| Mass. | Sep 15, 1873
The plaintiff’s title to the ores and minerals in question depends upon the point fixed as a starting point in the description given in the deeds under which it claims. That point is described as the “ centre oí the vein of iron ore ” on the southerly side of the lot. There was much controversy at the trial as to the existence of any such vein, and as to its true character and extent. Under the instructions given, the jury must have found either (1,) that there was in fact such a vein of iron ore crossing the line at the point claimed by the plaintiff and answering the demands of the deed; or, (2,) if there were more veins than one, that this vein was the one shown by the evidence to have been intended by the parties; or, (3,) if there was no vein of iron ore, then that there was either a line of rocks agreed on as marking the course of a supposed vein, or a vein of other mineral supposed to be iron ore, which was the one intended by the parties and called iron ore in the deed.
It is not shown that the propositions submitted to the jury were not well adapted to, and sufficient to meet the different aspects of the case, or that there was not evidence enough to warrant a finding for the plaintiff on one or more of them. The instructions asked for, so far as they differ from the instructions given, were properly refused.
In the evidence used at the trial, there is no invasion of the rule that paroi evidence is not admissible to control the effect of the deed, and that conveyances of land can only be in writing. For the purpose of locating land conveyed by metes and bounds, resort must always be had to extrinsic evidence; and when uncertainty or ambiguity arises in the application of the description to the subject matter of the conveyance, evidence of all the facts and circumstances of the transaction will be received for the purpose of ascertaining the real intention of the parties. The sense in which the parties themselves used the ambiguous terms may be ascertained from their declared intention. Bounds and monuments, which prove to have been indistinctly or inaccurately set out in the deed, may be established by proof that they were recognized as such by the parties. It is only when the terms of the deed as applied to the land conveyed create nc ambiguity, that
It was further objected that the plaintiff’s property in the ores and minerals vested only at the expiration of a year after notice given of an intention to dig. This is not the true construction of the deed. The original owner of the entire estate conveyed to the grantee named, his heirs and assigns, all the iron ore, metals and minerals in and upon the tract described, and in the same deed granted the right to enter and dig upon the described tract, with rights of way, water privileges and other easements required in the preparation and carrying away of the ores and minerals granted; with a further stipulation providing for one year’s notice before any digging should commence. This is plainly a grant of an estate in the mines and minerals.
It is well settled that such an estate of freehold may be separated from the general ownership of the soil, by an exception in the nature of a reservation out of an estate granted, or by a direct grant. When so separated, it becomes a distinct estate with all the incidents of a fee. It is sometimes difficult to ascertain from the terms used whether a present estate in the mine is created, or only an incorporeal right, in the nature of an easement or profit á prendre. There is no such difficulty here. A present estate in the ore, metals and minerals, to the extent of the deposit in and upon the land described, is granted in fee and carved out of the general owner’s estate. The stipulation as to notice has reference to the enjoyment of those accessorial rights thought necessary or convenient in order to render available the estate granted. It does not prevent the estate from vesting so as to give possession and a right of action against a mere trespasser to recover the value of ores or minerals taken away. Adam v. Briggs Iron Co. 7 Cush. 361, 367. White v. Foster, 102 Mass. 375" court="Mass." date_filed="1869-10-15" href="https://app.midpage.ai/document/white-v-foster-6415794?utm_source=webapp" opinion_id="6415794">102 Mass. 375. Bainbridge on Mines, (1st ed.) 162.
Exceptions overruled.