WOOLLEY, Circuit Judge.
[1] The matter out of which this controversy arose is stated at length in the opinion of the District Court. Several questions are presented, the principal one being whether the lease sued upon had been terminated by predecessors of the parties. A’ decision upon this question in the affirmative disposes of tíre others.
The case was tried by the court without the intervention of a jury on a state of facts largely agreed upon. The submission was general, authorizing the court to enter judgment “according as the-court may be of opinion that the plaintiffs on the one hand or the defendant on the other are entitled to a judgment upon all the facts as thus ascertained.” These facts relate generally to the-existence of the lease and to its termination. While the conflict in the court below was waged about the issue whether the lease was terminated by delivery of- a written notice (the specific method prescribed by its terms), neither the facts nor the submission restrict the decision to that issue. The facts relate an cl the submission extends to a termination of the lease by any legal, means. The District Court found that the lease was terminated, but that it was not terminated by the sole act of the lessee, either in‘delivering written notice of surrender or by abandoning the demised premises. This finding relieves us of the necessity of reviewing the line of Pennsylvania decisions against the termination of leases (notably of oil lands) by abandonment or without notice, cited by the plaintiff in error (Double v. Union H. & L. Co., 172 Pa. [807]*807389, 33 Atl. 694; Ahrns v. Chartiers Gas Co., 188 Pa. 249, 41 Atl. 739; Wilson v. Philadelphia Co., 210 Pa. 484, 60 Atl. 149), if the testimony supports a finding that the lease was legally terminated in another way. Our consideration is therefore directed mainly to the error assigned to the court in affirming the prayer that under the facts the defendant is entitled to judgment.
[2] The District Court found that mining operations were suspended by the termination of the lease, and that the lease was terminated by ouster of the lessee upon re-entry by the lessors. If this was the only finding of fact upon which the court predicated its judgment, we would be constrained to direct a reversal, for we have not found in the testimony a distinct act of ouster in its purely technical sense. The elemental idea of ouster is dispossession, which in turn means ejectment or exclusion of one from, the realty; if not to his injury, then certainly against his interest and without his consent. But in finding ouster by the lessors as a fact, the District Court went further and in the same connection found as a fact that the ouster was acquiesced in and accepted by tlie lessee, the two findings being joined in the following paragraph:
“On or about June, 1889, a full settlement of all royalties or rentals was made between tbe parties, and there was a re-entry upon the demised premises by the lessors and an ouster of the lessees which was acquiesced in and accepted by theni.”
From this language it appears that while the court found a re-eutry by the lessors, it did not mean a re-entry in its technical sense, for the re-entry it found was not adverse to or against the will or interest of the lessee, but on the contrary met with the lessee’s acquiescence and acceptance. The court clearly meant what the evidence amply shows that the parties acted in concert, that the conduct of each was consistent with that of the other, and that the conduct of both was based upon mutual consent. Therefore, except for the word ouster, if viewed in its technical sense, we discern no error by the District Court in reaching a conclusion from the admissible inferences of the testimony, that the lease was terminated by the mutual consent of the parties. This we conceive to be the substance of the court’s decision.
Owing to the lapse of time and the death of parties, the trial court was not aided by direct testimony'in deciding the question of the termination of the lease, but was left very much to inferences to be drawn from the conduct of parties. While there was no occasion to interpret the terms of the lease in connection with the question of its termination and to that end invoke the rule that the interpretation which the parlies themselves had placed upon it by their conduct should prevail (Otis v. Coal Co., 199 Fed. 86, 117 C. C. A. 598; Myers’ Estate, 238 Pa. 195, 86 Atl. 89), the learned trial judge, without expressly so stating, evidently applied the principle of that rule to the matter before him, atxd decided the matter as it was shown that the parties by their conduct had treated it.
If the parties in their acts treated the lease as terminated, the court did not likely go astray if it viewed the lease in the same light in which they regarded it. On the other hand, if the conduct of one [808] party was .not consistent- with that of the other and failed to show a common understanding that the lease was ended, then different inferences would compel a different method of solution with probably a .different result.
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WOOLLEY, Circuit Judge.
[1] The matter out of which this controversy arose is stated at length in the opinion of the District Court. Several questions are presented, the principal one being whether the lease sued upon had been terminated by predecessors of the parties. A’ decision upon this question in the affirmative disposes of tíre others.
The case was tried by the court without the intervention of a jury on a state of facts largely agreed upon. The submission was general, authorizing the court to enter judgment “according as the-court may be of opinion that the plaintiffs on the one hand or the defendant on the other are entitled to a judgment upon all the facts as thus ascertained.” These facts relate generally to the-existence of the lease and to its termination. While the conflict in the court below was waged about the issue whether the lease was terminated by delivery of- a written notice (the specific method prescribed by its terms), neither the facts nor the submission restrict the decision to that issue. The facts relate an cl the submission extends to a termination of the lease by any legal, means. The District Court found that the lease was terminated, but that it was not terminated by the sole act of the lessee, either in‘delivering written notice of surrender or by abandoning the demised premises. This finding relieves us of the necessity of reviewing the line of Pennsylvania decisions against the termination of leases (notably of oil lands) by abandonment or without notice, cited by the plaintiff in error (Double v. Union H. & L. Co., 172 Pa. [807]*807389, 33 Atl. 694; Ahrns v. Chartiers Gas Co., 188 Pa. 249, 41 Atl. 739; Wilson v. Philadelphia Co., 210 Pa. 484, 60 Atl. 149), if the testimony supports a finding that the lease was legally terminated in another way. Our consideration is therefore directed mainly to the error assigned to the court in affirming the prayer that under the facts the defendant is entitled to judgment.
