McLaren Gold Mines Co. v. Morton

382

Copper Min. Co., 112 418, Mont. 118 (2d) 148; Pac. ex State rel. Public Service Brannon, 283, Commission v. 200, Mont. 202, Pac. 67 A. L. R. 1020. legislative

Tbe inspector declaration that the was to receive inspection for express fee clear, does not definite and cer- tain inspector permitted intention that such was to be to retain necessary fee his own benefit that is overcome presumption that such fees are levied and collected for bene- fit sovereign. The relator’s contention that the fees because expressly are state, directed to be forwarded to the is not he keep entitled to them for his own is benefit not accord with person established receiving rule law that a imposed fees by sovereign authority only entitled retain them for his express own benefit legislative when there is an assertion right to do so. judgment is affirmed.

MR. CHIEF JUSTICE ADAIR and ASSOCIATE JUS- ANGSTMAN, TICES BOTTOMLY, FREEBOURN and concur. McLaren CO., GOLD MORTON, MINES Appellant, v. Respondent.

et al., No. 8983. 21, Submitted October 1950. Decided November 1950. (2d) Pac. Mr. Ealph Anderson, J. Mr. G. Messrs. Toomey, Edmond Toomey, Wagner, Helena, McFarland and appellant. for Jones,

Mr. Ed G. Mr. Ammerman, Earl C. Livingston, Mr. C. Jones, W. Hardin, respondents. for Mr. argued orally. Anderson and Mr. Jones ME. CHIEF JUSTICE ADAIE: specific This is performance resulting a suit for for in decree plaintiff defendants appeals. grounded

The suit is reading: a contract “LEASE AND OPTION TO PUECHASE agreement, “This day made and entered into this 24th February, -1934,by and Morton, single man, between Eobert L. of Clarion, County Wright, Iowa, hereinafter called State of Lessor; Dayton, Montgomery County, and'Walter McLaren of Ohio, hereinafter called Lessee: Lessor,

“Witnesseth that said and in consideration ($1) One paid, receipt Dollar him hand here- of which is acknowledged, and consideration of and the covenants agreements kept said and hereinafter contained to be Lessee performed, hereby lease, does let and demise unto the said Lessee following quartz mining premises, described situated Montana, New World Mining District, County Park, State of to-wit: Mining unpatented

“That Lode Claim ‘Melissa’ certain named mining district, together ap- situated the aforesaid with the rights, rights and water timber purtenances, water and timber every property belonging and all kind and nature or thereto therewith, with right mine, connected to extract remove premises ore from prospect metals the leased and to and/or therein, ore minerals thereon and con- the terms and and/or agrees And said Lessor ditions hereinafter stated. covenants and peace- quiet that said with the said Lessee Lessee shall have possession premises during leased continuance of able of said Option this to Lease and Purchase. hold the same unto said and to Lessee until

“To have ground voluntarily sur- is- or until said Lessee shall worked out premises agreement, unless sooner render the said leased and this through any agreement forfeited or or determined violation of covenant Lessee made. hereinafter contained the said Lessee, prem- “The said in consideration of said of said lease hereby ises does follows: covenant to and with said Lessor as “1. possession premises To enter said take hold Option under same this Lease and to Purchase. To

“2. work the same a miner-like manner so as to take greatest out possible equip- amount of ore with the crew and ment used for the work.

“3. To agent allow said Lessor or inspect his authorized premises being any and the work done at time which will not interfere with being the work then on. carried pay royalty per (10

“4. said %) To Lessor a of ten cent shipped net mill or smelter returns from prem- ore from said ises, royalty payments all such deducted from herein- purchase after price property. mentioned for said “And in acceptance foregoing consideration expenditures and the to be made thereunder faithful keeping of thereof, the covenants the said Lessee shall have premises the said demised for the sum Four Thousand ($4,000) payable Dollars as follows: ($2,000)

“Two Thousand Dollars on or Year after before One fully premises said Lessor clears title said so that fur- he can good nish and sufficient title clear from all incumbrances ad- verse claims and Two Thousands Dollars on Year or before One payment after said first due, of Two thousand Dollars becomes agreed it is money understood paid amounts of royalties hereunder shall be payment deducted to be- come due. agreed by

“It is understood and and parties between the in Option hereto that the event this Lease and to Purchase is or determined for reason, forfeited said Lessee shall have 386 machinery equipment

the to remove and all and which may premises. he have installed on said whereof, parties

“In the hereto have hereunto set their witness year day hands and seals the and first hereinbefore written. Morton,

“Robert L. Ross, By Dan G. Attorney in fact.” Ross, acknowledged by Dan G. Febru- above contract was ary 24,1934, by McLaren, 3, 1934, and, Walter lat- March on the date, duly ter filed for and recorded in the record office county county; clerk and recorder of Park Montana.

