N. S. 117, 101 L. T. N. S. 785, 74 J. P. 57, 26 Times L. R. 190, 47 Scot. L. R. 612.

The question has been discussed by some of the American courts, and we believe there is a reasonable degree of unanimity as to the meaning of the term, although there are some apparent discrepancies in the application of it to particular substances. In the case of Hendler v. Lehigh Valley R. Co. 209 Pa. 256, 103 Am. St. Rep. 1005, 58 Atl. 486, the Pennsylvania supreme court had under consideration the question of whether sand was a mineral and included within the terms of such a grant. The conclusion reached by that court was that this term, in its commercial sense, may be defined as any inorganic substance found in nature having sufficient value, separate from its situs as part of the earth, to be mined, quarried, or dug for its own sake, or its own specific use. The supreme court of Tennessee, in the case of Murray v. Allred, 100 Tenn. 100, 39 L.R.A. 249, 66 Am. St. Rep. 740, 43 S. W. 355, 19 Mor. Min. Rep. 169, had under consideration the question of whether or not petroleum oil and gas were included within the term "mineral." It was held that these substances were minerals, and in the discussion the conclusion reached by the Pennsylvania court above referred to was apparently approved. So, in the case of Armstrong v. Lake Champlain Granite Co. 147 N. Y. 495, 49 Am. St. Rep. 683, 42 N. E. 186, 18 Mor. Min. Rep. 279, the court of appeals of New York had under consideration the question of whether granite was included within a grant of minerals, and after an elaborate review of the authorities comes to a similar conclusion with that reached by the Pennsylvania court in the case above referred to, when there is no aid in construing the term from the circumstances surrounding the parties at the time, or from the paper itself. So, in the case of Brady v. Smith, 181 N. Y. 178, 106 Am. St. Rep. 531, 73 N. E. 963, 2

Ann. Cas. 636, the question was again under discussion by the court of appeals of New York, and the. conclusion reached that limestone was not included in the grant, for the reason that it could be determined from the language used that the parties only intended such minerals as were secured by the ordinary processes of mining.

Numerous holdings in particular cases might be found to the effect that stone used for road making and paving, limestone, flint stone, slate, clay, and other like materials, are minerals; but it will be apparent from a reading of the cases that much stress is laid upon the language used by the parties in the grant, not only that language which describes the substance of the grant, but as well any other language used which would throw light on what the parties intended when they used such a term as mineral or mines. Frequently the character of the mining rights granted has been held to determine the limit of the substance granted, as in the two New York cases above cited. It would seem that the terms "mine" and "mineral" are not definite terms. They are susceptible of limitation according to the intention with which the parties use them, and in their construction regard must be had not only to the deed in which they occur, but also to the relative position of the parties interested, and to the substance of the transaction or arrangement which the grant embodies. Consequently in themselves these terms are incapable of a definition, which mineral. would be universal

Definition

ly applicable. Lindley, Mines & Min. §§ 87 et seq., where the question is elaborately discussed; 18 R. C. L. p. 1093; Sult v. A. Hochstetter Oil Co. 63 W. Va. 317-323, 61 S. E. 307. It would not do to say that the term includes only such substances as are procured by tunneling and shafting, for it is well known that much gold was procured by the process of placer mining, and surely

no one would contend that the term "mineral" did not include gold, whether found upon the surface, in the bed of a stream, or as the result of shafting and tunneling for the ore. It is also well known that rich deposits of manganese and other like ores are found upon the surface of the earth, and are sometimes secured without either quarrying or mining, and it could not be contended that such ores when so found are not minerals, but when secured by the process of tunneling and shafting, or other similar mining processes, are minerals.

In this case we have no evidence as to the situation of the parties at the time of the grant, or their conduct under it, which would aid us in the interpretation of it. We have, however, language used in the deed conveying certain mining rights. The grant of these rights is to mine, excavate, and remove all the coal, make and maintain all necessary railroads, excavations, ways, shafts, drain ways, and openings necessary and convenient for the mining and removal of said coal and other minerals. Substantial aid is afforded by this language in determining what the parties meant by the term "other minerals" in the grant. rights granted for the removal of these minerals are such rights as are incident to the production of minerals by means of mines; that is, by shafting or tunneling. It would seem quite clear that it was within the contemplation of the parties that the minerals granted were such as it was necessary to mine for; that is, either to tunnel for or produce by sinking shafts and tunnels therefrom. These rights granted would not be incident to their production in other ways; and so we think, as was held by the court of

