One cotenant has always had the right to perform the annual labor upon a claim as a unit, where other cotenants fail or refuse to perform the same or join with a cotenant in doing so. Saunders v. Mackey, 1885, 5 Mont. 523, 6 P. 361; Kline v. Wright, D.C. 1931, 51 F.2d 564. It is presumed that Congress had in mind all such matters, and that if it had intended to withhold the benefits of the suspension act from tenants in common where their cotenants were fortunate enough to have to pay a Federal Income Tax, it would have clearly stated the same.
(2) To use good faith toward him, not only in first duly testing the property for the existence of sulphur, but further in thereafter operating it in his interest, along with their own, to the end that he might receive the royalty it was capable of yielding. Summers, "Oil Gas," p. 431; Merrill's "Covenants Implied in Oil Gas Cases," par. 112, p. 266; Thuss on "Texas Oil and Gas," p. 154; Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039, 60 A.L.R. 890; Humphreys Oil Co. v. Tatum (C.C.A.) 26 F.2d 882; Brewster v. Lanyon Zinc Co. (C.C.A.) 140 F. 801; Kline v. Wright (D.C.) 51 F.2d 564; Poe v. Humble Oil Refining Co. (Tex.Civ.App.) 288 S.W. 264, 265; Texas Co. v. Roos (C.C.A.) 43 F.2d 1. (7) There is, too, as before indicated, affirmative charge that both of these duties toward him were negligently, fraudulently, and wholly disregarded, to his damage in at least the sum of $1 per ton on 100,000 tons of sulphur per month for the whole of the year 1927, and the first three and one-half months of 1928; his right to damages ensued perforce (Waggoner Estate v. Sigler Oil Co., and other authorities cited, supra), and, if this was not the true measure thereof, the facts relating to it were fully pleaded, and the matter became one of law for the court.