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N. S. 117, 101 L. T. N. S. 785, 74 Ann. Cas. 636, the question was
J. P. 57, 26 Times L. R. 190, 47 Scot. again under discussion by the court
L. R. 612.

of appeals of New York, and the .
The question has been discussed conclusion reached that limestone
by some of the American courts, was not included in the grant, for
and we believe there is a reasonable the reason that it could be deter-
degree of unanimity as to the mean mined from the language used that
ing of the term, although there are the parties only intended such min-
some apparent discrepancies in the erals as were secured by the ordi-
application of it to particular sub nary processes of mining.
stances. In the case of Hendler v. Numerous holdings in particular
Lehigh Valley R. Co. 209 Pa. 256, cases might be found to the effect
103 Am. St. Rep. 1005, 58 Atl. 486, that stone used for road making and
the Pennsylvania supreme court paving, limestone, flint stone, slate,
had under consideration the ques clay, and other like materials, are
tion of whether sand was a min minerals; but it will be apparent
eral and included within the terms from a reading of the cases that
of such a grant. The conclusion much stress is laid upon the lan-
reached by that court was that this guage used by the parties in the
term, in its commercial sense, may grant, not only that language which
be defined as any inorganic sub describes the substance of the grant,
stance found in nature having suffi but as well any other language
cient value, separate from its situs used which would throw light on
as part of the earth, to be mined, what the parties intended when
quarried, or dug for its own sake, or they used such a term as mineral or
its own specific use. The supreme mines. Frequently the character of
court of Tennessee, in the case of the mining rights granted has been
Murray v. Allred, 100 Tenn. 100, 39 held to determine the limit of the
L.R.A. 249, 66 Am. St. Rep. 740, 43 substance granted, as in the two
S. W. 355, 19 Mor. Min. Rep. 169, New York cases above cited. It
had under consideration the ques would seem that the terms "mine"
tion of whether or not petroleum and "mineral"

are not definite oil and gas were included within the terms. They are susceptible of limterm “mineral.” It was held that itation according to the intention these substances were minerals, and with which the parties use them, in the discussion the conclusion and in their construction regard reached by the Pennsylvania court must be had not only to the deed in above referred to was apparently which they occur, but also to the approved. So, in the case of Arm relative position of the parties instrong v. Lake Champlain Granite terested, and to the substance of Co. 147 N. Y. 495, 49 Am. St. Rep. the transaction or arrangement 683, 42 N. E. 186, 18 Mor. Min. Rep. which the grant embodies. Con279, the court of appeals of New sequently in themselves these terms York had under consideration the are incapable of a question of whether granite was in definition, which cluded within a grant of minerals, would be universaland after an elaborate review of the ly applicable.

ly applicable. Lindley, Mines & authorities comes to a similar con Min. $$ 87 et seq., where the quesclusion with that reached by the tion is elaborately discussed; 18 R. C. Pennsylvania court in the case L. p. 1093; Sult v. A. Hochstetter above referred to, when there is no Oil Co. 63 W. Va. 317-323, 61 S. E. aid in construing the term from 307. It would not do to say that the the circumstances surrounding the term includes only such substances parties at the time, or from the as are procured by tunneling and paper itself.

So, in the case of shafting, for it is well known that Brady v. Smith, 181 N. Y. 178, 106 much gold was procured by the procAm. St. Rep. 531, 73 N. E. 963, 2 ess of placer mining, and surely


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(83 W. Va. 20, 97 S. E. 684.) no one would contend that the term appeals of New York in the cases “mineral" did not include gold, above referred to, that the meaning whether found upon the surface, in of the words used in the grant, the bed of a stream, or as the result when construed in the light of this of shafting and tunneling for the language used in granting the ore. It is also well known that rich mining rights, is deposits of manganese and other limited

to such

Mines-grantlike ores are found upon the surface minerals as are seof the earth, and are sometimes se cured by the ordinary processes of cured without either quarrying or mining. The bill in this case avers mining, and it could not be con that this seam of clay is valuable tended that such ores when so found for manufacturing brick and for are not minerals, but when secured other manufacturing and mercanby the process of tunneling and tile purposes, and is separate from, shafting, or other similar mining and not a part of, the soil on said processes, are minerals.

tract used for agricultural purposes. In this case we have no evidence This language is not equivalent to as to the situation of the parties at saying that it is secured by the procthe time of the grant, or their con ess ordinarily termed that of mining. duct under it, which would aid us in It says that the clay is separate the interpretation of it. We have, from that part of the soil used for however, language used in the deed agricultural purposes, but it does conveying certain mining rights. not undertake to aver, nor is it anyThe grant of these rights is to mine, where shown in the case, that this excavate, and remove all the coal, mineral is produced by tunneling make and maintain all necessary

therefor, or by shafting therefor, railroads, excavations, ways, shafts, or just in what manner it is prodrain ways, and openings necessary

duced. We cannot see from the and convenient for the mining and pleadings in this case, and the pleadremoval of said coal and other min ings are all we have, that the plainerals. Substantial aid is afforded by tiff has made a case which brings this language in determining what this seam of clay within the terms the parties meant by the term "oth of its grant. er minerals" in the grant. The Such being the case, we are of rights granted for the removal of opinion to affirm the decree comthese minerals are such rights as plained of. are incident to the production of

Petition for rehearing denied Janminerals by means of mines; that is, by shafting or tunneling. It would

uary 8, 1919. seem quite clear that it was within the contemplation of the parties

NOTE. that the minerals granted were such as it was necessary to mine for; that is, either to tunnel for or pro

The question as to what are "minerduce by sinking shafts and tunnels als” within deed, lease, or license is therefrom. These rights granted the subject of the annotation followwould not be incident to their pro- ing HUDSON V. MCGUIRE, post, 156; duction in other ways; and so we specifically as to clay, see subd. II. a, think, as was held by the court of of that annotation.

