Harlow v. Lake Superior Iron Co.

36 Mich. 105, 1877 Mich. LEXIS 90

• Court: Michigan Supreme Court
• Decided: April 4, 1877
• Status: Published

Opinion

Marston, J:

Plaintiff in error, claiming to be owner of an undivided one-fourth leasehold interest, for ninety-nine years from and after Sept. 28, 1850, in the southwest quarter of section ten, township 47 north, of range 27 west, in 1875 brought an action of ejectment to recover .possession thereof.

Upon the trial, to maintain the action, he introduced in evidence:

First; A certified transcript of articles of incorporation, dated February 21, 1853, whereby the defendant became a body corporate;

Second, Original articles ofv) copartnership of the Marquette Iron Company;

Third, A copy of a patent, dated December 1, 1851, of the lands in question, from the United States to Isaiah Briggs.

He also introduced certified copies from the records of of the following instruments:

Fourth, A lease from Isaiah Briggs to Robt. J. Graveraet;

Fifth, An assignment of the same by Graveraet to the Marquette Iron Company; and,

Sixth, A deed from said Graveraet to Amos R. Harlow and Waterman A. Fisher, whereby said Graveraet did “recede and retire” from the partnership known as the Marquette Iron Company, and did thereby yield, quit-claim and forever release to said Fisher and Harlow aU rights, claims and titles, legal or equitable, to the property and effects, both real and personal, of said company, excepting certain property not affecting the lands in question.

The plaintiff farther introduced evidence tending to prove that he took possession of the property' in question in February, 1857, and erected a log house thereon, and remained in possession thereof about six weeks; that on returning to the premises in October following he found the defendant in possession, and that his right therein was disputed. It also appeared that Edward Clarke died in August, 1849. Having rested, the defendant’s counsel moved the court to strike out and exclude from the evidence introduced:

First, The lease from Briggs to Graveraet;

Second, The assignment thereof to the Marquette Iron Company;

Third, The deed from Graveraet to Harlow and Fisher of the partnership assets of the Marquette Iron Company; because

First, They were not admissible under the declaration;

Second, The assignment was void and could vest no title in the Marquette Iron Company, said company being a co-partnership and not a corporation; and

Third, If any interest was vested in the plaintiff it was as a partner; and it not appearing that the affairs of the partnership had been settled, plaintiff could not maintain ejectment thereon.

The motion was granted, and no other evidence having been introduced, the court directed the jury to return a verdict for the defendant, and ^o all of which, counsel for plaintiff excepted. A verdict and judgment having been rendered for the defendant, the plaintiff brings the case here for review upon writ of error.

The copartnership known as the Marquette Iron Company, when formed, was composed of Waterman A. Fisher, Edward Clarke, Amos E. Harlow and Kobert J. Graveraet. Clarke died in 1849, and Graveraet withdrew therefrom in August, 1852. While it appears from the .record that the Marquette Iron Company did carry on business for some time after its formation, it does not appear that any thing was done by it, under the Briggs lease, upon the lands in dispute. A number of questions growing out of the relations of the plaintiff with the Marquette Iron Company, similar to those raised in the court below, were elaborately discussed upon the argument. We do not, however, deem it necessary to consider them, as the view we take of this case upon a construction of the lease, is, we think, decisive of the present action.

Conceding, for the purposes of the present case, that the plaintiff has shown in himself an undivided one-fourth interest under the lease, and his right to maintain an action of ejectment therefor, which, to say the least, is very doubtful, let us turn to that instrument and ascertain from it, examined as a whole and in the light of the circumstances existing and known to the parties at the time of its execution, what rights the lessee acquired thereunder. A copy of the lease is given in the margin. It is not claimed that the rights then granted have since, either by construction of the parties, possession of the premises thereunder, or otherwise, been enlarged, although the plaintiff’s interest therein may have been increased by the death of Clarke and the deed from Graveraet.

