that complainants were out of possession, and should be remitted to an ejectment to establish their title at law.

As to the other objections to the jurisdiction of equity, they require but a brief notice. The bill is a bill to stay waste, and that the damage threatened, even if not irreparable, is entirely incapable of measurement at law, cannot be seriously questioned. Such cases were among the earliest, and have always been among the most incontestable, within the chancellor's jurisdiction. It is superfluous to cite authorities for so familiar a principle, but I may refer to Allison's Appeal (1875), 77 Pa. 221, as a recent case in this Court, where the invasion restrained, was of complainants' right to oil, a fluid far more capable of accurate measurement than gas.

The learned master having come to the conclusion that the bill should be dismissed for want of equity, forbore to consider and pass upon the substantial issues raised by the pleadings. But as the evidence was fully taken by both parties before him, and he has found all the facts necessary to a final determination of the whole controversy, we will proceed to consider it. The actual facts, as already said, are not disputed, and both issues substantially depend upon the construction of the lease. We have therefore to consider-First, whether the well threatened to be put down by respondents was upon the leased land. Of this there cannot be the slightest doubt. The lease is of "all that certain tract of land," etc. This means the whole tract. The grant is limited as to the intention "for the sole and only purpose of drilling and operating wells," etc., but is not limited as to territory. Following the description of the tract is the clause on which respondents rely

"No wells to be drilled within three hundred yards of the brick building belonging to J. H. Brown."

The well which respondents propose to bore is within this prohibited distance; and the respondents claim that Brown, and they as his lessees, have the right to drill wells within that part of the territory. But the clause in question is neither a reservation nor an exception as to the land, but a limitation as to the privilege granted. It does not, in any way, diminish the area of the land leased, that is still the whole tract; but it restricts the operations of the lessees in VOL. XXXVIII.—7

putting down wells to the portions outside of the prohibited distance. For right of way and other purposes of the lease, excepting the location of wells, the space inside the stipulated line is as much leased to the lessee as any other part of the tract. The terms of the grant would imply the reservation to the lessor of the possession of the soil for purposes other than those granted to the lessee, and the parties have expressed what otherwise would have been implied by the provision that the lessor is to fully use and enjoy the said premises for the purpose of tillage, except such part as shall be necessary for said operating purposes.

From the nature of gas and gas operations, already discussed, the grant of well-rights is necessarily exclusive. It was so held even as to oil-wells, in Funk v. Haldeman (1867), 53 Pa. 229, 247, 248, although, in that case, the plaintiff had a mere license to enter, etc., and not, as complainants here, a lease of the land; and it is exclusive, in the present case, over the whole tract. As already said, the clause relative to the 300-yards distance was a restriction on the privilege granted, not a reservation of any land, or any boring rights, to the lessor; and a well upon the prohibited portion was just as damaging to the lessees as upon any other portion of the tract. The drilling of the well threatened by respondents, is therefore in violation of the lease, and should be enjoined if the lease is still in force.

Secondly, has there been a forfeiture of the lease? It is claimed by respondents on account of the failure of the lessee to make certain stipulated payments. The lease is dated December 7, 1885, and by its terms the lessee was to pay $500 a year for each gas-well, payable quarterly, in advance, from the completion of each and every well; and in case one well should not be completed within three months from the date of the lease, then to pay

"For such delay the sum of one hundred and twenty-five dollars every three months from the date of this agreement; *** and [lessor] agrees to accept such sum as full consideration and payment for such delay until one well shall be completed; and a failure to complete one well, or to make any of such payments. within such time and at such place as above mentioned, renders this lease null and void. *** It is further agreed that if any of the within payments remain unpaid thirty days, then this lease to be null and void.”

These are all the provisions which bear upon the present question, and their effect is entirely clear. One well is to be completed in three months, and the rent is to begin from its completion. This is the primary intent and expectation of the parties. But, if not so completed, then the lessee is to pay a like amount from the date of the agreement, until one well is completed, and thereafter, of course, the payments are not to be for delay at the end of each three months, but as rent, quarterly, in advance. A failure to pay any of the sums due for a period of 30 days, is to render the lease null and void. The first provision for forfeiture cannot be read literally and separately, as it is in manifest conflict with the other covenants. Thus it invokes a forfeiture for failure to complete one well in three months, but in so doing it is repugnant to the agreement to accept the stipulated " full consideration and the payment for delay." Again, it imposes the forfeiture for failure to make any of the payments at the time and place mentioned, and in so doing is in conflict with the subsequent agreement that the forfeiture shall only be for a default of 30 days. Reading all these clauses together, therefore, as we are bound to do, the last-mentioned clause, calling for a forfeiture upon a default of 30 days in the payments, is the only one that is effective for the purpose of forfeiture.

