SMITH
J.
On the
30th day of November, 1909, the parties hereto entered into a
written contract, wherein the plaintiffs leased to the
defendant a tract of land in Missoula county for a term of 99
years, at an annual rental of $300. It appears from the lease
that the lands so let are part of a larger tract owned by the
plaintiffs. We quote certain portions of the agreement
"The lessors agree that the lessee may take within the
boundaries of the land described all such clay, earth, and
other material as it shall desire for the purpose of using
the same in, about, or in connection with its business in
manufacturing brick, tile, etc., and such other purposes as
to it shall seem proper. *** If the said lessee shall damage
any of the trees in the orchard of the lessors, or other
fruit or berry-bearing trees or shrubbery or shade trees, a
reasonable compensation is to be made therefor. *** The
lessee may build *** tracks and wagon road any place on the
premises hereby leased *** for the purpose of moving clay
fuel
or other material. *** The lessee covenants that it will so
far as the operations of the lessee are concerned protect all
irrigating ditches of the lessors and maintain the same in
condition necessary to enable the same to carry water in the
usual quantities. *** The lessee may construct buildings
brick kilns, and any and all other structures and apparatus
that it may deem necessary for its use in connection with its
businesss of manufacturing brick, tile, etc., upon the said
premises. *** Until such time as the lessee shall require for
its use the lands and premises hereby leased and let, the
lessors shall have the privilege to occupy and use the same
or any portion thereof as they have heretofore done. *** It
is further agreed that the lessee will not excavate upon or
in any manner disturb the surface conditions of that portion
of the land covered by this lease which is meadow and grazing
land until such time as the doing so may become actually
necessary in the successful and proper operation and conduct
of the business by said lessee contemplated, and until the
same shall become necessary the lessors are to have the right
to use the said meadow and grazing land and to cut, take, and
use the crops of hay grown thereon the same as if this lease
had not been given. *** The lessee is to provide *** a
practicable way for (lessors') stock to go to and from
the barnyard and corral to the grazing lands." This
action was brought to annul the lease, plaintiffs alleging in
their complaint that "the land covered by said lease is
agricultural land, and the lease is therefore invalid under
the provisions of section 4465, Revised Codes, as an attempt
to lease agricultural lands for a longer period than ten
years." A copy of the lease was attached to the
complaint. The district court of Missoula county sustained a
general demurrer to the complaint, and, plaintiffs declining
to amend, judgment was entered for the defendant. From the
judgment an appeal has been taken.
Section
4465, Revised Codes, reads as follows: "No lease or
grant of agricultural land for a longer period than ten
years, in which shall be reserved any rent or service of any
kind, shall be valid."
We
encounter no difficulty in adopting all of the rules of
statutory construction contended for by counsel for the
appellants. In the construction of a statute the intention of
the Legislature is to be pursued, if possible. Rev. Codes, §
7876; 36 Cyc. 1102. "Courts may with propriety, in
construing a statute, recur to the history of the time when
it was passed, and this is frequently necessary in order to
ascertain the reason as well as the meaning of particular
provisions in it." United States v. Union P. R. R.
Co., 91 U.S. 72, 23 L.Ed. 224. The New York Court of
Appeals in Tonnele v. Hall, 4 N. Y. 140, said:
"It is a sound principle that such a construction ought
to be put upon a statute as may best answer the intention
which the makers had in view, and that is sometimes to be
collected from the cause or necessity of making it, at other
times from other circumstances. Whenever the intention can be
discovered, it ought to be followed with reason and
discretion in its construction, although such construction
may seem contrary to its letter." See, also, City of
Evansville v. Summers, 108 Ind. 189, 9 N.E. 81;
Commercial Bank v. Foster, 5 La. Ann. 516; State
ex rel. Meinzer v. Diveling, 66 Mo. 375; Keith v.
Quinney, 1 Or. 364. With this end in view, we may
inquire the reason why this particular statute was enacted.
New York appears to have been its parent state.
As we
find substantially the same statute there, prior to its
adoption here, it may be presumed that we adopted it, perhaps
indirectly via California, from that state, together with the
construction placed upon if there by the courts. In re
Wisner, 36 Mont. 298, 92 P. 958. The statute has been
construed several times in New York. In Stephens v.
Reynolds, 6 N. Y. 454, Mr. Justice Gridley, speaking for
the court, said: "A large part of the manorial lands in
this state were originally settled under leases in fee,
leases for lives, or a long term of years. In other words,
the proprietors, instead of selling their lands out and out
to purchasers, demised them to tenants, for long periods of
time, reserving an annual rent, in money, produce, or
services. Experience proved that this mode of settling the
country was prejudicial to the prosperity and interests of
the state as a question of political economy. The proprietors
owning the lands, and the tenants having only the
usufructuary interest, subject to be lost by forfeiture, by a
nonperformance of any of the conditions of the lease, the
latter felt none of the pride of independent ownership, and
no desire to improve, by the best mode of cultivation, an
inheritance which was liable to pass from them, or their
descendants without a compensation. Impressed with the
conviction of this truth, the framers of the Constitution of
1846, by a provision in the fundamental law, abrogated these
tenures, and provided that no lease or grant of agricultural
land for a longer period than 12 years thereafter made in
which should be reserved any rent or service of any kind
should be valid."
In
Parsell v. Stryker, 41 N.Y. 480, Mr. Justice James said
for the court: "That clause of the Constitution, as all
know, was *** aimed *** against manorial leases." In
Odell v. Durant, 62 N.Y. 524, the court said:
"The character of the land is made by the Constitution
the test of the validity of the lease, not the purpose for
which the lease was made. There was nothing in this lease
which precluded the lessee from using the land *** for
agricultural purposes if he saw fit. The plaintiff admits...