Immediately upon contract, execution above possession property named lessee entered into demised mining operations prior and commenced work thereon and dug mining a tunnel was described claim feet width, height approximately length. feet feet 5% July plaintiff in the 6, 1934, Robert L. Morton as commenced county, quiet title Montana, of Park an action to district court property described in the above contract but such action to the in- pending undetermined time of the trial of the was at the premises been cleared. stant suit and title to said has not April 10, McLaren, lessee, and, sold 1935, Walter writ- Company, ing, assigned plaintiff, McLaren Gold Mines corporation, right, title and Delaware all of his interest record assignment Such thereafter filed for contract. was above county duly recorded in the office of the clerk and recorder county, of Park Montana.

Upon assignment, plaintiff entered the execution expended possession property the demised and has since into exploring, money and much work in considerable sums of done property, in en- developing which includes work drilling digging diamond gineering, geology, mapping, tunnels. of shafts and 1938, plaintiff digging commenced a second tun- year

In during described claim and this work was continued on the nel 387 years 1939 trial the tunnel was the At the time of the 1,220 being feet in 550 feet on the de- length, the first thereof mining were ex- mised claim from which tunnel raises two cavated, feet, 220 400 being the feet the first and the second from portal of the 40 and the second tunnel. The first raise was feet height. Approximately portal 70 400 the 4x5 feet feet from depth foot shaft was sunk in floor to a the of the second tunnel 20 Approximately portal feet. 300 from a crosscut feet was extending 20 pros- made on either tunnel. In feet side of the pecting for property, plaintiff ore on diamond drilled seven varying depth drill holes feet to feet and did drilling crosscuts, core aggregating feet. The costs 753% raises and shaft were not available at trial but exclusive outlays, plaintiff expended of such approximately $13,000.00 by for the work done it mining described claim.

While mineral bearing encountered, exploration rock was development sufficiently produced high grade work no ores commercial value. plaintiff predecessor its have been in interest complete, undisputed peaceable possession of the described mining continuously claim February 24, 1934, during since they required which time have done the annual assessment work fully and otherwise complied Congress with the several Acts of suspending county such work and have filed the office of the clerk and recorder county, Montana, proper of Park affidavits and notices of intention to continue to the claim. hold

The trial clearly by court found and the evidence shows that explorations by

reason of plaintiff upon made the de mised claim find ores of commercial value and the by doing it plaintiff per of the annual work, assessment has formed all obligations imposed it virtue of the contract. assignment

After the plaintiff of the contract to and while it operating property, Robert L. died was Morton at intestate Iowa, home in Clarion, his thereafter estate in Park ap- by an administrator Montana, administered

county, was county. During the course of such pointed the district court and heir at law administration, Roy Morton, A. son of such Morton Grace and the defendant Morton, Robert L. died testate of A. the will duly qualified as executrix of appointed and was 3, 1946, on December Roy Morton, deceased, and thereafter court, property described district decree of the above distributed to defendant purchase was lease and Roy Morton, A. de- will of Morton as executrix of the last Grace Washington sojourning in state of executrix, ceased. The Montana, appointed being state of a nonresident him attorney fact, empowering in her defendant T. C. White as legal proceedings law suits any and all to institute or defend party. in interested or which she was a Morton, sought to plaintiff, L. Following demise of Robert premises for the purchase the demised exercise “the pro- ($4,000)” expressly Thousand Dollars as is of Four sum accept administrator declined to in the contract but the vided convey property demised $4,000 or to the consideration probate proceeding whereupon plaintiff filed in the plaintiff county, petition for an of Park a pending the district court contract, petition performance which specific order for the August 13, ordered dismissed without court com- expressly granting plaintiff leave to prejudice but therein mence this action. expressly requirement title

Plaintiff waived quieted by the lessor. jury. a sitting without tried to the court cause was

