Vermont Kaolin Corporation v. Florence E. Lyons

• Decision Date: 15 November 1928
• Citation: 143 A. 639,101 Vt. 367
• Parties: VERMONT KAOLIN CORPORATION v. FLORENCE E. LYONS
• Court: Vermont Supreme Court

143 A. 639

101 Vt. 367

VERMONT KAOLIN CORPORATION v. FLORENCE E. LYONS

Supreme Court of Vermont

November 15, 1928

October Term, 1928.

Deeds---Construction of Contracts---"Profit … Prendre"---Mines and Minerals---Contract Construed To Grant Right To Prospect on Land and Option To Purchase---Construction Placed on Instrument by Parties---Intention of Parties---Abandonment or Revocation of Right To Prospect for Minerals---Parol Evidence To Show Abandonment or Revocation---Time within Which Option To Purchase Must Be Exercised Where Contract Silent as To Time---Specific Performance of Contract after Expiration of Reasonable Time within Which To Exercise Option.

1. In construction of deeds, master rule is that intention of parties, when ascertainable from entire instrument, prevails over technical terms or their formal arrangement.

2. While language of a written instrument governs in determining its effect and operation, in construing such language situation of parties, subject-matter, and object and purposes sought to be accomplished may be considered.

3. A profit … prendre is the right to take soil, gravel, minerals and the like from the land of another, or to hunt, trap fish, etc., on land of another.

4. Contract granting party right to prospect for minerals on land of another, and granting option to purchase such portion of land as he might require for mining operations, held not to create a profit … prendre, since right to take away minerals, etc., from land was wholly lacking.

5. Under such contract, if right to prospect for minerals also implied right to carry away soil or minerals for purpose of testing, latter right was a mere incident to prospecting, and insufficient to create a profit … prendre.

6. Language of instrument, considered in connection with situation of parties, subject-matter, and object and purpose sought to be accomplished, held to indicate intention merely to grant right to examine land to determine whether party desired to purchase land, and option to purchase it, if desired.

7. Construction which parties placed upon instrument, as evidenced by their conduct extending over a period of more than seven years, may be considered, if necessary, in determining what was thereby intended.

8. Under contract granting party right to prospect for minerals on land of another, and granting option to purchase such portion of land as he might require for mining operations words of inheritance and assignability appearing in that part of instrument which provides for right of examination cannot be permitted to override plain intent of parties, or create an interest in real estate out of an agreement obviously not intended to have that effect.

9. Right to prospect for minerals on land of another not being required to be in writing, abandonment, surrender, or revocation of such right could be established in same manner as if it rested in parol.

10. Where agreement, granting party right to prospect for minerals on land of another, with option to purchase such portion of land as he might require for mining operations fixed no time within which prospecting was to be done, or option exercised, law presumes that a reasonable time was intended for each.

11. Under such agreement, where grantees of rights commenced prospecting property soon after execution of agreement, and continued such prospecting nearly a year and subsequently notified owner of land that the result of their examination was such that they were "not interested" in property, assignee, acquiring grantees' "rights" more than seven years thereafter, and entering upon and examining defendant's land all without her knowledge, and attempting to exercise option, held to have no right to specific performance, since reasonable time within which option was to be exercised had expired, and situation was not affected either by fact that defendant's status toward her own property had not changed, or by fact that some one had expended a considerable sum in making an unwarranted examination.

APPEAL IN CHANCERY. Heard on pleadings and chancellor's findings of fact after the December Term, 1926, Bennington County Sherburne, Chancellor. Decree dismissing bill of complaint. The plaintiff appealed. The opinion states the case.

Decree affirmed, and cause remanded.

F.C. Archibald, Holden & Healy, and Ropes, Gray, Boyden & Perkins (of Boston, Mass.), for the plaintiff.

The grant, by an instrument under seal of a right to go on the land of another and sever property from the soil, e.g., minerals, creates a profit … prendre. Tiffany, Real Property, pp. 868 and 1396; Arnold v. Stevens, 24 Pick. (Mass.) 106; New Haven v. Hotchkiss, 77 Conn. 168; Smith v. Cooley, 65 Cal. 46; Gloninger v. Franklin Coal Co., 55 Pa. St. 9; Baker v. Kenney, 145 Iowa, 638; Fitzgerald v. Firbank, 2 Ch. Div. 96; Compare, Payne v. Sheets, 75 Vt. 335, and note 31 Har. Law R. 882. See, also, Blewett v. Tregonning, 3 Ad. & El. 554; Constable v. Nicholson, 14 C. B. N. S. 230; Maxwell v. Martin, 6 Bing. 522.

Even though the instrument grants only the right to take away such minerals as are necessary for the purpose of testing to determine the value of the property for mining purposes, such limited right, when created by a grant is nevertheless a profit. Fitzgerald v. Firbank, 2 Ch. Div. 96; Grubb v. Grubb, 74 Pa. St. 25; Welcome v. Upton, 6 M. & W. 536.