It is unnecessary to attempt to define or even to discuss in this case all the rights which a lessee of wild lands would have in this state. We may, however, for the purposes of this case, consider the law as settled, giving to a lessee of lands for years the right to work an open mine upon the premises, unless restricted by the terms of his lease; and it is also equally well settled that he would not have the right to open a new mine, unless the right so to do was expressly granted. Such, it is said, are the general rights of lessees of lands in which there are minerals. — 1 Wash., 412'.

It is not claimed that there was an open mine upon the premises in dispute at the time the lease was executed, and while one of the chief objects in view, if not the only one, was to grant, on the one part, and acquire on the other; certain mineral rights, defendant insists that but a mere right to enter, search for, dig and raise minerals, with the right of ownership of the minerals thus raised was granted, and that for such a right ejectment will not lie. The plaintiff claims that the lease from Briggs to Graveraet was intended to and did lease an undivided one-half of the land itself for the period therein mentioned and for the purpose therein stated.

If; would not only be unjust but contrary to the well' settled rules of construction to dispose of this case upon any narrow or technical view, based upon any particular word or clause in the lease. When we examine the entire instrument as a whole, we think there is no difficulty in arriving at a correct conclusion, one that will be in entire accord with the intention of the parties making it, in harmony with the surrounding circumstances then existing, and consistent with each and all the various provisions of the instrument itself. And while a consideration of some particular part, if standing alone, might point to a certain definite result, yet we must still recognize the fact that any such clause may be controlled by the connection in which it is used, or by other parts of the same instrument; and that the legal construction or conclusion arising from the entire instrument, may be entirely different from, or even contrary to, and at variance with, the conclusion which a part standing alone would seem to indicate.

The instrument at the outset purports to be a lease of the undivided one-half part of a certain description of land, and if it had gone no further, it is not at all likely that any question could have arisen thereon. This clause is, however, we “think, controlled and limited by what follows. It is not a lease of the lands, with the privilege of mining thereon, or together with the ore and minerals to be found upon said lands, nor are there any words contained therein, indicating that this first clause is to be in any way added to, extended, or enlarged by what follows, or that any additional right is intended to be conferred and added thereto. That other rights, rights which the law would not have implied, viz.: to open mines and work them for the lessee’s sole benefit, are granted, is clear, but they are not in the nature of additional rights and privileges, but are placed there to limit and define the nature and extent of the clause immediately preceding and of which they form a part.

When the right is thus defined in the lease, it is no longer a lease of the land, to be used by the lessee for such purposes, within the limits allowed by law, as he might deem proper, but to be used for a particular specific purpose, so far as might be necessary to the successful accomplishment of that purpose, and for none other. A specific purpose having been thus set forth in the lease, excludes all others which the lessee might otherwise have been entitled to. This mining privilege might of course have been so expressed in the lease as to indicate clearly an intention to confer the same in addition to any and. all other rights which -the lessee, even without such a clause, would have had; but the language used in this instrument will not authorize any such enlarged construction. Had the lessee or his assignees entered into actual possession of the lands described in this lease, and upon examination ascertained that the mining interest thereon could not be made productive and profitable, and for that or any other reason have concluded not to engage in the business of mining thereon, could they have retained possession of the lands for any other purpose? Could they have taken any of the wood upon said lands and used it except in connection with the mining interests thereon? Could they have erected and maintained buildings thereon for any other purposes ? In a word, could they have enjoyed any of the rights and privileges usually enjoyed by lessees under a lease of lands, in case they did not engage in and carry on the business of mining thereon? And if they did engage in and carry on the business of mining thereon, were not the purposes for which such lands could be used confined to such as would make the mining interest on said lands productive and profitable?