The

appeals of New York in the cases above referred to, that the meaning of the words used in the grant, when construed in the light of this language used in granting the mining rights, is limited to such

minerals as are se

Mines-grantconstruction.

cured by the ordinary processes of mining. The bill in this case avers that this seam of clay is valuable for manufacturing brick and for other manufacturing and mercantile purposes, and is separate from, and not a part of, the soil on said tract used for agricultural purposes. This language is not equivalent to saying that it is secured by the process ordinarily termed that of mining. It says that the clay is separate from that part of the soil used for agricultural purposes, but it does not undertake to aver, nor is it anywhere shown in the case, that this mineral is produced by tunneling therefor, or by shafting therefor, or just in what manner it is produced. We cannot see from the pleadings in this case, and the pleadings are all we have, that the plaintiff has made a case which brings this seam of clay within the terms of its grant.

Such being the case, we are of opinion to affirm the decree complained of.

Petition for rehearing denied January 8, 1919.

NOTE.

The question as to what are "minerals" within deed, lease, or license is the subject of the annotation following HUDSON v. MCGUIRE, post, 156; specifically as to clay, see subd. II. a, of that annotation.

Deed

V.

construction ascertained.

The facts are stated in the opinion Messrs. W. H. Flanory and Davis M. Howerton, for appellants:

The deed contains language showing that the grant limited the minerals conveyed to those which could be prospected for, mined, and smelted.

McKinney v. Central Kentucky Natural Gas Co. 134 Ky. 239, 120 S. W. 314, 20 Ann. Cas. 934; Kentucky Diamond Min. & Developing Co. v. Kentucky Transvaal Diamond Co. 141 Ky. 97, 132 S. W. 397, Ann. Cas. 1912C, 417; Scott v. Laws, 185 Ky. 440, 13 A.L.R. 369, 215 S. W. 81.

Messrs. E. F. Trabue, H. S. McGuire, and J. T. Metcalf, for appellee:

A mineral not in the minds of the grantor and grantee was not intended to pass, and such intention controls.

Lovelace v. Southwestern Petroleum Co. C. C. A. —, 267 Fed. 513, affirming 267 Fed. 504.

of the court.

Carroll, Ch. J., delivered the opinion of the court:

In April, 1891, Henry Fraley executed and delivered to W. E. Casto the following deed: "This deed between Henry Fraley, of Lee county, state of Kentucky, of the first part, and W. E. Casto, of Lee county, Kentucky, of the second part, witnesseth, that the said party of the first part in consideration of $75, the receipt of which is hereby acknowledged, do hereby sell, grant, and convey, to the party of the second part, his heirs, and assigns, the following described property, viz.: All of the minerals (except stone coal), with necessary right of ways and privileges for prospecting, mining, and smelting on my tract of

land lying on the waters of Hell creek, a tributary of the Kentucky river, in Lee county, state of Kentucky. [Following this is a description of the land.] To have and to hold the same, with all the appurtenances thereon, to the second party, his heirs, and assigns forever, with covenant of general warranty."

Fraley and Casto are dead, and this controversy involves the single question whether the deed passed the oil and gas rights and privileges to Casto.

Hudson and Collins, who have a regular title from the heirs of Fraley, assert that the oil and gas rights and privileges were not conveyed by him to Casto, and brought this suit against McGuire, a remote vendee of Casto, who claims that the oil and gas privileges did pass under the deed, to have their alleged title to the oil and gas rights quieted. In their petition they averred: "That the oil and gas privileges and rights were not conveyed by Henry Fraley, deceased, to W. E. Často under and by virtue of the Casto deed, and that by reason of the oil and gas rights and privileges not having been conveyed to W. E. Casto in said deed, his heirs and assigns and remote grantees received no interest in said oil and gas rights and privileges, and therefore the defendants are not now the owners thereof. The plaintiffs state that when the said Henry Fraley, deceased, made the conveyance above referred to, to the said W. E. Casto, the oil and gas rights and privileges did not pass to Casto under the Casto deed, but were reserved unto the said Henry Fraley, and, at the time of his death, descended to his children.

They

state that at the time Henry Fraley made the conveyance above referred to, to W. E. Casto, it was not intended by either Henry Fraley, grantor, or W. E. Casto, grantee, that the oil and gas rights and privileges should be conveyed. At that time it was not contemplated by either of the parties to said deed that oil and gas existed under said tract of land.

