Speck

The appeal is from a judgment of dismissal entered upon the granting of a motion to dismiss directed to appellants’ complaint.

Appellants and two others own a body of coal land in Montana. The owners other than appellants declined to join in the suit and were made defendants.

In 1928 appellants and their co-owners, as lessors, executed a lease of the property to appellee as lessee. The complaint avers that the lessee, without the consent of the lessors, has transported coal of the lessee mined by it on other property adjoining and adjacent to the leased property and in the vicinity thereof, in which lessors have no interest, upon and through the leased premises, both upon its surface and through its underground tunnels, and passageways and through shafts and tipples below and on the surface of the leased property. The alien coal transported through the mine was of the quantity of 411,878 tons. The reasonable value of the use of the property for such haulage purposes is said to be five cents per ton, in which amount appellee is alleged to be indebted to the lessors.

A copy of the lease is attached to the complaint as an exhibit. By this instrument the lessors “leasp, let and…