95 Cal. 92 | Cal. | 1892
Lead Opinion
On December 20, 1881, Carpentier and Steinbach were the owners in fee of a tract of land consisting of about twenty thousand acres, in Ventura County, and known as the Ex-Mission rancho. On that day they entered into a contract of lease with the plain-tiff herein, by the terms of which plaintiff was to have the possession of the land, together with the buildings' and improvements thereon, and the right to use ail necessary land for the purpose of digging, boring for, developing, and taking oils, petroleum, asphaltum and other kindred substances, and the right of way over the lands of the ranch for roads, where necessary' for the purpose of transporting substances to market. The
The first matter presented for consideration is the question as to the effect of these conveyances and notices. It is claimed by respondent, that, “ on the twenty-fourth day of October, 1882, and before the deed to Dietz of November 23, 1882, the Mission Transfer Company had acquired, through the assignment of the contract with Whaley, the general right over the entire tract to the mineral oils and asphaltum in the ground, to the right of entry upon the whole tract to mine and explore for oils and asphaltum, with the right of way over every part of it for the transportation of the oils, and every other right which was necessary to the enjoyment of the interest which they had acquired. They therefore had this right before the deed to Dietz was made, and whatever estate or interest in the particular four-hundred-acre tract he obtained by that deed was subject to the rights of the Mission Transfer Company, under the agreement of Carpentier and Steinbach with Whaley.” We cannot agree with respondent in this contention. Under his agreement with Carpentier and Steinbach, and the notice which they gave him, Dietz had the right to purchase the property at any time before November 25, 1882. 'The thirty days’ notice was served on him on October 25, 1882. This gave him to and including November 24th in which to exercise his option. While he was thus in possession of the land under his lease, and entitled to purchase, the owners of the land, by a deed of grant, bargain, and sale, conveyed a part of the
Our conclusion, therefore, on this branch of the case is, that the defendant acquired. no right by virtue of its purchase from Carpentier and Steinbach to use the land in controversy for the purpose of operating an oil plant, in developing, transporting, and storing oil found on other portions of the rancho. Its right in this regard is acquired solely through the exceptions and reservations found in the deed to plaintiff, and the conveyance to it by Carpentier and Steinbach. It has the right to go upon the land in controversy under those exceptions and reservations for the purposes therein named, but its operations under the terms of the deed must be confined to the four-hundred-acre tract. The plaintiff’s grant conveyed to him the absolute title to the four-hundred-acre tract, with the exception of the oil, asphaltum, and other kindred mineral substances therein, and the right reserved to erect machinery, sink wells, etc., on said tract
It is contended by appellant that the exceptions and reservations in the deed to Dietz do not give the defendant the right to go upon the four-hundred-acre tract for
The defendant pleaded in bar of plaintiff’s cause of action a judgment entered in the superior court of the city and county of San Francisco, on June 30, 1884, in an action between Steinbach, Carpentier, and the Mission Transfer Company, plaintiffs, and Dietz, Hill, and Adams, defendants. The plaintiffs in that action alleged all the facts we have stated above in relation to the transactions between the various parties, excepting the fact of the conveyance from Carpentier and Steinbach to Dietz, and claimed that Dietz had lost all rights under his lease from Carpentier and Steinbach by failure to purchase within the thirty days following the notice given, and by virtue of the provisions of the lease requiring him to quit and deliver possession on July 1, 1883, but nevertheless he was unlawfully holding, and claiming the right to hold, possession oh the land for the purpose of extracting oils, etc., and although demand had been made he had refused to permit the respondent to enter upon the land for the purpose of exploring, developing, or extracting the oil therefrom. In his answer to this claim, Dietz denied that he had lost his rights under the lease, and insisted that he was still entitled to retain possession of the lands for the purposes named therein. -The court’s findings of fact were confined to
On May 29, 1886, Dietz and Hill, by a deed of grant,
In view of what has just been said, it is unnecessary for us to consider the question of title by adverse possession. The deed referred to conveyed the plant as it existed on the four-hundred-acre tract in 1886, and it is not claimed that any right by adverse possession to any additional property has been acquired since that time. The evidence shows that the plant'which defendant now claims the right to operate is substantially the same as it was on May 29, 18S6.
Our conclusions upon the whole case are: 1. That the conveyance from Carpentier and Steinbach to defendant
Upon the evidence the court properly found that plaintiff could not maintain ejectment; but the decree awards to the defendant greater rights and privileges than it is entitled to. As some of the findings, however, are not warranted by the evidence, we could not, without making new findings, direct a modification of the judgment.
The judgment and order are reversed.
McFarland, J., Sharpstein, J., and Garoutte, J., concurred.
Concurrence Opinion
I concur in reversing the order and judgment appealed from, and I also concur in the opinion of Mr. Justice Paterson, except in that portion thereof wherein he holds that the deed to the re
. The use, in the instrument, of the words “ grant, bargain, and sell,” does not vary the construction to be given to it. These terms are expressly limited therein to the “ interest ” of the grantors in the property described, and the other terms “ transfer and set over,” which are used therein instead of the word “ convey,” have reference exclusively to personalty.
It is held that a conveyance of a “ mill ” or a “ wharf” or a “well ” or a “ bridge” will, without the use of any term expressly descriptive of real estate, pass the land connected therewith, upon the principle that in such a case the land is an essential element' of the thing described, and passes by the use of a term which is sufficiently comprehensive to include it. So, too, when a conveyance is made of a “ dwelling-house ” or a “ barn,” and it is shown that the parties to the transaction were negotiating in reference to the place, including the land on which the structure was situated, it is held that the land will pass. Such construction rests upon the principle that when land is occupied or improved by a structure designed for a particular purpose, which comprehends a practical enjoyment and use of the land, and in which the land is of subordinate consideration to that of the purpose, a term which is descriptive of the purpose to which the land is appropriated will be as apt for a conveyance of the land as would a description of the land itself. (Johnson v. Rayner, 6 Gray, 110.)
There is nothing, however, in the term “building,” or in any of the terms used in the present instrument, which can be said to be descriptive of any purpose or
It is not shown whether the pipe lines were upon the ground or imbedded beneath its surface; nor whether or to what extent they were used as conduits for oil from without the four-hundred-acre tract. If these pipe lines were part of a continuous conduit, or were imbedded beneáth the surface of the ground, the effect of their conveyance would be to create an easement in the ground for their use, and to authorize their continuance in the same position for such use, with the right to the defendant to enter upon the land for necessary repairs, but the transfer to it of the other property named in the instrument gave to it no right to occupy the land for its use, and the plaintiff had the right to maintain this action
Concurrence Opinion
I concur in the foregoing opinion of Mr. Justice Harrison,