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The grantor cannot acquire a hostile title with which to defeat his own sale.-Drake v. Gilpin Co. 16 Colo. 231.

Where each party has been trying to overreach the other neither can obtain relief.-Williams v. Spurr, 7 M. R. 17.

MINING LEASE.

Written or Verbal.-The lease if for more than one year must be in writing to avoid the Statute of Frauds (M. A. S. & 2021) and should be recorded. If for a less period it is still in general reduced to writing and the covenants being peculiar cannot be too particularly expressed.

Set Work. In large mines worked on the tribute system, the lease is usually verbal between the manager and the miner, and is more in the nature of a contract of hiring, the foreman retaining general control of the work.

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Dead Work. The following form is correct to the extent of the usual covenants, but there are often special covenants added in regard to "dead work" and other matters. Dead work is a term of the popular language and means sinking shafts and running drifts, adits or cross-cuts, or it may embrace everything except stoping and the timbering incidental to stoping. Its meaning being so general it should not be used at all in the instrument and the intention should be covered by more exact expressions.

It is a common stipulation to require no royalty for ore extracted in sinking or in driving levels. Where dead work is to be paid for, care should be taken to express whether the compensation is to come "out of the first mill returns" or "out of the royalty." In the latter case the lessor pays for all of it. In the former

he pays a share equivalent to his proportion of the proceeds. In wording this covenant a personal liability may be incurred if not properly expressed.

The Royalty Reserved Necessarily Varies, 20 or 25 per cent. being the usual amount, and 5 and 75 per cent. being extreme limits.

FORM OF LODE LEASE.

THIS INDENTURE, made this first day of May, in the year of our Lord one thousand nine hundred, between Charles J. Grist, of London, England, lessor, and A. B. Minor, of Lincoln, State of Nebraska, lessee or tenant: Witnesseth, that the said lessor, for and in consideration of the royalties, covenants and agreements hereinafter reserved, and by the said lessee to be paid, kept and performed hath granted, demised, and let and by these presents doth grant, demise and let unto the said lessee all the following described mine and mining property, situate in Four Mile Mining District, County of Routt, State of Colorado, to wit: The Owl Bird Lode Mining Claim, Survey Lot No. 172, together with the appurtenances.

To have and to hold unto the said lessee, for the term of one year from date hereof, expiring at noon on the 1st day of May, 1901, unless sooner forfeited or determined through the violation of any covenant hereinafter against the said tenant reserved. And in consideration of such demise, the said lessee doth covenant and agree with said lessor as follows, to wit:

1. To enter upon said mine, or premises, and work the same mine-fashion, in manner necessary to good and economical mining, so as to take out the greatest amount of ore possible, with due regard to the development and preservation of the same as a workable mine, and to the special covenants hereinafter reserved.

2. To work and mine said premises as aforesaid steadily and continuously from the date of this lease with at least two persons employed underground, for at least 20 shifts each in each calendar month.

3. To well and sufficiently timber said mine at all points where proper, in accordance with good mining; and to repair all old timbering wherever it may become necessary.

4. To allow said lessor and his agents from time to time, to enter upon and into all parts of said mine for purposes of inspection.

5. To not assign this lease or any interest thereunder, and to not sublet the said premises or any part thereof, without the written assent of said lessor, and to not allow any person not in privity with the parties hereto, to take or hold possession of said premises, or any part thereof, under any pretense whatever.

6. To occupy and hold all cross or parallel lodes, spurs or mineral deposits of any kind which may be discovered by the said lessee, or any person under him, in any manner, by working

within, or from the demised ground, as the property of said lessor with privilege to said lessee of working the same as parcel of said demised premises.

7. To keep at all times the drifts, shafts, tunnels and other workings thoroughly drained and clear of loose rock and rubbish, unless prevented by extraordinary mining casualty.

8. To do no underhand stoping, and to make all shafts 7 feet long by 4 feet wide in the clear, and all drifts 6 feet high by 4 feet wide in the clear.