They had no right to a use of the land for any purpose except as an incident to the mining right granted. While engaged in mining, the lessees could use so much of the land as would be necessary for that purpose, but they could use it for no other. In case the mining business proved unprofitable and was abandoned or not carried on, then they were not entitled to the possession or use of the land for any purpose. In other words, if plaintiff’s claim is correct, -that the lease was one of lands, with the right of mining in addition thereto, then the result would be that they had a lease of lands without any of the usual rights of incidents pertaining thereto; they had a grant of land so limited as to make the grant itself of no effect, while the additional or mining right gave them, as a necessary incident, certain rights in the land. The additional privilege of mining gave them all their rights in the land, while the lease of the land itself gave them no rights whatever therein. It is almost needless to say that we cannot adopt the theory of the plaintiff.

The interest or right leased ivas an undivided one, and gave the lessee the right to prospect upon any part of the lands and open and work such mines as he might deem proper, with the further right to appropriate to his sole use and benefit all ores and minerals procured by him. He had also the right to obtain -wood for said purposes, to erect and maintain buildings suitable and needful for the business. All these rights were expressly granted, and that the rights thus granted might be fully enjoyed, all necessary privileges in the land would pass as incident thereto.

What, then, is the extent of the lessee’s interest in the land itself under such a lease? This must be determined from the extent of his mining operations. If he opened one or more mines and erected buildings suitable and needed for the business, it would seem that for such purpose at least, and perhaps others in connection therewith, he would be entitled to the exclusive possession of portions of the soil, and that an undivided half interest would not be sufficient for such purpose. And if it appeared in this case that the lessee or his assignees had entered upon the land, opened mines, erected buildings and in other ways taken actual possession of some definite parcel or parcels of the land, from which they had been ousted, and had brought their action to recover possession thereof, a different question would have been presented. But until actual possession of some part of the land is taken, their right therein is floating and indefinite; it is a mere incorporeal right which is not capable of enforcement by an action of ejectment.—3 Blackstone, 206; Tyler on Eject., 41, and cases cited.

There are other provisions in this lease strongly corroborative of this view. The lessor expressly retains the use of all this land for agricultural purposes, “saving what is needed for mining purposes.” There is nothing in the case tending to show that either now or at the time this lease was executed, these lands were capable of or could be used for any purpose other than mining or agricultural purposes. Even if they were, the fact that the lessor retains, for the entire term, their use for agricultural purposes, which would necessarily exclude their use by the lessee for any purpose except mining, shows that the lessee’s interest in the land was a mere incidental one, dependent upon the mining right; and the clause relating to taxation favors the same view. It is, however, insisted by the plaintiff that the provisions in the lease by which the lessor agrees not to sell, assign, or encumber “said undivided interest hereby leased,” unless the lessee or his assigns shall have the first refusal to purchase the same, or, “if said quarter-section be divided, then that said Graveraet, his heirs or assigns, shall have the first refusal to purchase said divided half,” and also giving Graveraet the right to have the land divided, are all inconsistent with any view other than the one taken by the plaintiff. We see nothing in these several provisions inconsistent with the view we have taken, and the nature and extent of the interest leased called for the insertion of .some such provisions ■ in the lease to prevent disputes thereafter. At the time this lease was executed it was undoubtedly supposed that the lands described therein were valuable for mining purposes, but whether mining thereon would prove a profitable investment or not, was something that could not then be determined. Even if rich in minerals, large sums of money must be expended in prospecting, opening mines and developing. its mineral resources. If it proved profitable the lessee would be anxious to have his tenure enlarged, and rather than have an incumbrance placed upon the property, they provided that the lessee should first have the privilege of purchasing.