The only minerals which were in the minds of the grantor and grantee, and the only minerals which passed in the said Casto deed, were such precious minerals as gold and silver. At that time it was generally believed that Swift's silver mine was located on the Henry Fraley tract of land, and silver alone was intended to be conveyed to said Casto in said deed.”

To this petition the lower court sustained a general demurrer, and the plaintiffs have prosecuted this appeal.

It will be seen that the matter in controversy depends on the construction of the clause in the deed, conveying to Casto "all of the minerals (except stone coal), with necessary right of ways and privileges for prospecting, mining, and smelting on my tract of land lying on the waters of Hell creek," taken in connection with the averments of the petition, which on this appeal we must assume to be true, "that at the time Henry Fraley made the conveyance above referred to, to W. E. Casto, it was not intended by either Henry Fraley, grantor, or W. E. Casto, grantee, that the oil and gas rights and privileges should be conveyed. At that time it was not contemplated by either of the parties to said deed that oil and gas existed under said tract of land. The only minerals which were in the minds of the grantor and grantee, and the only minerals which passed in the said Casto deed, were such precious minerals as gold and silver. At that time it was generally believed that Swift's silver mine was located on the Henry Fraley tract of land, and silver alone was intended to be conveyed to said Casto in said deed."

On behalf of the plaintiffs, the argument is: First, that the language of this deed, and particularly the clause in controversy, shows on its face that the conveyance was limited to such materials, excepting stone coal, as might be mined and smelted, and hence did not grant or convey the oil or gas rights or privileges; and, second, that even if it

could not be held from an inspection of the deed itself that the grant excluded the oil and gas rights and privileges, the clause in controversy is at least so ambiguous as to make it competent for the plaintiffs to show, if they could, by evidence, the situation of the parties at the time the deed was made and the circumstances surrounding its execution, for the purpose of establishing that it was only intended by the parties that the deed should convey such minerals as might be mined and smelted, and not within their contemplation that the oil and gas rights or privileges should be granted.

On the other hand, it is insisted by counsel for defendant that there is no ambiguity in this clause, or reasonable room for difference of opinion as to its meaning, or the nature of the minerals it was intended to convey; that as the deed conveyed all the minerals, except stone coal, and the word "minerals" includes oil and gas, extrinsic evidence is not admissible for the purpose of showing what the parties intended should be granted in a controversy between strangers to the original transaction.

It is elementary law that the intention of the parties in the execution of deeds and other like instruments controls the construction, and that when the intion-intention- strument is fair on

Deed-construc

how ascertained. its face and free from ambiguity their intention must be gathered from an inspection of the instrument itself without the aid of extrinsic evidence, but if the instrument is so ambiguous as to leave the mind in doubt as to what the parties intended, extrinsic evidence may be resorted to as an aid in the construction of the instrument, although no effort is made to reform it on the ground of fraud or mistake.

As said in 8 R. C. L. p. 1041: "The tendency of modern decisions is to disregard technicalities and to treat all uncertainties in a conveyance as ambiguities, subject to be

cleared up by resort to the intention of the parties as gathered from the instrument itself, the circumstances attending and leading up to its execution, and the subject-matter and the situation of the parties as of that time."

To the same effect is 18 C. J. p. 279.

In Devlin on Deeds, vol. 2, § 840, the rule is stated thus: ""Again, every provision, clause, and word in the same instrument shall be taken into consideration in ascertaining the meaning of the parties, whether words of grant, of covenant, or description, or words of qualification, restraint, exception, or explanation. Again, every word shall be presumed to have been used for some purpose, and shall be deemed to have some force and effect, if it can have. And, further, although parol evidence is not admissible to prove that the parties intended something different from that which the written language expresses, or which may be the legal inference and conclusion to be drawn from it, yet it is always competent to give in evidence existing circumstances, such as the actual condition and situation of the land, buildings, passages, watercourses, and other local objects, in order to give a definite meaning to language used in the deed, and to show the sense in which particular words were probably used by the parties, especially in matters of description.' Where the meaning is doubtful, evidence as to the acts of the parties may be admitted to show the intent. But where the terms of the deed are plain and intelligible, and the instrument can operate, evidence as to the acts of the parties claiming under it is not admissible. The intent, when clearly expressed, cannot be altered by evidence of extraneous circumstances."

In Bain v. Tye, 160 Ky. 408, 169 S. W. 843, this court said: "It is an elementary rule in the interpretation of deeds that the intention of the parties should be effectuated, and in doing this a liberal construction is given to deeds inartificially