Baxter Springs news. [volume] (Baxter Springs, Kan.) 1882-1919, 1910-10-06

lease from his Lessor, he admits
and anlrms his lessons ability
\ to make such new lease, which
could not be done BY him II the
old lease stood In his way,
Same doctrine IN Wood Land.
Ten. p. l92; Tayl. Landl. &
Ten p. 512; 2 LOmax, Dig. 1O5.
Where, pending lease, q sec
Ond lease IL made contai, ming
stipulatiOns inconsistent with
the former lease, the latter shall
prevail; the presumption being
that q surrender Of the old one
was intended"
Wood, Landil. & Ten. p. 492.
See. also Donkersley vs. Levy, SO
Mich. 81; Enyeart Va. Davis. (Neb. }
20 N. W. 44s, Leyman vs.. Abeel Is
JONAS 80.
1t Is my opinion that the lease Of
April 4. 1905, to the Mining Com
pany operated to cancel and annul
the former lease originally given to
Abrams, and assigned to the Min
ing Company. AS to the respective
rights Of Thompson holding under
the Thompson & Jones lease, ON
one hand. and the Mining Company,
under the lease Of April I, 1905, on
the other, that Is a question not in
vOlved here. Each provides for a
royalty Of five per cent. Of the ore
produced, and i find nothing in eth
er lease which 10 violative of the act
permitting such leases. Taking up
the lease TO the Iowa & Oklahoma
Mining Company, dated May -,
1906, It will be noted that in this
lease 1t 10 attempted to continue In
force all former leases to this com
pany, either as lessee or assignee, as
well as create q new lease, and So
that all may be considered as run
ming cOncurrently the Mining Com
pany reserving the right to elect at
any time under which lease It will
operate and make payment and that
payment under one shall amount to|
payment under all. That Is paipa-
bly, an effort to combine the term
and conditions Of the several leases
into one lease; to cover the combined
terms Of all, amounting to more
than ten years, and is invalid
The lease Of date July %, 1906,
to the Iowa & Oklahoma Mining
Company, is. as we have seen, for
the term Of twenty years. and there
for invalid.
IL the conclusion that the lease to
the Mining Company, of April 4,
1905, operated to cancel and annulI
the former leases which 1t held as
assignee, being the leases originally
made to defendant Abrams 10 cor
rect, then by the contract Of the
parties the Abrams leases are Of mol
eject, and q decree cancellIng them
would serve to clear the record. The
leases Of May IL, and July 2Sth,
1905, to the Iowa & Oklahoma Min
Ing Company, are invalid, and should
be cancelled. The demurrers of
the defendant Abrams. and the Iowa
& Oklahoma Mining Company. will
therefore be overruled. The demur-
rer Of defendant, A. j. Thompson,
will be sustained.
On August 16, 1902, the allottee
entered into q contract with Charles
F. Noble, purpOrtlng to grant, bar
gain, sell, assign. Transfer and set
over" to said Noble. all his rights,
title and interest in and to the roy
atty, rental, and proceeds Of the
mining lease executed by the allOt-
tee to defendant Abrams under date
Of January IL, 1909. We have seen
that this lease provided for a cash
payment Of ten dollars, at date OF
execution and "a sum Of money
equal to Ave per centum Of the. MARI
ket value at the place mined or pro-
duced" Of all substances to be min
ed, except gas, for which lessee was
to. pay forty dollars per. annum for
each paying well; and further pro-
vided for q minimum annual royal
ty of twenty dollars. The royalty
was to be paid in money. based upon
q percentum Of the market value Of
the ore produced. A One-half inter
est in this contract was later as
signed by Defendant Noble to De
PENDANT Cooper. II Is further al
legged that on February 81. 1906, the
alIOttee entered into q contract with
defendants A. s. and v. e. ThOmp-
son, whereby he assigned to them as
q fee for their services in litigation
arising out Of the assignment to
Noble, one-half Of the royalties re-
oovorod nv the ailofkea In auch liti- /