9. To pay to said lessor as royalty 25 per cent. of the net mill returns of all ore to be extracted from said premises by delivery of such ore with all convenient speed in lots as mined to some mill or regular ore buyer in Denver or Pueblo, and leaving with such mill or ore buyer the percentage of mill returns aforesaid for delivery to the lessor.

10. To deliver to said lessor the said premises with the appurtenances, and all improvements in good order and condition, with all drifts, shafts, tunnels and other passages thoroughly clear of loose rock and rubbish, and drained, and the mine ready for immediate continued working (accidents not arising from negligence alone excusing) without demand or further notice, on the said 1st day of May, A. D. 1901, at noon, or at any time previous, upon demand for forfeiture.

11. And finally, that upon violation of any covenant or covenants hereinbefore reserved, the term of this lease shall, at the option of the said lessor, expire, and the same and said premises, with the appurtenances, shall become forfeit to said lessor; and said lessor or his agent may thereupon, after demand of possession in writing enter upon said premises and dispossess all persons occupying the same, with or without force and with or without process of law; or at the option of said lessor the said tenant and all persons found in occupation may be proceeded against as guilty of unalwful detainer.

Each and every clause and covenant of this Indenture shall extend to the heirs, executors, administrators and lawful assigns of all parties hereto.

In witness whereof, the said parties have hereunto set their hands and seals. CHARLES J. GRIST. [SEAL.] A. B. MINOR. [SEAL.]

For acknowledgment, if desired, see page 221. Special Covenant Against Miner's Liens.-8 a. To promptly pay for all labor and supplies to be done for, or furnished to, the said lessee or any person or persons under or in privity with him upon said premises, and to deliver to the lessor on or before the fifteenth day of each calendar month during the term of this lease, a written statement showing that all labor and supplies have been paid for, or the amount due and owing for such labor and supplies; and if any lien be filed or if any such report shows any part of the pay roll, or other mine indebtedness unpaid, or if such indebtedness exist, whether shown by such report or otherwise, the lessor may, at his election, declare a forfeiture of this lease as hereinafter provided.

Covenant to Keep Notice Posted.-To at all times keep and maintain posted on said premises and each claim thereof a notice in substance, as follows:

For form of notice see p. 219.

On low grade lodes reservations of a graded royalty are common. In such case discard covenant 9 above printed and insert:

Covenant for Graded Royalty.-9. To pay to said lessor as royalty 10 per cent. of the net mill returns of all ore to be extracted from said premises running 30 ounces of silver or under to the ton; 20 per cent. on ore running over 30 and not exceeding 50 ounces to the ton; 30 per cent. on all ore running over 50 ounces-by delivering all the ore in lots as mined to some mill or to some regular ore buyer in Denver or Pueblo and leaving with such mill or ore buyer the several percentages of mill returns as aforesaid for delivery to the lessor.

Estimate of royalty after deducting freight and mill charges is said to be based on the "net" mill returns. Where the royalty is much graded and made dependent on the amount of lead or copper as well as silver or gold, the more simple form is to reserve it on the price per ton" paid by the ore buyer, which is 90 to 95 per cent. of the bullion and base metal value, after deducting treatment charges; but in the "price per ton" the freight has not been estimated.

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Royalty on Price per Ton.-9 a. To pay to said lessor as royalty 10 per cent. of the net mill returns of all ore sold for $10 per ton or less, net price after deducting freight and mill charges, and 20 per cent. of the like net mill returns of all ore sold for more than $20 per ton net price as aforesaid by delivering all the ore in lots as mined to some mill or to some regular ore buyer in Denver or Pueblo, and leaving with such mill or ore buyer the several percentages aforesaid for delivery to the lessor.

The mill returns on which settlements between lessor and lessee are made are substantially according to the following form:

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0.12

Amount

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.11 $50.04 $843.67

Less 20 per cent. Royalty to E. Le Neve Foster, $168.73 Less Sampling Charges, Less Freight.

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75.78

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