[2] The District Court found that mining operations were suspended by the termination of the lease, and that the lease was terminated by ouster of the lessee upon re-entry by the lessors. If this was the only finding of fact upon which the court predicated its judgment, we would be constrained to direct a reversal, for we have not found in the testimony a distinct act of ouster in its purely technical sense. The elemental idea of ouster is dispossession, which in turn means ejectment or exclusion of one from, the realty; if not to his injury, then certainly against his interest and without his consent. But in finding ouster by the lessors as a fact, the District Court went further and in the same connection found as a fact that the ouster was acquiesced in and accepted by tlie lessee, the two findings being joined in the following paragraph:
“On or about June, 1889, a full settlement of all royalties or rentals was made between tbe parties, and there was a re-entry upon the demised premises by the lessors and an ouster of the lessees which was acquiesced in and accepted by theni.”
From this language it appears that while the court found a re-eutry by the lessors, it did not mean a re-entry in its technical sense, for the re-entry it found was not adverse to or against the will or interest of the lessee, but on the contrary met with the lessee’s acquiescence and acceptance. The court clearly meant what the evidence amply shows that the parties acted in concert, that the conduct of each was consistent with that of the other, and that the conduct of both was based upon mutual consent. Therefore, except for the word ouster, if viewed in its technical sense, we discern no error by the District Court in reaching a conclusion from the admissible inferences of the testimony, that the lease was terminated by the mutual consent of the parties. This we conceive to be the substance of the court’s decision.
Owing to the lapse of time and the death of parties, the trial court was not aided by direct testimony'in deciding the question of the termination of the lease, but was left very much to inferences to be drawn from the conduct of parties. While there was no occasion to interpret the terms of the lease in connection with the question of its termination and to that end invoke the rule that the interpretation which the parlies themselves had placed upon it by their conduct should prevail (Otis v. Coal Co., 199 Fed. 86, 117 C. C. A. 598; Myers’ Estate, 238 Pa. 195, 86 Atl. 89), the learned trial judge, without expressly so stating, evidently applied the principle of that rule to the matter before him, atxd decided the matter as it was shown that the parties by their conduct had treated it.
If the parties in their acts treated the lease as terminated, the court did not likely go astray if it viewed the lease in the same light in which they regarded it. On the other hand, if the conduct of one [808] party was .not consistent- with that of the other and failed to show a common understanding that the lease was ended, then different inferences would compel a different method of solution with probably a .different result.
Something happened in 1889 that changed the relations of the parties to the lease.- Something transpired at that time between the lessors and the lessee which at least suspended all operations under the lease. Of this the evidence is quite conclusive. It is equally certain that the thing which resulted in the suspension of operations was done with the consent of both the lessors and the lessee. Just what was done to cause the suspension is not entirely clear, and whether the acts of the parties in suspending operations went further and put an end to the lease is not established by direct evidence. But the extent of .the transaction and its legal effect, we think,, may be gathered from its proper inferences and from inferences properly arising from the conduct of the parties subsequently pursued. In fact, if this case i.s capable of a correct decision upon the testimony submitted, this is the only way to decide it. Without reciting or summarizing the testimony, it is sufficient to say that, viewing the reasons leading up to the transaction of 1889 and giving to that transaction and to the conduct which the parties pursued thereunder all their admissible inferences, we are satisfied that the lease was not merely suspended but was terminated, and that it was terminated not by formal notice or abandonment, but by mutual consent of the parties. This is shown by the trend of affairs in mining and smelting in that district and by the losses which in changed conditions were attendant upon both. It is evidenced by the settlement respecting royalties coincident with the stopping of mining operations which had all the appearance of a settlement intended,,by the parties to be final. It is further shown by the subsequent omission of the lessee to pay and of tire lessors to demand royalties for a long term of years, the dismantlement of the plant by the lessee and the removal of its implements observed and unopposed by the lessors, such, dismantlement being provided., for by the lease but being permissible only after its termination, the withdrawal from the property and its surrender by the lessee, re-entry by certain of the lessors and subsequent sale of a part which under the lease would belong to the lessee, and the entire acquiescence of each party in the acts and conduct of the other. By this conduct, which included relinquishment by the lessee of all rights in the property and resumption by the lessors of rights that had theretofore belonged to the lessee, we are led to believe that the parties treated the lease as ended. Though the- lease contained a provision for surrender upon written notice, such a provision did not preclude the parties from waiving it and from ending the lease by other means equally legal. This we think the parties did by mutually consenting to its termination. The proper inferences from the conduct of the parties support this conclusion, and in adopting the interpretation of the parties as its own, tire trial court committed no error.
The judgment below is affirmed.