sole consideration accruing to the lessor thereunder is the promise of the lessee to pay to lessor a royalty only on such ore as may be mined and shipped from the demised premises, and gives to lessee the sole and absolute right without payment of consideration to lessor for the exercise of such right, to terminate and cancel the lease for any cause or without cause, in the sole discretion of lessee, such lease is voidable for want of mutuality.
"2. In the absence of any express covenant upon the subject there is an implied covenant that the lessee in a mining lease, where the sole consideration accruing to the lessor is the promise of the lessee to pay to lessor a royalty only on such ore as may be mined and shipped from the demised premises, will prosecute the work of mining and shipping with reasonable diligence and continuity of effort, and the failure or refusal of the lessee to so prosecute such work constitutes a breach of contract and a failure of consideration which entitled the lessor to have such lease cancelled and to be restored to possession.
"3. In a mining lease wherein the lessee agrees to pay lessor a royalty on all ore mined and shipped in the following language, to-wit: 'To pay to the parties of the first part a royalty on all ore extracted and shipped from said mining claims and premises, of one dollar per ton on all feldspar shipped and seventy-five cents per ton on all silica shipped from said premises. Payments on account of royalty shall be made on or before the 10th day of each month for all ores shipped and upon which returns have been received during the preceding month.'
[41 Ariz. 379] "The word 'returns' as so used, in the absence of any evidence showing a different intention on the part of the lessor and lessee, must be taken to mean return of railroad scale weights."
A brief statement of certain facts is necessary. In 1924, Taylor and Mansfield, who were then the owners of the claims involved in this action, leased the claims to the predecessors in interest of defendant herein upon certain terms, the material ones of which read as follows:
"3. In consideration of this lease the parties of the second part, agree to pay as rental for ...