MR. JUSTICE STARK
delivered the opinion of the court.
This is an action to quiet title. The complaint is in the ordinary short form used in such cases and alleges that plaintiff is, and for a long time had been, the owner of the north half of section 4, township 34 north, range 1 west, in Toole county, “together with an undivided ninety-three one-hundredths interest in and to all of the oil, gas and other minerals in or under” the same; that the defendants claim an estate or in
terest therein adverse to plaintiff, which claim is without any right whatever, and prays that the defendants be required to set forth the nature of their claim; that it be adjudged that defendants have nó estate or interest whatever in or to said land or premises, but that plaintiff's title thereto is good and valid, and for general relief.
The answer admits that defendants claim an interest in the lands and minerals described in the complaint adverse to plaintiff, and then sets forth the nature of said claim, as follows: That on December 21, 1922, while the plaintiff was the owner and in possession of the land in question, for a valuable consideration, she, with her husband, Theodore B-. Hochsprung, conveyed to the defendant Stevenson a four and one-half per cent interest in and to all the oil, gas and other minerals in and under, or that might be produced from, said land, with the right of ingress and egress for the purpose of mining, exploring and drilling for oil, gas, and other minerals, and removing the same therefrom, by an instrument in writing designated as an “assignment of royalty,” which, in addition to the above grant, contained the following:
“And said above-described lands being now under an oil and gas lease originally executed in favor of and held by Carter Oil Company, it is understood and agreed that this sale is made subject to said lease, but covers and includes nine twenty-fifths of all the oil royalty and gas rental or royalty due and to be paid under the terms of said lease. It is agreed and understood that nine twenty-fifths of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to said L. C. Stevenson,
and in the event that the said above-described lease for any reason becomes canceled or forfeited, then and in that event, the lease interests and all future rentals on said land, for oil, gas, and mineral privileges shall be owned jointly by Edith Hochsprung and Theodore B. Hochsprung and L. G.
Stevenson each owning proportionate interest, respectively, in all oil, gas, and other minerals in and upon said land, together with proportionate interest in all future rents.”
It is then alleged that on or about the fifth day of April, 1927, the lease held by the Carter Oil Company was surrendered, canceled and forfeited; that by mesne conveyances the defendant Sunburst Oil & Gas Refining Company had become, and still is, the owner and entitled to the possession of the estate and interest acquired by said Stevenson in said land “and in and to all oil, gas and other minerals in and under the same to the extent of nine twenty-fifths thereof,” and the prayer is that its title thereto may be quieted.
In her reply the plaintiff admitted the execution of the instrument relied upon by appellant, and by way of affirmative defense alleged that such instrument was prepared by the defendant Stevenson; that he was trained in drawing such instruments, and that she was not; that defendant Stevenson advised her that only a four and one-half per cent royalty interest was conveyed; that such advice was made deliberately and intentionally and was relied upon by plaintiff, and she thereupon executed the instrument under the impression that it conveyed only a four and one-half per cent royalty interest.
The defendants moved to strike these allegations of affirmative defense from the reply, for the reason that they constituted a departure from the complaint, which motion was overruled. The ease was brought on for trial before the court without a jury. At the opening of the case counsel for the plaintiff, apparently having reference to the argument of counsel for defendants on motion to strike, said to the court: “As counsel stated in his argument, this is a suit to quiet title. ® * * Defendant sets forth this particular instrument as the basis of its claim of title. * * * The real controversy here between the plaintiff and the defendant is the construction of that instrument.”
After the evidence had been received, the court made findings of fact and conclusions of law in favor of the plaintiff, upon which a judgment was entered, from which the Sunburst Oil
&
Gas Refining Company, hereafter called the defendant, has appealed.
The first contention made by counsel for defendant is that in an action to quiet title, brought under the provisions of section 9479, Revised Codes of 1921, the court cannot be called upon to merely construe an instrument, and hence did not have authority to enter a judgment in this ease other than one dismissing the same.
