113 Minn. 361 | Minn. | 1911
Action to. determine adverse claims of title to eighty acres of land in Crow Wing county. The Minnesota Land & Colonization Company answered, and alleged that in 1905 it conveyed the premises to Ellzey by a deed which contained the reservation and exception as follows: “Reserving and excepting from said lands such as are now known, or shall hereafter be ascertained, to contain coal or iron, and also the use of such surface ground as may be necessary for mining operations, and the right of access to such reserved and excepted coal and iron lands, for the purpose of exploring, developing, and working the same, together with the hereditaments and appurtenances thereunto belonging or in any wise appertaining, with the reservations and exceptions before stated.” And the answer also alleged that the plaintiff bought the lands subject to the right, title, and interest therein, as provided by the reservation.
Plaintiff demurred to the answer, upon the ground that it did not state facts sufficient to constitute a defense. The demurrer was overruled, and the plaintiff appealed. The suggestion of appellant is that the reservation is void for uncertainty, and that the exception is repugnant to the grant, and void.
There are certain elementary principles with reference to the construction of reservations and exceptions in deeds, which require no special consideration. The intention of the parties is to be ascertained from the entire instrument, including the reservation or exception. This includes the ordinary meaning of the words, recitals, context, subject-matter, the object or purpose of introducing the exception or reservation clause, the nature of the reservation or exception, and the attending facts and circumstances surrounding the parties at the time of the making of the deed. It is also elementary that the reservation or exception is void, when totally repugnant to the granting clause. When the grant is direct and positive, it cannot be set aside by an indirect method in the form of an exception or reservation.
While each part of the exception now before us, when considered separately, fails to express any definite, valid, exception or reservation, when considered as a whole it becomes intelligible. The owner may convey any part of real estate. He may convey some particular deposit or stratum and retain the surface, or he may convey a part or all of the mineral strata or deposits and retain the surface. Such strata or deposits are land. In this deed the use of the surface is expressly reserved for mining operations. If it was the purpose to convey title to the surface, there was no reason for reserving the use of the surface; hence title to the surface passed to the grantee. The subject of coal and iron was referred to for some purpose. It
We have, then, a grant of the land with the exception of the coal and iron, with the right, in the nature of a reservation, to enter upon the premises for the purpose of exploring and mining the minerals excepted. Farrell v. Howard, 52 Minn. 76, 53 N. W. 801; Sanborn v. City of Minneapolis, 35 Minn. 314, 29 N. W. 126; Knight v. Indiana, 47 Ind. 105, 17 Am. Rep. 692; Caldwell v. Copeland, 37 Pa. St. 427, 78 Am. Dec. 436; Kincaid v. McGowan, 88 Ky. 91, 4 S. W. 802, 9 Ky. Law Rep. 987, 13 L.R.A. 289; 13 Cyc. pp. 672-678.
Affirmed.