Profits are legal interests in rem. Payne v. Sheets, 75 Vt. 335; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21; New Haven v. Hotchkiss, 77 Conn. 168; Baker et al. v. Hart et al., 123 N.Y. 470; Calwalder v. Bailey, 17 R.I. 495.

Like other interests in real estate, right of profit … prendre is held in fee for life, years, or at will. Tiffany, Real Property, 381; Smith v. Cooley, 65 Cal. 46; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21; Huff v. McCauley, 53 Pa. St. 206; Thompson on Real Property, 295; Munn v. Stone et al., 4 Cush. (Mass.) 146.

Where an interest in real estate is given A, his heirs and assigns, A has the fee, and this is also true of profits. New Haven v. Hotchkiss, 77 Conn. 168; Welcome v. Upton, 6 M. & W. 536; Rich v. Doneghey, 71 Okl. 204.

The option to purchase contained in the instrument is coextensive in duration with the profit, under which circumstances requirement that time for exercise of option must be fixed or determinable is met. Tiffany, Real Property, p. 1411; Morse v. Aldrich, 19 Pick. (Mass.) 449; Ball v. Milliken, 31 R.I. 36; Furnival v. Crew, Atk. 83; Copper Mining Co. v. Beach, 13 Beavan, 478; Blackmore v. Boardman, 28 Mo. 420; Banks et al. v. Haskie, 45 Md. 207; Hagar, Assignor v. Buck, 44 Vt. 285.

One purchasing land with notice of a prior option takes subject thereto. Hagar, Assignor v. Buck, supra; Ross v. Parks, 93 Ala. 153; Sizer v. Clark, 116 Wis. 534; Horgan v. Russell, 24 N.D. 490; House v. Jackson, 24 Ore. 89; Williston, Contracts, 936.

A profit is an incorporeal hereditament, and a conveyance or reconveyance of an incorporeal hereditament can only be by grant. i.e., an instrument under seal. Heller v. Dailey, 28 Ind. A. 555; Tiffany, Real Property, p. 1399; Tracy v. Atherton, 36 Vt. 503; Sowles v. Sowles & Minot et al., 82 Vt. 344.

The doctrine of abandonment of incorporeal interests has no place in our law if extended beyond cases where there is a technical estoppel. Heller v. Dailey, supra; Mason v. Horton, 67 Vt. 266; Scott v. Moore, 98 Va. 668.

There can be no abandonment so as to affect the rights of a subsequent purchaser relying on the records. Dahlberg v. Haeberle, 71 N. J. Law, 514; Ward et ux. v. Tripple State Nat. Gas & Oil Co., 131 Ky. 711; Harvey v. Rubin, 219 Mich. 307; Braswell et al. v. Columbia County Development Co. et al., 153 La. 691. Collins M. Graves and George L. Hunt for the defendant.

The part of agreement sought to be enforced is a mere option, and unless tender and demand made were effective to ripen option into contract, plaintiff has no contract capable of specific enforcement, nor any estate in the property under that part of the agreement, and what estate, if any, plaintiff may have under the other part of the agreement is otherwise immaterial. Durfee House Furn. Co. v. Great A. & Pac. Tea Co., 100 Vt. 204, 207, 208, and cases cited.

Until acceptance, the option was a conditional unilateral undertaking, and there was no enforceable covenant until the condition was performed. Kadish v. Lyon (Ill.), 82 N.E. 194.

The implied condition of the option that it should be exercised within a reasonable time was not met, and in such an option time is the essence of the contract, and, if no time is mentioned, it is a reasonable time, unless a valid excuse exists for delay. 40 C. J. 953, 954, 956, and cases cited; 13 C. J. 683, 684, and cases cited; James on Option Contracts, 376, 856, 862; West Virginia Pulp & Paper Co. v. Cooper (W. Va.), 106 S.E. 55, 59.

Time being the essence of the option, although a reasonable rather than a specified time, and there having been no acceptance within that time, plaintiff is not entitled to specific performance. Sowles v. Hall, 62 Vt. 247, 254; Smead v. Lampher, 87 Vt. 1, 3; Deerfield Lumber Co. v. Lyman, 89 Vt. 201, 211.

The intention and situation of the parties, surrounding circumstances, subject-matter, and object and purpose to be accomplished are to be considered in construing an instrument, but rules of construction cannot override the intention of the parties as drawn from the instrument itself. Burlington v. Mayor of Burlington, 98 Vt. 388, 397; Johnson v. Barden, 86 Vt. 19, 25, and cases cited; De Goosh v. Baldwin, 85 Vt. 312; 317; Walker v. Pierce, 38 Vt. 94, 97; Robinson v. Railroad Co., 59 Vt. 426, 432; Keeler v. Wood, 30 Vt. 242, 245; Flagg v. Eames, 40 Vt. 16, 23; Clarke v. Myles, 95 Vt. 460, 463.

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