answered the points as follows:
1st. The right acquired by plaintiff under the agreement of December 8th, 1868, in the premises therein described, was an incorporeal right only, and upon such right ejectment will not lie, and therefore the plaintiff cannot recover.
Answer by the Court.—The first prayer is refused. We are of the opinion that by tne lease, dated December 8th, 1865, a corporeal interest in the business therein described was vested in the plaintiff, which is the proper subject of an action of ejectment
2nd. That the clause in the agreement that the plaintiff was to commence operations by the first day of April, 1S66, is a condition subsequent, and his failure to perform this condition determined his right under the agreement, and hence he cannot recover.
Answer by the Court—This prayer is also refused. The clause by which the plaintiff was to commence operations by the first day of April, 1866, is not a condition, the nonperformance of which determined the plaintiff’s rights, or worked a forfeiture of his interest under the lease.
3rd. The time mentioned in the agreement within which the plaintiff was to commence operations was of the essence of the contract, and the plaintiff not having commenced operations within that time, he cannot recover.
Answer by the Court.—The time fixed in the lease within which the plaintiff was to commence operations is of the essence of tne contract, so far as to enable the lessor, after its expiration, to maintain an action against the plaintiff for the non-performance of his-
4th. The agreement in question did not give the plaintiff any exclusive right of mining and excavating for petroleum on said premises, and hence the plaintiff cannot recover.
Answer by the Court.—This prayer is refused. The lease grants to the plaintiff, for a determinate term, the premises in dispute, for the purposes therein stated, subject to lessor’s “use of the same for the purpose of tillage;” and this is exclusive of any right of the lessor to mine or excavate within their defined limits, for petroleum, coal, rock oil, carbon oil, or other mineral or volatile substances.
5th. If the jury believe from the evidence, that prior to the lease of September 14th, 1868, to West and another, the plaintiff had abandoned all his rights under the agreement, and all intention of mining or excavating for oil, etc., on the premises therein described, then he cannot recover.
Answer by the Court.—This prayer is allowed. The jury must be satisfied by the evidence that the plaintiff intended to surrender his lease, and to abandon altogether the commencement or prosecution of mining or excavating operations, and that his acts touching such alleged abandonment were perpetrated with such intention.
The jury, after a few minutes’ consultation, returned a verdict for the plaintiff, with nominal damages and costs.