Section 9479, supra, reads: “An action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons, both known and unknown, who claim or may claim any right, title, estate or interest therein, or lien or incumbrance thereon, adverse to plaintiff’s ownership, or any cloud upon plaintiff’s title thereto, whether such claim or possible claim be present or contingent, including any claim or possible claim of dower, inchoate or accimed, for the purpose of determining such claim or possible claim and quieting the title to said real estate. * * * ”
In section 9487, Id., as amended by Session Laws of 1923, page 119, it is provided that, upon the service of summons in the action provided for in section 9479, the court in which “such action is tried shall have jurisdiction to make a complete adjudication of the title to the lands named in the complaint, and the title to which is sought to be quieted, including jurisdiction to direct the cancellation of instruments constituting clouds upon such title. * * * ”
Section 6870, Revised Codes of 1907, as amended hy Chapter 113, Laws of 1915, was the same as section 9479, supra, and in speaking of that section, in
Mannix
v.
Powell
County, 60 Mont. 510, 199 Pac. 914, this court said: “Like statutes have been construed by the courts frequently, and it is the prevailing
opinion that under such a statute as ours the owner of any estate or interest in land of which the law takes cognizance is entitled to have any claim adverse to his interest, such as it is, determined, and the title quieted.”
In
Slette
v.
Review Pub. Co.,
71 Mont. 518, 230 Pac. 580, this court quoted with approval from
Castro
v.
Barry,
79 Cal. 443, 21 Pac. 946: ‘ ‘ The action may be maintained by the owner of property to determine any adverse claim whatever. ’ ’
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MR. JUSTICE STARK
delivered the opinion of the court.
This is an action to quiet title. The complaint is in the ordinary short form used in such cases and alleges that plaintiff is, and for a long time had been, the owner of the north half of section 4, township 34 north, range 1 west, in Toole county, “together with an undivided ninety-three one-hundredths interest in and to all of the oil, gas and other minerals in or under” the same; that the defendants claim an estate or in
terest therein adverse to plaintiff, which claim is without any right whatever, and prays that the defendants be required to set forth the nature of their claim; that it be adjudged that defendants have nó estate or interest whatever in or to said land or premises, but that plaintiff's title thereto is good and valid, and for general relief.
The answer admits that defendants claim an interest in the lands and minerals described in the complaint adverse to plaintiff, and then sets forth the nature of said claim, as follows: That on December 21, 1922, while the plaintiff was the owner and in possession of the land in question, for a valuable consideration, she, with her husband, Theodore B-. Hochsprung, conveyed to the defendant Stevenson a four and one-half per cent interest in and to all the oil, gas and other minerals in and under, or that might be produced from, said land, with the right of ingress and egress for the purpose of mining, exploring and drilling for oil, gas, and other minerals, and removing the same therefrom, by an instrument in writing designated as an “assignment of royalty,” which, in addition to the above grant, contained the following:
“And said above-described lands being now under an oil and gas lease originally executed in favor of and held by Carter Oil Company, it is understood and agreed that this sale is made subject to said lease, but covers and includes nine twenty-fifths of all the oil royalty and gas rental or royalty due and to be paid under the terms of said lease. It is agreed and understood that nine twenty-fifths of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to said L. C. Stevenson,
and in the event that the said above-described lease for any reason becomes canceled or forfeited, then and in that event, the lease interests and all future rentals on said land, for oil, gas, and mineral privileges shall be owned jointly by Edith Hochsprung and Theodore B. Hochsprung and L. G.
Stevenson each owning proportionate interest, respectively, in all oil, gas, and other minerals in and upon said land, together with proportionate interest in all future rents.”
It is then alleged that on or about the fifth day of April, 1927, the lease held by the Carter Oil Company was surrendered, canceled and forfeited; that by mesne conveyances the defendant Sunburst Oil & Gas Refining Company had become, and still is, the owner and entitled to the possession of the estate and interest acquired by said Stevenson in said land “and in and to all oil, gas and other minerals in and under the same to the extent of nine twenty-fifths thereof,” and the prayer is that its title thereto may be quieted.
In her reply the plaintiff admitted the execution of the instrument relied upon by appellant, and by way of affirmative defense alleged that such instrument was prepared by the defendant Stevenson; that he was trained in drawing such instruments, and that she was not; that defendant Stevenson advised her that only a four and one-half per cent royalty interest was conveyed; that such advice was made deliberately and intentionally and was relied upon by plaintiff, and she thereupon executed the instrument under the impression that it conveyed only a four and one-half per cent royalty interest.
