Shreve v. Copper Bell Mining Co.

Blake, C.J.

It appears from the findings of facts, whicJb. are admitted by the parties, that the Edna Lode Mining Claim was discovered June 4, 1887, and that the boundaries were marked by posts at each corner and the center of each end line. The notice of location was filed June 15, 1887, in the office of the recorder of Jefferson County. The owners of the Edna Lode Mining Claim, including Frank Nelson and Charles Koegel, two of the appellants herein, moved, May 13, 1889, M the two stakes at the west end between five and six hundred *322 feet further south, but did not change the stakes at the east end; and that the old original west end stakes were not removed, but were left standing as they were prior to the said swinging around of the boundaries.” Said Nelson “actually assisted in moving said corners.” Koegel, by his deed, which was executed August 17,1889, conveyed to the grantors of the respondent all his right, title, and interest in and to the Edna Lode Mining Claim. The description of the premises is as follows : “An undivided one-fourth (j-) interest in and to that certain piece or parcel of land known as the ‘ Edna Quartz Lode Mining Claim,’ situate in Cataract (unorganized) mining district, Jefferson County, Montana Territory. Said Edna Lode is fully described in the notice of location thereof, which is recorded in the office of the county clerk and recorder of Jefferson County, Montana. Also an undivided one-fourth interest in all tools, mining improvements, and buildings, together with all the dips, spurs, and angles, and also all the metals, ores, gold and silver bearing quartz, rock, and earth therein; and all the rights, privileges, and franchises thereto incident, appendant, and appurtenant, or therewith usually had and enjoyed; and also all and singular the tenements, hereditaments, and appurtenances thereto belonging or in any wise appertaining, and the rents, issues, and profits thereof; and also all the estate, right, title, interest, property, possession, claim, and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in, or to said premises, and every part and parcel thereof, with the appurtenances. To have and to hold, all and singular, the said premises, together with the appurtenances and privileges thereto incident, unto the said parties of the second part, their heirs and assigns, forever. It is expressly covenanted that it is intended hereby to convey any and all right, title, interest, and estate which may hereafter be acquired to said premises, or any part thereof, by virtue of any patent, which may hereafter be issued by the United States government therefor, under proceedings heretofore instituted in that behalf.”

Nelson, by his deed, which was executed August 21, 1889, also conveyed all his right, title, and interest in the Edna Lode Mining Claim to the grantors of the respondent. The same *323 language is used in describing tlie premises which were conveyed by Koegel, with this exception, that the following recitals appear: “Said claim is recorded on page 488 of Book P of Lode Locations of Jefferson County;” and “Said mill-site is recorded on page 85 of Book H of the Becords of Jefferson County.”

What was the intention of said Nelson and Koegel in the execution of these instruments ? What right, title, or interest in the Edna Lode Mining Claim was embraced in the foregoing deeds? The Code of Civil Procedure has prescribed the rule for their interpretation: “ For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret.” (§ 632.) “ The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is, nevertheless, admissible that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.” (§ 633.) The statute is a codification of the decisions of the courts upon this subject. The property in controversy is of a peculiar and exceptional character. Parties who comply with the laws of the United States and this State, and the local customs and regulations of a mining district, acquire the right to occupy, possess, and explore a lode mining claim. The discoverers do not usually make an accurate survey of the premises; and the notices of location contain a description in general terms, and by name. When the true course of the vein has been ascertained by development, the boundaries are usually changed to protect the interest of the claimants. The owners of the Edna Lode Mining Claim availed themselves of this privilege, which is valid under certain conditions, and about three months after these boundaries had been changed and restaked, the deeds were executed by Nelson and Koegel.

In Phillpotts v. Blasdel, 8 Nev. 70, the court quotes with approval the following extract from the opinion of the district judge, the Hon. W. H. Beatty, who, since that time, has been an honorable member of the Supreme Courts of the States of *324 California and Nevada, viz.: “I agree with the plaintiff that when a man conveys a lode, we have only to ascertain, by the best means in our power, what lode of ore he meant; and, if we can do so, it makes no difference that he has called it by a name illegitimately acquired — a name only applied to it by reason of his ignorance of the truth. Effect must be given to his real intention, and the lode intended must be held to have been conveyed.” The court in Truett v. Adams, 66 Cal. 221, says: “In trying to ascertain that intention, it is the duty of a court to assume, as nearly as possible, the position of the contracting parties, and to question the circumstances of the transaction between them, and then to read and interpret the words which they used in the light of those circumstances.” Chief Justice Wade, in Taylor v. Holter, 1 Mont. 695, recognized this rule for the interpretation of a deed, and said: “ The intent of the parties must be gathered from what is written, rather than from parol evidence; but the language of the instrument may be construed by the light of surrounding circumstances, and, so far as possible, the court may put itself in the place of the parties, and may interpret the language from this stand-point, but nothing can be added to or taken from the written words.” (See, also, Donnell v. Humphreys, 1 Mont. 518, and United States v. Power, 6 Mont. 271.)