The right leased was that of an undivided one-half. This would give the lessee the right to prospect over the entire lands and open and work as many mines as he might have thought proper. This right he could undoubtedly have assigned or conveyed to a copartnership or corporation, giving it the same right. But he could not, we think, have cut and carved it into several distinct and separate rights, to be held and operated by more than one person, company or corporation. It was, we think, a single right, and could not be subdivided, although it might be owned and operated by a single body composed of several individuals.—Caldwell v. Fulton, 31 Penn. St., 476. Now the right granted by the lease being an undivided one-half, a similar right remained in the lessor. He or his assignees or grantees could also open and work mines upon this same property. And it is highly probable that if mining upon the property proved profitable, a conflict might arise between two individuals, companies or corporations, each owning an undivided half, with the right in each to appropriate to its sole use and benefit all ores and minerals it might procure from said land, and that a division to prevent such a conflict would be necessary. It was but reasonable therefore, and a wise forethought, to provide for a division of their rights, or even for a division and sale of the lands, and that in case of a contemplated sale, encumbrance, or division by the lessor, that the lessee should have the first privilege of purchasing. Such provisions are not inconsistent with, and could not enlarge the previous provisions of the grant.

That a right such as the one here granted is not exclusive, and does not preclude the lessor from exercising or granting a like right to others, see Chetham v. Williamson, 4 East, 476; Stockbridge Co. v. Hudson Co., 107 Mass., 322; Union Petr. Co. v. Bliven Petr. Co., 72 Penn. St., 173.

Looking then at the apparent intention of the parties as-collected from the whole context of this lease, and at what was done under it, we are of opinion that the lessee acquired no such interest in the land as would enable him or his assignees to maintain an action of ejectment for any particular part thereof or interest therein, and that the court did not err in striking out and excluding from the evidence the lease and assignment thereof, and in instructing the jury to find a verdict for the defendant. TJpon the other questions we express no opinion.

The judgment must be affirmed, with costs, and the record remanded for further proceedings under the statute.

The other Justices concurred.

“Enow all men by these presents, that, whereas, I, Isaiah Briggs, of Marquette county, state of Michigan, have this day obtained a pre-emption to, and have paid the full consideration to the receiver of the land office at íáault Ste. Marie, for the quarter section of land lying in Marquette county and state of Michigan, known and described as the southwest quarter of section ten (10), in township forty-seven (47) north, of range twenty-seven (27) west, to which a full title will be perfected: Now, in consideration of five hundred dollars, to me paid by Robert J. Graveraet, of Marquette county and state aforesaid, receipt whereof is hereby confessed, I do hereby let and lease to said Robert J. Graveraet, his heirs or assigns, the equal undivided one-half part of said southwest quarter of said section ten (10), in said township and range, for the full end and term of ninety-nine years from and after the date of these presents, fully to be complete and ended, for all the purposes of mining of iron ore and other minerals, and for all the business of said mining, obtaining ore, roasting the same, obtaining wood for said purposes, erecting and maintaining buildings suitable and needed for said business and calling, and for all purposes of making the mining interest on said land productive and profitable, and granting to said party the right to appropriate to his own sole use and benefit all ores and minerals procured from said land during the term of said lease; and further, I hereby agree and bind myself not to sell, assign, or encumber said undivided interest hereby leased, unless said Graveraet, his heirs or assigns, shall have the first refusal to purchase said undivided one-half, or if said-quarter section be divided, then that said Graveraet, his heirs or assigns, shall have the first refusal to purchase said divided half, on terms to he agreed on between the said parties or their representatives; and said Graveraet shall, on notice to said Briggs, have the right to have said land so divided, o-r to purchase the same as undivided at any time within this lease, by consent of said Briggs; and in case said parties cannot agree'to a division, the price and terms of purchase, then each party shall select one disinterested person, and these two appraisers select a third who shall decide as to a division or purchase, or both; and the award of such appraisers shall hind the respective parties. It is, however, expressly understood that said Briggs retains the use of this land until sold to said Graveraet for agricultural purposes, saving what is needed for mining purposes as .above written; and for a description to said quarter section it is known and described as “fractional quarter section;” and further, this lease is only operative after a confirmation or said pre-emption claim, and said Graveraet is to pay one-third of all taxes to he laid on said fractional quarter section during the term of said lease. This lease hinds, the heirs, administrators, executors and assigns of the respective; parties.

“Signed and sealed at Sault Ste.Marie this twenty-eighth day of September, A. D. 1850.”