FRANK HUDSON et al., Doing Business as Hudson & Collins, Appts.,


Kentucky Court of Appeals - June 1, 1920.

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(188 Ky. 712, 223 S. W. 1101.) Deed - grant of minerals

oil and gas. 1. A grant, without qualifying or limiting words, of the minerals underlying certain real estate, will include oil and gas.

[See note on this question beginning on page 156.]

construction intention how minerals, "with necessary rights of ascertained.

way for prospecting, mining, and 2. The intention of the parties smelting," is sufficiently ambiguous which controls the construction of a with respect to the question whether deed must, when the instrument is oil and gas rights are included, to adfair on its face and free from ambi mit extrinsic evidence as to intenguity, be gathered from an inspection tion. of the instrument itself, but, if it is Deed inquiry into intention as so ambiguous as to leave the mind in

against remote grantee. doubt as to what the parties intended, 4. A grant of minerals, with right extrinsic evidence may be resorted to

of way for prospecting, mining, and as an aid in the construction of the

smelting, is sufficiently ambiguous as instrument.

to intention to include oil and gas [See 8 R. C. L. 1039, 1041.]

rights, to charge a purchaser with noEvidence - intention — admissibility

admissibility tice and permit inquiry into the intenambiguous deed.

tion of the parties to the instru3. As between the parties, a deed of ment.

(Sampson, J., dissents.)

APPEAL by plaintiffs from a judgment of the Circuit Court for Lee County sustaining a demurrer to a petition filed to have their alleged title to certain oil and gas rights quieted. Reversed.

The facts are stated in the opinion of the court.

Messrs. W. H. Flanory and Davis M. Carroll, Ch. J., delivered the opinHowerton, for appellants:

ion of the court: The deed contains language show In April, 1891, Henry Fraley exing that the grant limited the miner

ecuted and delivered to W. E. Casto als conveyed to those which could be prospected for, mined, and smelted.

the following deed: "This deed beMcKinney v. Central Kentucky Nat

tween Henry Fraley, of Lee county, ural Gas Co. 134 Ky. 239, 120 S. W.

state of Kentucky, of the first part, 314, 20 Ann. Cas. 934; Kentucky Dia.

and W. E. Casto, of Lee county, Kenmond Min. & Developing Co. v. Ken- tucky, of the second part, witnestucky Transvaal Diamond Co. 141 Ky. seth, that the said party of the first 97, 132 S. W. 397, Ann. Cas. 1912C, part in consideration of $75, the re417; Scott v. Laws, 185 Ky. 440, 13 ceipt of which is hereby acknowlA.L.R. 369, 215 S. W. 81.

edged, do hereby sell, grant, and Messrs. E. F. Trabue, H. S. McGuire, and J. T. Metcalf, for appellee: part, his heirs, and assigns, the fol

convey, to the party of the second A mineral not in the minds of the grantor and grantee was not intended lowing described property, viz.: to pass, and such intention controls.

All of the minerals (except stone Lovelace v. Southwe ern Petroleum coal), with necessary right of ways Co. — C. C. A. – 267 Fed. 513, af and privileges for prospecting, minfirming 267 Fed. 504.

ing, and smelting on my tract of

(188 Ky. 712, 223 S. W. 1101.) land lying on the waters of Hell The only minerals which were in the creek, a tributary of the Kentucky minds of the grantor and grantee, river, in Lee county, state of Ken- and the only minerals which passed tucky. (Following this is a descrip- in the said Casto deed, were such tion of the land.) To have and to precious minerals as gold and silver. hold the same, with all the appur At that time it was generally betenances thereon, to the second par lieved that Swift's silver mine was ty, his heirs, and assigns forever, located on the Henry Fraley tract of with covenant of general warran land, and silver alone was intended ty.”

to be conveyed to said Casto in said Fraley and Casto are dead, and deed." this controversy involves the single To this petition the lower court question whether the deed passed sustained a general demurrer, and the oil and gas rights and privileges the plaintiffs have prosecuted this to Casto.