The entered its 24, 1947, the trial court made and September On findings are in of law. fact and conclusions findings of of law the court second conclusion favor but its plaintiff’s attorney 3, 1933, October executed that a concluded attorney in fact Dan G. Ross as appointing L. Morton Robert fact, Dan G. authority upon not confer “does ’’ mining claim. Where- option sale on said grant an Ross to judgment fore the trial from which court entered for defendants plaintiff appealed. has

The lease and was executed virtue of following power of attorney, viz: “POWER OF ATTORNEY “Know presents, I, Morton, all men these That Robert L. single man, Clarion, County Wright, Iowa, State of do hereby appoint Dan Ross, County, Montana, G. Park State of my attorney me, my name, place stead, to bar- gain, and agree for, purchase, transact rents, receive and take accept possession hereditaments and the seizin and of all lands and all deeds and other assurances and lease, let, demise, bar- gain, sell, release, convey, mortgage hypothecate lands, tene- ments and hereditaments such terms and conditions and under such covenants as he shall think fit and also for me and in my name, place and my stead and lease, as act and locate, deed to sell and things do all other necessary in connection with and in compliance with the laws of the United States Government and Montana, the State of in locating and perfecting title to mines preserve, manage, dispose of, lease, sell or mortgage, hypothecate or otherwise transfer and all of mines, said well as other may mines that I now be the of or owner have an in interest in the Montana, of including State to commence suit in prosecute court and through the same judgment my attorney said necessary deems in order to protect my interests, and sites, townsites, also to locate mill mining claims, rights and water and all necessary legal steps take proceedings accept manage, work, the same and sell, mort- gage, dispose lease or otherwise of and all of them to our best advantage, giving granting my attorney, unto said Dan Ross, power G. full and authority perform to do and all and every thing act and whatsoever requisite, necessary, proper or be done in premises, and about fully as to all intents purposes might I as or do, could if personally present, hereby

ratifying confirming my attorney all that shall said law- fully do cause to be done virtue hereof.

“In whereof, witness I my have hereunto hand and seal set day October, D., this 3rd A. ” (Seal) “Robert L. Morton (Acimowledged 3, 1933.) October power The attorney duly was filed for record and above . recorded in county the office of the clerk and Park recorder of county, Montana, option on the same date the lease and to Mc- Laren was filed for record. presented: question

The power attorney sufficiently Is above broad to authorize the execution of the the “Melissa” unpatented quartz mining claim? lode power attorney nothing an in

A is more than instrument

writing authorizing agent. per act as one’s The another to attorney holding “attorney is known as an son a distinguishing him an thus at law. fact” interpretation governing The of written instruments rules attorney. generally govern powers construction parties First and foremost the intention of the as it existed at granted powers were is be ascertained. the time the Next and ascertained, given when that intention is to be effect. The inten writing alone, possible. is ascertained from the if The tion to be ordinary writing words used are to be understood their according popular sense, legal rather than to their strict sense, meaning, parties unless used in a technical or unless by usage, special meaning given to them in which ease the interpreted latter followed. Technical words are to must be usually profession persons understood or business.to they clearly relate, which unless used a different sense. writing together, give whole of the is to be taken so as to effect to every reasonably practicable, part, helping if each clause to in terpret the other. strictly powers granted pursued by must be

While the

'39-1 agent, yet language permits, power where the must be carry construed so as to purposes of appointment. out the Holladay v.-Daily, 19 606, Wall. Ed. 187. Where the L. words ambiguous used are they most themselves are to be taken strictly against principal agent dealings and the in his with a person may third principal bind usage his in accordance with by any construction of ambiguous words that reasonable grant powers for the of away very is not be frittered nice and metaphysical general, in distinctions when tenor of the under, done, strument is in favor power of what was and when principal reaped has Roy Beard, the benefit it. Le v. of How. 12 L. Ed. A interpretation strained powers granted given. should never ...... power attorney

The of the lease and have to mining do with in Montana, State,” the “Treasure whose flag official state and seal both bear the state motto T “Oro Plata” or “Gold and produces Silver.” This state more than 50 per cent the nation’s ranks copper output, it second production silver produces and it gold, also much lead, man- ganese petroleum ore, gas. and natural In state, and within county Park, many are mines; claims and some patented, many unpatented, quartz claims, some placer lode other claims. executed, power attorney

