Kupoff

This is an appeal from a judgment in favor of appellee, defendant below, entered pursuant to a directed verdict. The suit is grounded on a lease and is essentially one in damages for breach by the lessor of the implied covenant of quiet enjoyment.

The lease was of the Eastern Star placer mining claim owned by appellee’s intestate, Mike Stepovich. It was executed by the latter in February of 1942 for a term ending November 1st, 1943. Appellants as lessees were to have *49 the possession and use of the buildings, machinery, tools, and equipment on the premises and were to have the right to exploit the ground insofar as it could be worked and mined through an existing shaft on the claim. 1 They were to pay as rental or royalty one-third of the gross amount of the values extracted and derived from cleanups.

The evidence is that they entered upon the ground immediately after the execution of the lease. The season being winter, the weather was cold and the ground heavily covered with snow. The shaft through which they were to operate was 76 feet in depth and was largely filled with ice. From its bottom a tunnel or drift, also ice filled, extended for a distance of about a hundred…