The defendants moved to strike these allegations of affirmative defense from the reply, for the reason that they constituted a departure from the complaint, which motion was overruled. The ease was brought on for trial before the court without a jury. At the opening of the case counsel for the plaintiff, apparently having reference to the argument of counsel for defendants on motion to strike, said to the court: “As counsel stated in his argument, this is a suit to quiet title. ® * * Defendant sets forth this particular instrument as the basis of its claim of title. * * * The real controversy here between the plaintiff and the defendant is the construction of that instrument.”
After the evidence had been received, the court made findings of fact and conclusions of law in favor of the plaintiff, upon which a judgment was entered, from which the Sunburst Oil
&
Gas Refining Company, hereafter called the defendant, has appealed.
The first contention made by counsel for defendant is that in an action to quiet title, brought under the provisions of section 9479, Revised Codes of 1921, the court cannot be called upon to merely construe an instrument, and hence did not have authority to enter a judgment in this ease other than one dismissing the same.
Section 9479, supra, reads: “An action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons, both known and unknown, who claim or may claim any right, title, estate or interest therein, or lien or incumbrance thereon, adverse to plaintiff’s ownership, or any cloud upon plaintiff’s title thereto, whether such claim or possible claim be present or contingent, including any claim or possible claim of dower, inchoate or accimed, for the purpose of determining such claim or possible claim and quieting the title to said real estate. * * * ”
In section 9487, Id., as amended by Session Laws of 1923, page 119, it is provided that, upon the service of summons in the action provided for in section 9479, the court in which “such action is tried shall have jurisdiction to make a complete adjudication of the title to the lands named in the complaint, and the title to which is sought to be quieted, including jurisdiction to direct the cancellation of instruments constituting clouds upon such title. * * * ”
Section 6870, Revised Codes of 1907, as amended hy Chapter 113, Laws of 1915, was the same as section 9479, supra, and in speaking of that section, in
Mannix
v.
Powell
County, 60 Mont. 510, 199 Pac. 914, this court said: “Like statutes have been construed by the courts frequently, and it is the prevailing
opinion that under such a statute as ours the owner of any estate or interest in land of which the law takes cognizance is entitled to have any claim adverse to his interest, such as it is, determined, and the title quieted.”
In
Slette
v.
Review Pub. Co.,
71 Mont. 518, 230 Pac. 580, this court quoted with approval from
Castro
v.
Barry,
79 Cal. 443, 21 Pac. 946: ‘ ‘ The action may be maintained by the owner of property to determine any adverse claim whatever. ’ ’
In its answer the defendant admits that it asserts a claim to an estate or interest in the premises or minerals described in the complaint adverse to plaintiff, and sets forth the “assignment of royalty” as the basis of such claim. The plaintiff does not seek to invalidate any title actually vested in the defendant by the instrument in question; she does not seek the cancellation of that instrument in whole or in part; she merely says that it vested the defendant with four and one-half per cent of the minerals in the ground and left her vested with title to the remaining ninety-five and one-half per cent thereof, to a portion of which the defendant asserted its adverse claim. Whether the instrument constituted a cloud upon plaintiff’s title to the minerals is wholly immaterial, “it being sufficient to warrant a decree quieting title that a claim is made adversely to the title of the true owner.”
(Slette
v.
Review Pub. Co.,
supra.)
Under the provisions of section 9487, above, the court had authority to make a complete adjudication of the respective rights of the plaintiff and defendant to the lands and mineral rights involved.
The main question in the case is presented by a determination of the meaning of the italicized portion of the “assignment of royalty,” above quoted.
In the first place, the plaintiff claims that Stevenson did not obtain any interest in the oil, gas and other minerals under the land beyond the four and one-half per cent mentioned in the
first part of the assignment of royalty, for tbe reason tbat tbe lease to tbe Carter Oil Company never became canceled or forfeited. In view of tbe conclusion at wbicb we bave arrived, it is not necessary to consider tbis contention.