Before passing to the acts of the parties, it may be well to notice very briefly the construction of the agreement set up by the respondents in their answer, though not pressed in their argument. It is that the default in payment ipso facto created a forfeiture; or, in other words, that the forfeiture was absolute and self-operating, without regard to the acts or wishes of the parties. Such a construction is utterly untenable. It is contrary, not only to the settled rules of law, but to the manifest intentions of the parties. This question is definitively settled in Wills v. Gas Co. (at the present term, Nov. 11, 1889), the opinion in which is filed herewith by our Brother CLARK. Coming now to the facts as reported by the master and practically undisputed, we find that the parties from the outset, entirely disregarded the strict times and terms of payment, as set out in the lease. On the day following the date of the lease, the lessees paid $250 on account. It is admitted

that such payment was made, and that it was a voluntary advance, as nothing was or would be due under the lease for three months, and then only half that amount. In June, another payment of $250 was made, and this, again, was more than was due under any possible construction of the lease. A quarterly payment for delay had become due on March 7, 1886. The well being completed April 23, there would, under the construction contended for by the lessor, then be due compensation for the 46 days of additional delay, amounting to $65, and a quarter's rent in advance, which latter was covered by the advance of $250 in the previous December. The June payment, therefore, fully covered this $65, another quarter's rent from July 23 to October 23, and an advance of $60— nearly one-half the quarter's rent that would become due in October, four months later. This calculation, as already said, is upon the most favorable possible construction for the lessor. But in fact there is not the slightest doubt that both parties entirely disregarded the strict terms of the lease as to times of payment, and treated the payments of December and June as semi-annual advances of the stipulated sum, no matter whether called "compensation for delay" or "rent," as the amounts in either case were exactly the same. Neither party paid the least attention to the possible fag end of a quarter's delay, the lessor never demanded it, no reference to it was made at the time of the June payment, and it made its appearance in the transactions months later as an after-thought.

Forfeitures, if no longer odious-and I for one am too strongly in favor of the enforcement of contracts as parties make them, to apply harsh names to strict constructions-are yet not favored, either at law or equity, and among the least favored have always been those founded on mere delay in the payment of money. In this case, there is not the slightest pretense of any other ground for forfeiture, than the failure to pay a small amount of money in advance. As already shown, not a single payment under this lease was made strictly according to its terms; the departure was begun by the lessor's request, and was always in his favor. To allow him now to turn around without notice and enforce a forfeiture for a fail

ure of the insignificant proportions shown, would be sanctioning a fraud such as no court has ever permitted.

There is another ground equally fatal. Forfeitures are always strictly construed; and, looking at the facts, none has been incurred here, even on respondent's own view of the amounts due. As already seen, the June payment, deducting the $65 for delay, still paid the quarter's rent beginning July 23, and nearly half of the quarter beginning October 23, 1886. Under the lease, a forfeiture would not be incurred unless a payment should remain unpaid for 30 days. On October 23, a quarter's rent was due in advance, but only half of it was unpaid, for half of it had been paid in advance in the preceding June. The lease does not provide a forfeiture for failure to pay a balance, but only "if any of the within payments remain unpaid," which means a whole payment, not a balance on a running account. No forfeiture, therefore, was incurred, or could be, until the next payment should become due and be unpaid for 30 days. The next quarter day was January 23, 1887; and a week before that date, on January 15, the lessees tendered the rent to Brown, and it was refused. The master's findings of fact, under the view he took, do not extend to the occurrences of January 15, 1887; but the testimony was taken by both parties, and leaves no doubt that there was a valid tender. Both Rhodes and Webb say the money was held in one hand, where Brown could see it, while the voucher was read to him; and Brown himself says Rhodes told him he had come to pay, though he did not actually see the money, and that he told Rhodes it would "be altogether unnecessary" to show the money. This, under the circumstances, dispensed with further formalities. Whether, therefore, we regard the strict conditions of the lease as waived by the conduct of the parties, or the failure in payment as only a partial and incomplete default, it is equally clear that there was no forfeiture, and the respondents have failed to show any defense to the bill.

The decree is reversed, the bill reinstated, and the injunction reinstated, made perpetual, and directed to be so issued; costs to be paid by the appellees; and the record is remitted to the Court below to execute this order.