The ap- Robert L. Morton, pointing attorney Dan G. Ross fact, as his manifests an inten- part tion residing on the of Morton operat- without the but state ing through agent Ross, residing in county, Montana, of Park relying upon agent’s such knowledge experience, through such agent, acquiring, owning, protecting, financing, working, managing, developing disposing mines mining property located in Montana. attorney expressly grants to Ross the authority:

in fact . * * * locate, lease, “to sell and all things necessary do in locat- ing perfecting title to mines and dispose mortgage, lease preserve, manage, of,

“to sell or any mines, hypothecate or said as otherwise transfer of well other principal mines then owned or which he ‘an of Montana’ and has interest the state also sites, townsites, mining rights “to locate mill claims and water * * * sell, necessary legal steps manage, work, and take all to dispose them mortgage, and all to lease otherwise of of our advantage.” (Emphasis supplied.) best authority him the

Pursuant to the so conferred principal, his fact, in the name and for and on behalf of giving Walter McLaren entered into the written contract with unpatented option on “Melissa” to the latter a mining quartz lode claim. It mere- nothing unusual in the contract. is

There was ordinary purchase an to such ly lease with a common mining customarily engaged in the been used those as has days territorial on down business in this state from the earliest present. to the 2123-2127, (3rd Ed.), 859, pp. Lindley

In 3 Mines section on it is said: mining in- connected with

“There is no class of contracts options to dustry profession familiar than more executory Unlike working bonds, or contracts sale. purchase, a be de- estate, the value of mine cannot of real other classes investiga- Expensive superficial observation. mere termined underground geo- measurements, examination of tions, involving invariably precede sampling the con- logical conditions, and mining property. In order purchase or sale of summation of a inves- making requisite justify intending purchaser in an invariably expense, incurring attendant he tigations and by which he secures the the owner some contract exacts ex- property in the event the purchasing first privilege this, army large a satisfactory. In addition to proves amination professions, ranks of all from the recruited ‘promoters,’ regions, through seek- occupations, swarm trades, mining properties of privileges ‘options’ ing exclusive moneyed purpose marketing for them all classes to a class given rise centers of the world. These conditions have signed by variety, mere letter of contracts infinite in from a owner, paid if agreeing price a certain mine accept working bond, a which con- time, within certain formidable exploitation templates entry possession into and extensive prove privilege the value of mine before must object them, however, be exercised. of all of is to The ultimate given privilege purchasing price, secure the exclusive at a ** * specified within a time. * « “* the rule mutuality that contracts which do not involve specifically cannot be enforced is the holder modified favor of equitable of this class of remedy, contracts. He is afforded this fully fairly he performs, where perform, or offers to the terms of his the stipulated. contract within time very purpose optional

“The of an contract of this nature is to extinguish mutuality right this of parties and vest one the privilege determining whether the contract shall be vital- buy ized and An option land, enforced. to or sell more than form contract, contemplates other specific performance a terms; right and it is specifically its to have them enforced imparts that to them their usefulness and value.” Lindley (3rd Again Mines Ed.), on section pp: at 2134- 2138, states: given

“In a always tract of land it is a matter of doubt to what extent, may if any, paying mineral exist in quantities, very until development considerable work has been performed, which re- quires in large expenditure most capital. instances For this profitable reasons not here, and other to discuss a custom long ago supposed for the owner arose land grant mineral to a operator right enter mine land and search for mineral, and extract the form which contracting parties generally pretty adopted express agreement their was a ‘lease,’ purported which to entitle the occupy ‘lessee’ to such

part premises necessary carry mining as was operations, ‘use’ and extract the minerals there- to' the mine rights, In the so-called privileges from. return for or these per usually form of certain sum ‘lessor’ reserved ‘rent’ in the a seemed produced. ton on mineral to be This form of contract adapted protection parties, best mutual in view of to the of the uncertainty mineral, of the extent and value of the was in name a without doubt considered them in fact as * * * ‘lease.’ that already place land; mineral in is “We have seen that changed personal property, it is taken therefrom and into when destroyed. that been It is obvious real estate has to extent contemplate landlord and not the normal relation of tenant does tenant, and that such destruction destruction of estate plain so- properly equally called that the cannot ‘use.’ It is something than a return called ‘rent’ in a is more possession the contract property. for the and use of real While lease, sale, grant if it is in name a it amounts in fact to a lessee’s mineral, take all the it is a real estate —the sale of a fee in mineral so-called rent interest is and the lessor’s money for real estate. royalties principal, income, and are and not rents “Such respective ascertainment interests so treated in the must be ***(cid:127)'(cid:127)' and remaindermen. of life tenants grant mineral “Although the doctrine that a of all the lease, con- land, deed or so-called tract of whether described land, seem been mineral as does not to have veys an estate mining prop- applicable lease of passed upon-as to a specifically acts, States mineral we erty under the United acquired or held arise, gen- questions that when such to believe are constrained recognized applied herein set forth will be eral doctrine consequences. doctrine, That as we have its attendant with all land, place that mineral principles seen, is based it, dispose right and thus grant to extract land, estate, amounts to its sale as destroy as real its character per rent), payable quantum (or royalties and that so-ealled rather than money principal, taken, the mineral are nature of flow from the principles rent As these and income. why they should not such, no reason mineral land as we can see acquired from mineral land equal application to leases of be of any source.” unpatented mining requiring “Melissa” is an claim

