Harlow v. Lake Superior Iron Co.

• Decision Date: 04 April 1877
• Citation: 36 Mich. 105
• Court: Michigan Supreme Court
• Parties: Amos R. Harlow v. The Lake Superior Iron Company

36 Mich. 105

Amos R. Harlow v. The Lake Superior Iron Company

Supreme Court of Michigan

April 4, 1877

Heard January 18, 1877 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Marquette Circuit.

Judgment affirmed, with costs, and the record remanded.

F. O. Clark, Ball & Owen, Daniel Goodwin and John Van Arman, for plaintiff in error.

The lease, although containing several provisions of a very unusual character, was intended to and does convey the undivided one-half of the land itself, and not a mere mining right.

The demise is of the undivided half of a quarter section of land, and the language in which it is expressed is entirely unequivocal, and the subsequent provision, by which the lessor binds himself not to sell or encumber the interest thereby leased until the lessee had first been allowed the privilege of purchasing "said undivided one-half," and granting the lessee the right at any time during the lease to have said land divided, or purchase the same undivided, and also providing that in case the parties, lessor and lessee, should be unable to agree upon the manner of such division of said land, or the terms of such purchase, that appraisers should be mutually chosen to decide in relation to such division or purchase, or both, are conclusive evidence of the intention and understanding of the parties. As between the lessor and lessee of the undivided one-half of the land, these provisions are reasonable and practicable, but not one of them, except possibly that whereby the lessor binds himself not to sell or encumber the interest leased unless the lessee is first allowed the privilege of purchasing said undivided one-half, is either sensible or even practicable when applied to the lease of a mere mining right. And even this provision, giving the lessee the pre-emption or first right to purchase the undivided one-half of the land, although not necessarily inconsistent with the demise of the mere mining right, is expressed in language which strongly indicates the understanding and intention of the lessor to convey the undivided one-half of the land by this lease.

The lease not only contains the usual language employed in a lease of the land, but also a provision, expressed in clear and unequivocal language, giving to the lessee the right at any time during the term of the lease to have a division of the quarter-section of the land itself between the lessor and lessee; and to render the right thus conferred on the lessee available without expense or delay, a mode of making such partition without resort to legal proceedings is carefully provided. Now as between a lessor and lessee of the undivided one-half the land, such a provision is practicable; but as between two persons, one of whom is the owner of the land, and the other of whom has no estate or interest therein, this provision is utterly impracticable; for in such case there could be no division consistent with or corresponding to the rights of the parties. Even if one of the parties were possessed of a mining right, such as that conveyed by this lease, but no interest in or share of the land, no such partition as is here provided for would be practicable consistently with the respective rights of the parties; for it is a partition of the land (said quarter-section) which is expressly provided for, and therefore, even if the mining right described in the lease were capable of division, no such division is authorized or referred to in the lease.

It is impossible to construe this lease as the lease of an easement only, and not a demise of the land. From a careful examination of its different provisions, it is the manifest intention of the parties to create a tenancy in common between the lessor and lessee in the land, and then regulate the rights of each of said tenants in relation to the use which each shall enjoy thereof during such tenancy in common. And the provisions of the lease in relation to the separate use of the land, are not inconsistent with the joint ownership or tenancy in common.

The statement of the purpose of the lease does not prevent the land from passing thereby.--2 Washb. on R. P. (4th ed.), 300; Chatham v. Brainard, 11 Conn. 90; Coburn v. Coxeter, 51 N. H., 166; Scallin v. Brown, 4 B. & C., 485; Coke Litt., 4 b.; Stuyvesant v. Mayor, etc., 11 Paige 414; Casselton v. Langdon, 11 Vt. 217; DeForest v. Brown, 1 Hilton 43.

In construing a contract it is proper and often necessary, not only to consider the various provisions and stipulations of the contract itself, but also the situation of the subject matter of the contract and the interest of the parties therein.--Wilson v. Troup, 2 Cow. 195; Sumner v. Wilson, 8 Mass. 214; Fowler v. Bigelow, 10 Mass. 379; Hopkins v. Young, 11 Mass. 302; Howland v. Leach, 11 Pick. 134; Hollingsworth v. Fry, 4 Dall. 345; Shultz v. Johnson, 5 B. Mon., 497.