We come now to a consideration of tbe meaning of tbe italicized portion of tbe assignment of royalty, above quoted. Plaintiff contends tbat upon tbe cancellation and forfeiture of tbe lease of tbe Carter Oil Company tbe defendant Sunburst Oil •& -Gas Refining Company, as tbe successor in interest of Stevenson, owned four and one-balf per cent of the oil, gas and other minerals in and upon tbe land and tbe future rents thereof, whereas, tbe defendant claims tbat upon tbe happening of tbat event it became tbe owner of nine twenty-fifths of such oil, gas and other minerals. Tbe plaintiff’s contention is based upon tbe ground tbat tbe paragraph contains no operative words of conveyance sufficient to transfer to tbe defendant an interest in such minerals and rights in addition to the four and one-balf per cent mentioned in tbe granting clause of the instrument. We agree with tbis contention.
It is as a general rule necessary tbat a deed contain operative words of grant (18 C. J. 128); tbat a deed without words of conveyance passes no title (4 Thompson on Real Property, p. 143); and tbat, if an instrument has no words of conveyance, tbe courts bave no right to put them in by interpretation (4 Thompson on Real Property, p. 144). Tbe intention of tbe grantor in a deed is to be gathered from a consideration of tbe entire instrument, taking into consideration all of its provisions, and every part must be given effect if reasonably practicable and consistent with its evident purpose and operation, “not, indeed, as it is presented in particular sentences or paragraphs, but according to its effect when viewed as an entirety.” (R.
M. Cobban Realty Co.
v. Donlan, 51 Mont. 58, 149 Pac. 484; sec. 7530, Rev. Codes 1921.)
Taking this assignment of royalty “by its four corners,” it is to be observed that it is perfectly clear that the grantee Stevenson (1) purchased from the grantor four and one-half per cent of the minerals in the land, and (2) that the sale covered and included nine twenty-fifths of the oil and gas rental or royalty due and to be paid under the terms of the lease held by the Carter Oil Company, and also nine twenty-fifths of the money rentals which might be paid to extend the term within which a well might be begun under the terms of that lease. So much of the grant is plain. The instrument then goes on to provide that, if the Carter Oil Company lease becomes canceled or forfeited, the lease interests or all future rents and mineral privileges shall be owned by Edith Hochsprung, Theodore R. Hochsprung, and I». C. Stevenson, each owning “proportionate interest” in the oil, gas and other minerals in and upon the land and all future rents. The oil and gas lease held by the Carter Oil Company did not operate to convey to it the title to the oil and gas in place.
(Homestake Exploration Co.
v.
Schoregge,
81 Mont. 604, 264 Pac. 388.) After the execution of this lease there was nothing to prevent the plaintiff from conveying to Stevenson any interest she desired to in the minerals in or under the premises. Whatever interest she should convey would be subject to the terms of the Carter Oil Company lease. The plaintiff elected to sell to Stevenson, and he elected to buy from her four and one-half per cent of these minerals and mineral rights, and also a nine twenty-fifths interest in the royalties and rentals due and to become due and owing under the terms of the lease. These are the only items which the instrument indicates as being within the terms of the grant. When the Carter Oil Company, by cancellation or forfeiture of its lease, was divested of its interest in its mineral rights to the land in question, such rights reverted to the plaintiff or her grantee. Such rights then became vested in her or her assigns in proportion to their ownership thereof. This
would follow as a matter of law. If the defendant became the owner of the same, or any part thereof, it must have been by virtue of a conveyance; i. e., the transfer of the title or an interest therein from the original owner to it or its predecessor in interest.
The clause in question does not contain any operative words of conveyance. The words “shall be owned jointly by” do not denote a present passing of title. In
McGarrigle
v.
Roman Catholic Orphan Asylum,
145 Cal. 694, 104 Am. St. Rep. 84, 1 L. R. A. (n. s.) 315, 79 Pac. 447, the court held that the expression “shall become and be the property of” was insufficient to pass any title to real estate for lack of operative words. There is no substantial difference in the meaning of the expression we are considering and the one construed in the
McGarrigle Case.
The defendant calls attention to the later ease of
Hughes
v.
Scott,
47 Cal. App. 264, 190 Pac. 643, and contends that it amounts,to a modification of the holding in the
McGarrigle Case.