appeal. Hudson and Collins, who have a It will be seen that the matter in regular title from the heirs of Fra controversy depends on the conley, assert that the oil and gas rights struction of the clause in the deed, and privileges were not conveyed by conveying to Casto "all of the minhim to Casto, and brought this suit erals (except stone coal), with necagainst McGuire, a remote vendee essary right of ways and privileges of Casto, who claims that the oil and for prospecting, mining, and smeltgas privileges did pass under the ing on my tract of land lying on the deed, to have their alleged title to waters of Hell creek," taken in conthe oil and gas rights quieted. In nection with the averments of the their petition they averred: “That petition, which on this appeal we the oil and gas privileges and rights must assume to be true, “that at the were not conveyed by Henry Fraley, time Henry Fraley made the conveydeceased, to W. E. Casto under and ance above referred to, to W. E. by virtue of the Casto deed, and that Casto, it was not intended by either by reason of the oil and gas rights Henry Fraley, grantor, or w. E. and privileges not having been con Casto, grantee, that the oil and gas veyed to W.E. Casto in said deed, rights and privileges should be conhis heirs and assigns and remote veyed. At that time it was not congrantees received no interest in said templated by either of the parties oil and gas rights and privileges, to said deed that oil and gas existed and therefore the defendants are under said tract of land. The only not now the owners thereof. The minerals which were in the minds plaintiffs state that when the said of the grantor and grantee, and the Henry Fraley, deceased, made the only minerals which passed in the conveyance above referred to, to the said Casto deed, were such precious said W. E. Casto, the oil and gas minerals as gold and silver. At rights and privileges did not pass to that time it was generally believed Casto under the Casto deed, but that Swift's silver mine was located were reserved unto the said Henry on the Henry Fraley tract of land, Fraley, and, at the time of his death, and silver alone was intended to be descended to his children. They conveyed to said Casto in said deed.” state that at the time Henry Fraley On behalf of the plaintiffs, the made the conveyance above referred argument is:

argument is: First, that the lanto, to W. E. Casto, it was not intend guage of this deed, and particularly ed by either Henry Fraley, grantor, the clause in controversy, shows on or W. E. Casto, grantee, that the oil its face that the conveyance was and gas rights and privileges should limited to such materials, excepting be conveyed. At that time it was stone coal, as might be mined and not contemplated by either of the smelted, and hence did not grant or parties to said deed that oil and gas convey the oil or gas rights or privexisted under said tract of land. ileges; and, second, that even if it

could not be held from an inspection cleared up by resort to the intention of the deed itself that the grant ex of the parties as gathered from the cluded the oil and gas rights and instrument itself, the circumstances privileges, the clause in controversy attending and leading up to its exeis at least so ambiguous as to make cution, and the subject-matter and it competent for the plaintiffs to the situation of the parties as of show, if they could, by evidence, the that time." situation of the parties at the time To the same effect is 18 C. J. p. the deed was made and the circum- 279. stances surrounding its execution, In Devlin on Deeds, vol. 2, § 840, for the purpose of establishing that the rule is stated thus:

“Again, it was only intended by the parties every provision, clause, and word in that the deed should convey such the same instrument shall be taken minerals as might be mined and into consideration in ascertaining smelted, and not within their con the meaning of the parties, whether templation that the oil and gas words of grant, of covenant, or derights or privileges should be grant- scription, or words of qualification, ed.

restraint, exception, or explanation. On the other hand, it is insisted by Again, every word shall be precounsel for defendant that there is sumed to have been used for some no ambiguity in this clause, or rea purpose, and shall be deemed to sonable room for difference of opin- have some force and effect, if it can ion as to its meaning, or the nature have. And, further, although parol of the minerals it was intended to evidence is not admissible to prove convey; that as the deed conveyed that the parties intended something all the minerals, except stone coal, different from that which the writand the word "minerals" includes ten language expresses, or which oil and gas, extrinsic evidence is not may be the legal inference and conadmissible for the purpose of show- clusion to be drawn from it, yet it is ing what the parties intended should always competent to give in evibe granted in a controversy between dence existing circumstances, such strangers to the original transac as the actual condition and situation tion.

of the land, buildings, passages, waIt is elementary law that the in tercourses, and other local objects, tention of the parties in the execu in order to give a definite meaning tion of deeds and other like instru- to language used in the deed, and to ments controls the construction, and show the sense in which particular

that when the in words were probably used by the Deed-construction-intention- strument is fair on parties, especially in matters of dehow ascertained.

its face and free scription. Where the meaning is from ambiguity their intention must doubtful, evidence as to the acts of be gathered from an inspection of the parties may be admitted to show the instrument itself without the aid the intent. But where the terms of of extrinsic evidence, but if the in the deed are plain and intelligible, strument is so ambiguous as to leave and the instrument can operate, evithe mind in doubt as to what the dence as to the acts of the parties parties intended, extrinsic evidence claiming under it is not admissible. may be resorted to as an aid in the The intent, when clearly expressed, construction of the instrument, al cannot be altered by evidence of exthough no effort is made to reform traneous circumstances." it on the ground of fraud or mis In Bain v. Tye, 160 Ky. 408, 169 take.

S. W. 843, this court said: “It is an As said in 8 R. C. L. p. 1041 : elementary rule in the interpreta“The tendency of modern decisions tion of deeds that the intention of is to disregard technicalities and to the parties should be effectuated, treat all uncertainties in a convey and in doing this a liberal construcance as ambiguities, subject to be tion is given to deeds inartificially

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