25 P. 423 | Cal. | 1890
This is an action of ejectment. The common grantors of the plaintiff and defendant were the owners of a large tract of land, including the land in controversy in this action. They subdivided the land, and sold it in several tracts. One of these tracts, being the one now in litigation, was conveyed to the plaintiff. The deed conveying the land contained this reservation or exception: ‘ ‘ Excepting and reserving to the parties of the first part, and their servants, agents, and assigns, the exclusive right to all oils, petroleum,
The court below found the interests in the land in the plaintiff and defendant, as above stated, and, among other things, found “that the plaintiff in this action has been, since said twenty-third day of November, 1882, continuously, to the present time, in the possession and enjoyment of the estate so conveyed to him by the said Carpentier and Steinbach, but has not held, occupied, or enjoyed any part or portion of the excepted estate, reservations, rights, or privileges excepted and reserved by his deed of that date, and the defendant has never ousted or ejected plaintiff from any portion of his said estate, and the defendant does not now withhold the possession thereof from the plaintiff. That thereafter, and in the month of May, 1883, this defendant entered upon said land and premises, as hereinabove, and in said amended complaint, described, and took possession and the actual occupation of all of its separate estate therein, and exercised and enjoyed the entire and exclusive use of, in, and to said excepted estate and reservations, rights, and privileges, and that said defendant has continuously, from said date to the present time, so exclusively occupied, used, enjoyed, and controlled said excepted estate, and said reservations, rights, and privileges. That the entry of the defendant in this action upon said described tract of land was under and by virtue of said instrument in writing, made by the said Steinbach and Carpentier to the said Whaley, by which the said excepted estate and interest in said tract of land, and the reservations, rights, and privileges in, over, and upon the same were sold and conveyed to the said Whaley, and under and by virtue of the
Counsel on both sides discuss in their briefs, at great length, whether the clause in the deeds above referred to, and set out, was a reservation, or an exception; but we think it is entirely immaterial to this controversy whether it was one or the other. The same may be said of the controversy in the briefs, as to whether the interest of the defendant was a corporeal hereditament, or estate in the land, or a mere incorporeal hereditament or easement. As we construe the deed to the plaintiff, it conveyed to him the fee simple title to the land, subject to the right of the grantors and the defendants, as their successors in interest, to enter upon the land, and occupy it for the purposes mentioned in the deed. For those purposes, and none other, the defendant was entitled to the possession of the land, or so much thereof as was necessary for such purposes, and for such a length of time as it was necessary for-it to occupy it for such purposes, and no longer. It makes no difference, therefore, whether its interest in the land constituted a title to a part of the land itself or not. If it did, it was only entitled to go upon the land for the purpose of severing its part of the land from that of the plaintiff, and removing it therefrom. It had no right to enter upon and hold its part of the land, where situated, to the exclusion of the plaintiff. The plaintiff was entitled, under his deed, to the possession of the surface of the land. The defendant was entitled to take possession of and occupy the plaintiff’s land, for the purpose of extracting therefrom the mineral substances contained therein, if any, to explore and excavate the lands, for the purpose of ascertaining whether it contained such substances or not, and, if found, to erect the necessary buildings and machinery, put down pipes, and to make and use such roads as were necessary to remove the oils or other substances from the land. The deed also gives the defendant the right of way for a road, or roads, over and across the premises, for the use of tenants or vendees of ad
It will be observed that the defendant alleged in its answer, and the court found, that it went into possession of the land, and began, in good faith, to exercise notorious acts of ownership over the same, and at a great expense began the exploration for, and development of, said oil interests, and the erection of costly machinery, derricks, rigs, buildings, storage-tanks, and pipe-lines upon said premises, and that it has continued in good faith the progress thereof, and the development of said territory for said oils. This allegation in the answer is defective, in not alleging directly that the entry of the defendant, and other acts done, were for the purpose of developing and extracting oil from this land. It seems, however, to have been treated as such an allegation at the trial, and found upon as such by the court. It is insisted by the appellant that the finding of the court that the defendant was in possession for the purpose of developing or extracting oil from the land in controversy is not sustained by the evidence, and that the evidence shows, beyond any controversy, that the buildings placed upon the plaintiff’s lands, and the pipes put down, and roads made and used thereon, were placed thereon and used for the sole purpose of extracting and removing oil from other and different lands, and that the evidence shows that no attempt had ever been made by the defendant to explore the plaintiff’s land for oil, or other substances mentioned in the reservation or exception, and that, in fact, the evidence shows that no such substances existed in or upon this land. We have examined the evidence carefully, and find the appellant to be right in this contention. The evidence not only fails to show that the respondent’s possession was taken for the purpose of developing and extracting oils or other substances from the appellant’s land; but the respondent’s own testimony shows affirmatively and conclusively that it took possession, and constructed buildings,
The respondent attempts to justify the decision of the court below on the ground that the plaintiff’s cause of action was barred by a former judgment. But we are quite clear that the questions adjudicated and determined in the former action, and the one now before us, are not the same. It appears from the pleadings in the former action that the appellant had, prior to the execution of the deed to him, leased from the owners of the entire tract above mentioned the right to take oil and other substances from the same, and the lease gave him
Again, it is contended by the respondent that the appellant’s cause of action was barred by its adverse possession. But this position is effectually answered by the findings of the
As to the claim that the plaintiff is estopped by deed to deny the defendant’s right to possession, we find that there is nothing in the deed inconsistent with the plaintiff’s claim in the action. The deed was by the appellant and one Hill, and granted, bargained, sold, assigned, and transferred to the respondent all of their right, title, and interest in and to “all the buildings, tanks, derricks, pipes, pipe-lines, fixtures, and all other personal property whatsoever that now is, or are, or ever hereafter has or have been, on or upon any portion of the rancho, known as the ‘Ex-Mission of San Buenaventura,’ in the county of Ventura, state of California.”
We concur: Sharpstein, J.; McFarland, J.; De Haven, J.; Paterson, J.