The main and controlling principle adopted by courts in the construction of written contracts, whether under seal or resting in parol, is to so read and construe them as to carry into effect the actual purpose and intention of the parties; indeed, the intention of the parties, as indicated by the terms and provisions of the contract, and as derived from a careful consideration of all parts thereof, in contemplation of law constitutes the contract.--Knowles v. Emerson, 9 Pick. 422; Wheelock v. Turner, 19 Pick. 167; Heywood v. Perrin, 10 Pick. 230. The first and paramount rule of construction of contracts is to make them speak the intention of the parties as gathered from the contract and the entire transaction. Other rules are subservient to this, and whenever they contravene it, are to be disregarded.--Gray v. Clark, 11 Vt. 583; Kelley v. Mills, 8 Ham. 325; Patrick v. Grant, 2 Shep. 233.

The reservation in said lease for agricultural purposes is a reservation in the proper and technical sense, and therefore remains inoperative until possession taken by the lessor under it or if considered as an exception from the thing demised, it is void for uncertainty.--Shep. Touchstone, 78; Doe v. Lock, 4 N. & M., 807; 4 Kent Com. (10th ed.), 568, (12th ed.), 468.

For the distinction between exception and reservation, see Thompson v. Gregory, 4 Johns. 81; Provost v. Calders, 2 Wend. 517; Dygert v. Mathews, 11 Wend. 35; Stoll v. Wilson, 42 Me. 21; Coke Litt., 47a; Craig v. Wells, 11 N. Y., 321; Ives v. VanAuken, 34 Barb. 566.

W. P. Healey, G. V. N. Lothrop, C. I. Walker, and J. J. Storrow, for defendant in error.

These things are, we believe, perfectly distinguished in law: (1) Ownership of, and full dominion over the land, ab inferis, usque ad coelum, either in fee or for years.--2 Black, Com., 18; (2) Ownership of the stratum of minerals below the surface of the land, as distinguished from the ownership of the whole land.--Bainbridge, 4, 5, 33, 36; Wilkinson v. Proud, 11 M. & W., 39; Caldwell v. Fulton, 31 Penn. St., 475; (3) Ownership of a mine already opened and existing in the land of another.--Bainbridge, 33, 130, 497-8-9; (4) A mere right to enter, search for, dig and raise minerals, and thus acquire the ownership of the minerals so dug and raised.--Bainbridge, 117, 261, and cases hereinafter cited.

The first imports exclusive possession and enjoyment of the whole; the second imports like possession and enjoyment of a defined stratum of the whole, beneath the surface; the third imports like possession and enjoyment of that portion of surface and substratum actually included within the mine and its works. All these are rights in land, which can be properly described, both in extent and estate, and will sustain ejectment; each implies present ownership and possession of a physical thing, which one may hold alone, in common, in fee, or for years. But the fourth is a mere right. The grant of it does not describe any thing in or on the land which a surveyor or sheriff can find, or take, or give possession of. In the grant the right is floating. But when the grantee, in the exercise of his right, finds, digs and raises minerals, they thereby become appropriated in ownership. They become his own chattels. In law his right by the grant is an incorporeal hereditament. By the exercise of it he severs minerals from the land and makes them his own. But the mere right is one for which ejectment does not lie.--Tyler, 37, 41; Rowan v. Kelsey, 18 Barb. 484; Child v. Chapel, 9 N. Y., 246.

But the grantee in the exercise of this right may, and usually must, establish and open a mine. This fixes an absolute possession, the enjoyment of which is necessarily exclusive. When possession is thus annexed to his right, he has an interest which may be vindicated by ejectment, until he abandons such possession. His occupation, united with his right, defines and bounds an interest in land which the sheriff can take and give possession of.

This right, with respect to a particular tract of land, may be granted and enjoyed (besides those divisions which depend on length of time) in two ways: (1) It may be held by two as tenants in common; in which case each is entitled to an equal and common enjoyment of the mine and its works, and of the minerals raised; and each is liable to account to the other for the profits of the mine; (2) Or the grant may be to A, not exclusive, and of a similar right to B; in which case each, at his own costs and risk, and in his own way, may open and work a mine, having exclusive possession and owning exclusively what he raises; or the grantor may grant a right to A, not exclusive, retaining a similar right to himself.

In the first case, that of a grant to two in common, their rights inter sese, are determined by the principles which govern the relations of tenants in...