Wilson v. Higbee

• Decision Date: 02 July 1894
• Docket Number: 566.
• Citation: 62 F. 723
• Parties: WILSON v. HIGBEE.
• Court: U.S. District Court — District of Nevada

62 F. 723

WILSON v. HIGBEE.

No. 566.

United States Circuit Court, D. Nevada.

July 2, 1894

James F. Dennis and Trenmor Coffin, for plaintiff.

J. L Wines, for defendant.

HAWLEY District Judge (orally).

This is an action at law to recover damages for false representations, deceit, and fraud in the sale of land. It was commenced in the state court, and from thence removed, by the petition of defendant, on the ground of diverse citizenship of the parties, and was tried in this court without a jury.

The testimony shows that on the 26th of September, 1887, the defendant made, executed, and delivered to plaintiff a quitclaim deed of 92.12 acres of land, with the appurtenances. This deed, among other things, contained the following proviso, viz.:

'Provided always, nevertheless, and it is distinctly understood and agreed between the parties hereto, anything herein contained to the contrary notwithstanding, that said party of the first part expressly reserves from the operation of this conveyance, and retains and keeps unto himself and his heirs and assigns, forever, so much and all of said premises hereinbefore described as may be now or hereafter necessary to the free, full, and perfect enjoyment of and use by said party of the first part, his heirs and assigns of, in, or to the waters of said Duck creek and its tributaries, and of all water, water rights, and privileges heretofore had or enjoyed by the said party of the first part and his grantors of, in, and about the said premises or any part thereof, and all water that now flows or hereafter may flow upon, through, over, or across, upon the surface or otherwise, or in any manner, in and about said premises, together with the right of free access therefrom and thereto, as well to any portion as to the whole thereof, with the right to construct and maintain reservoirs, ditches, flumes, sewers, drains, or channels, and any and all thereof, upon, in, and about said premises, for mining purposes.'

At the time of the execution and delivery of the deed, defendant represented to the plaintiff that he was the owner of the water of Duck creek, which, in its natural course, flowed over, upon, and through the land, and assured plaintiff that he could and would have this water for agricultural purposes, whereas the truth was that defendant did not then own the water, because he had conveyed the same to one John Leick long prior thereto, to wit, on the 21st day of April, 1887, and the deed conveying the water right was of record. Plaintiff could have ascertained these facts if he had taken the precaution to have the records examined, but he relied upon defendant's representations being true, and would not have purchased the property if he had known the facts concerning the prior sale of the water.

It was argued on behalf of defendant that the deed does not convey, or purport to convey, any water or water rights whatever, but, on the contrary, expressly contains an exception showing that the water was not intended to be conveyed.

Objection was made to the introduction of oral evidence as to what occurred prior to and at the time of the execution of the deed, as to the understanding of the parties in relation thereto. This testimony was admissible, not for the purpose of changing the terms of the deed, as claimed by defendant, but for the purpose of explaining the situation, understanding, and intention of the respective parties. The intention of the parties, when it can be ascertained, is to govern in the construction of deeds, as well as other written contracts; and, if the language used in the deed is susceptible of more than one interpretation, it is the rule that courts will look at the situation of the parties, the object they had in view, and the surrounding circumstances existing at the time the contract was executed, as well as the subject-matter of the same; and, to this extent, extraneous evidence is admissible to aid in the construction of the instrument. French v. Carhart, 1 N.Y. 96; Bridger v. Pierson, 45 N.Y. 601; Pike v. Munroe, 36 Me. 309; 2 Devl.Deeds, § 990.

The land conveyed by the deed was arid, and of no value for agricultural purposes without the use of water to irrigate the same during the dry season. It was purchased by the plaintiff for agricultural purposes,-- for a home for himself and family. The water of Duck creek, if not otherwise appropriated or conveyed, naturally belonged to, and was appurtenant to, the land, and would be conveyed with it unless expressly excepted or reserved therefrom by apt and appropriate words in the deed. The defendant owned certain mines and a mill site in the canon above this land, which, for successful operation, required the use of the water for mining and milling purposes. The water of the creek could be used by the defendant for such purposes without detriment to its use by the plaintiff for agricultural purposes. The deed was typewritten, and, when read over by plaintiff, the words 'for mining purposes' were inserted at his request. Plaintiff testified that, 'at the very hour and very moment that he (defendant) put his name to the instrument, he guarantied me the use of the water for agricultural purposes,' and that there was no question whatever between them, at the time, but what the water should belong to him when the deed was executed. 'I was to have the use of the water for agricultural purposes, and he was to have it for mining purposes only. * * * He told me, on every occasion, that he never sold any water to Leick. * * * Q. Did he say so when you took the deed of the property from him? A. Yes, sir. Q. Did he say so at the particular time that he delivered the deed to you? A. Yes, at that very moment. ' This testimony is not denied. It shows clearly, and beyond all question, that it was plaintiff's understanding, at least, that the deed conveyed the water to him for agricultural purposes, and that defendant reserved the right to use the same for mining purposes. But, independent of the testimony, I am of opinion that...