In the
Hughes Case,
“revert” was considered to be an operative word of conveyance as indicating an intention that the title should pass, and in the opinion the court referred to the ease of
Jacobs
v.
All Persons,
12 Cal. App. 163, 106 Pac. 896, where a like meaning was given to the words “shall pass to.” These words “revert” and “shall pass to,” express an intention that the title shall pass and are clearly distinguishable from the expression “shall be owned jointly by.”
While no adjudicated ease directly in point has been found the following lend support to the views above expressed:
Webb
v.
Mullins,
78 Ala. 111;
Long
v.
Holden,
216 Ala. 81, 112 South. 444;
Smith v. Williams,
141 S. C. 265, 139 S. E. 625.
We now consider the further statement in the instrument to the effect that, upon the cancellation or forfeiture of the Carter Oil Company lease, the plaintiff, her husband, and Stevenson should each own “proportionate” interests, respectively, in the mineral rights in and upon the land. “Propor
tionate” means “adjusted to something else according to a certain rate of comparative relation.” (Century Dictionary.) By the first clause of the assignment the royalty of four and one-half per cent of the mineral rights in the land passed to and became the property of Stevenson and his assigns, leaving ninety-five and one-half per cent of such rights in the plaintiff or her assigns, and these numerals then represented the rate of comparative relation or proportionate interest of the parties to such rights. The succeeding clauses of the instrument relate to royalties and rentals payable to plaintiff under the lease held by the Carter Oil Company. But this lease did not convey any title to the minerals in place under the land
(Homestake Exploration Co.
v.
Schoregge,
supra), and the right to royalty or rent under the lease ended with its termination, leaving as the only basis for computing the proportionate interests of the parties their respective percentages of ownership in the mineral rights in the land freed from the Carter Oil Company lease. This we conceive to be the true interpretation of the language which the parties used.
The instrument in question, in addition to the mineral interests conveyed, granted “the right of ingress and egress at all times for the purpose of mining, drilling, and exploring said lands for oil, gas, and other minerals and removing the same therefrom.” In the decree entered by the court this right was not specifically mentioned, and the failure of the court so to do is made the basis of defendant’s assignments of error 5 and 8'.
By the conveyance of the four and one-half per cent interest of the oil, gas and other minerals in and under the land to the defendant’s predecessor in interest, which was subsequently transferred to the defendant, the plaintiff and the defendant became tenants in common. (Secs. 6682, 6683, Rev. Codes 1921;
Rodda
v.
Bent,
68 Mont. 205, 217 Pac. 669;
Isom
v.
Larson,
78 Mont. 395, 255 Pac. 1049.) “And since from the very nature of mining property it is valuable only because of
the mineral it is supposed to contain, each of the eotenants may work it without being guilty of waste.” (7 Cal. Jur. 347.) And for such purpose the tenant in common has a right of ingress and egress. (Id., 347; 1 Thornton on Oil & Gas, sec. 312;
Prairie Oil & Gas Co.
v.
Allen
(C. C. A.), 2 Fed. (2d) 566.)
The instrument did not assume to give to the grantee named therein the exclusive right of ingress and egress for the purpose of mining, drilling, and exploring the lands for oil, gas and other minerals; it merely expressly declared what the law would imply under the authorities above cited, viz., the right of the holder of the undivided interest to enter upon the common property and exercise the rights conferred by section 9091, Revised Codes of 1921.
“Not only may a tenant in common enjoy the common estate, but, by either lease or license he may confer upon another person the right to occupy and use it as fully as such lessor or licensor might if such lease or license had not been granted.” (7 Cal. Jur. 358;
Prairie Oil & Gas Co.
v.
Allen,
supra.)
Since the decree of the court below recognized and in effect declared that defendant is a tenant in common owning four and one-half per cent of the minerals in the land, its right of ingress and egress for the purpose of mining is necessarily implied in the decree. “Necessary implication is beyond doubt as much a part of an instrument as if that which is so implied were plainly expressed.” (6 R. C. L. 856.)
From our consideration of the record we are of opinion that the learned judge before whom the case was tried placed a correct construction upon the instrument in question, and the judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Myers, Matthews and Galen concur.
Rehearing denied April 26, 1928.