Conner

The plaintiff sued to recover the value of one-half of the gold extracted by defendant from certain mirirng property belonging to plaintiff. He was given judgment for fifteen per cent of the gold so extracted and he prosecutes this appeal from the judgment.

In the year 1911 the defendant went into possession of the property under an oral agreement to prospect and mine the same and to pay to plaintiff a royalty of from ten to twenty-five per cent, depending upon the grade of ore removed. Defendant conducted mining operations upon the property under this oral agreement until March 10, 1917, when he was given a written lease thereof for a term ending September 10, 1918. The lease provided that “the lessor, in consideration of the rents, royalties, covenants and agreements hereinafter reserved, let unto the lessee” the said mining property “together with the appurtenances to have and to hold,” etc.; that the lessee should work the mine continuously and pay the lessor “fifteen per cent royalty on all ores extracted from said mine; to timber the mine and repair old timbering when necessary; to not assign this lease, or any interest thereunder; ... to deliver up to the lessor the…