Let us apply to the instrument before us the principle which . has been established by the authorities and the Code of Civil Procedure. The intention of Nelson and Koegel is clearly expressed in their respective deeds, and they thereby parted with their right, title, and interest in the Edna Lode Mining Claim, as this property was known to them in August, 1889, and for which a patent might be issued by the government of the United States. It is contrary to the words and acts of Nelson and Koegel to say that they intended to sell, and their grantees wished to buy, the Edna Lode Mining Claim, as originally located, when they had abandoned a portion thereof to the public, and were not seeking any patent thereto. In order to obtain this patent, it is essential that a number of acts should be done by the applicants, and the Edna Lode Mining Claim was surveyed according to the boundaries which had been fixed by the change of the lines by Nelson and Koegel and the owners in *325 the month of May, 1889. When the application for patent was made in the United States land office by the respondent, which was then the owner thereof, the appellants filed a protest, for the reason that the parcel in controversy was a part of the Lightning Lode Mining Claim. The following findings of facts by the court should be considered upon this branch of the case:—

“ 11. That on October 30,1889, plaintiffs, Nelson and Koegel, bought out all the interest which Watson and Donnelly had in the Lightning Claim.

“12. That the plaintiff Shreve derived his title or interest in the Lightning Claim by purchase from Nelson and Koegel.”

The court below held that Nelson and Koegel were estopped by their deeds, and prevented from asserting any claim to the area in conflict. The question of ownership of the Lightning Lode Mining Claim, or the validity of its location, is not involved in this inquiry. If the appellants succeed in this litigation, they prevent the respondent from securing the Edna Lode Mining Claim, which they “expressly covenanted ” that its grantors, and “their heirs and assigns forever,” should have and hold.

In Van Rensselaer v. Kearney, 11 How. 297, the court, through Mr. Justice Nelson, said: “And therefore, if the deed bears on its face evidence that the grantors intended to convey, and the grantee expected to become invested with, an estate of a particular description or quality, and that the bargain had proceeded upon that footing between the parties, then, although it may not contain any covenants of title in the technical sense of the term, still the legal operation and effect of the instrument will be as binding upon the grantor, and those claiming under him in respect to the estate thus described, as if a formal covenant to that effect had been inserted; at least, so far as to stop them from ever afterwards denying that he was seised of the particular estate at the time of the conveyance.....The principle deducible from these authorities seems to be that, whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seised or possessed of a particular estate in the premises, and which estate *326 the deed purports to convey; or, what is the same thing, if the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor, and all persons in privity with him, shall be estooped from ever afterwards denying that he was so seised and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after-acquired title as between parties and privies. The reason is that the estate thus affirmed to be in the party at the time of the conveyance must necessarily have influenced the grantee in making the purchase, and hence the grantor, and those in privity with him, in good faith and fair dealing, should be forever thereafter precluded from gainsaying it. The doctrine is founded, when properly applied, upon the highest principles of morality, and recommends itself to the common sense and justice of every one. And although it debars the truth in the particular case, and therefore is not unfreqtiently characterized as odious, and not to-be favored, still it should be remembered that it debars it only in the case where its utterance would convict the party of a previous falsehood —would be the denial of a previous affirmation upon the faith of which persons had dealt, and pledged their credit or expended their money. It is a doctrine, therefore, when properly understood and applied, that concludes the truth in order to prevent fraud and falsehood, and imposes silence on a party only when in conscience and honesty he should not be allowed to speak.”

In Smith v. Williams, 44 Mich. 242, Mr. Justice Cooley for the court said: “Where one assumes by his deed to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire or assert a title, and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress is to deny him the liberty of setting up his after-acquired title as against his previous conveyance. This is merely refusing him the countenance and assistance of the courts in breaking the assurance which his covenants have given.” (Long Island R. R. Co. v. Conklin, 29 N. Y. 572; Doe v. Dowdall, 3 Houst. 369.)

*327 In Kelly v. Taylor, 23 Cal. 11, the court below instructed the jury “that in the matter of estoppel a different rule applies to mining claims from that applicable to other species of real estate.” But Mr. Justice Crocker in the opinion said: “The first branch of this instruction is erroneous. The rules of law relating to estoppel in pais apply to mining ground, the same as any other real estate claimed under a similar kind of title.” (See, also, Clark v. Baker, 14 Cal. 612; 76 Am. Dec. 449; Fields v. Squires, Deady, 366; Yunker v. Nichols, 1 Colo. 563; Smith v. Moodus W. P. Co. 35 Conn. 400; Karnes v. Wingate, 94 Ind. 594; Dobbins v. Cruger, 108 Ill. 188; Irvine v. Irvine, 9 Wall. 617; Moore v. Crawford, 130 U. S. 122; Ryan v. United States, 136 U. S. 68.)

The Code of Civil Procedure provides as follows: “ When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it; and when different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made.” (§ 636.) The language seems to be decisive in its application to the deeds of the appellants.

The authorities seem to be in harmony upon this question, and we are of the opinion that the court below construed correctly the deeds of Nelson and Koegel, and held that these parties were thereby estopped from maintaining this action. The appellant Shreve obtained his title and interest to the Lightning Lode Mining Claim from Nelson and Koegel, and being in privity with them, is also in like manner estopped.

We concur in the views of Mr. Justice De Witt regarding the construction of the law applicable to the discovery and location of the Lightning Lode Mining Claim.

It is ordered and adjudged that the judgment be affirmed.

Affirmed.

Harwood, J., concurs.