doing such claim proof protect of annual labor and thereof statu- noneomplianee from with the asserting relocation one tory provisions governing mining property. such period years

For a February 1934, prop- from when the erty McLaren, February was leased to when suit this commenced, was Morton and reaped his successors in interest protection resulting performance benefits by plain- tiff requisite of the annual work filing on this claim and the proof thereof.

Within five giving months after the lease, of the Robert L. lessor, Morton the quiet commenced suit to muring title to the thereby evidencing claim an part intention on his comply with provision of the calling contract payment for the of one-half stipulated selling price “on year or before one after said fully Lessor clears premises,so title to said that he can furnish good and sufficient title clear from all encumbrance or adverse claims.” during

At no time the life of the principal, Morton, Robert L. attorney was the ever revoked. There is nothing in the attorney record to show that the any fact at time acted other- wise than for advantage the best interest and of his principal, principal any or that the at time questioned ever or authority of his in fact to enter into the lease and principal any contract or that the expressed at time ever or other- wise made manifest dissatisfaction with terms, provisions conditions option. lease and Notwithstanding the fact principal that the lived for some ten entering months after into the contract with McLaren there princi- is. no evidence whatever-in record before us that the pal any disapproved agent, Morton ever of his Dan G. act Ross. neglects principal promptly

It is settled that a who to disavow agent, by an act of his which the latter has transcended authority, it makes the act his he is to disavow bound own; knowledge. the first moment the fact comes his to Agency (2nd Ed.) page 175, In Mechem on sections at and it is said: conferring

“It must kept-in also be mind that one method of powers may may granting others to which the former appurtenant. some manner be deemed incidental or Thus authority agent necessarily is not to be deemed to be con- doing Every delegation fined to the of the main act authorized. power contrary it, by implication, carries with is de- unless the clared, naturally authority acts, to do all those incidental ordinarily case, reasonably and done such a which are neces- sary proper carry power and main con- to into effect the so * * * ferred. assumed, contrary declared, that

“It is also to be unless the authority in ac- principal intends that the shall be executed prevail with the customs which transactions of cordance sort; and the main will therefore be deemed to include the customarily authority all those incidental acts which are to do contrary agent place, such an at that time and unless the done ’’ agent persons with whom the deals. is made known to the * * * * * * granted dispose powers expressly sell or The “to '* * * all of said lease, or otherwise transfer and express powers of such “to locate mines” and the * restatement * * * * * * * * * * * * * * sell mining claims ’ ’ advantage our best dispose of of them to otherwise sufficiently authorized the in fact to enter clearly customary con- usual and lease with into the principal in' name of his and we and on behalf and tract for hold. so to the dis- is remanded judgment is and the cause reversed law conclusion of strike the court’s directions to

trict court with objections the introduc- II; disallow the designated as No. B, D A, exhibits C in evidence of defendants’ tion for re- defendants judgment plaintiff against enter prayed plaintiff’s complaint. lief as for ANGSTMAN, FREEBOURN, JUSTICES ASSOCIATE BOTTOMLY, METCALF and concur. Rehearing

On Petition ADAIR: MR. CHIEF JUSTICE are used in the “dispose the words of” twice

Inasmuch as attorney in and in same connec- power of the same sentence following preceding the tion, “sell” and word word —first lease,” “lease,” following “sell, mortgage, and next the words “dispose words “sell” it is evident that words of” only synonymous, “lease” conclusion there- are not and the “dispose interpreted must in a is that the words of” Compare Estate, 222, 220, In 59 Mont. broader sense. re Sattes’ 195 Pac. 1033. “sell;” “dispose” larger meaning

The word has a than sell being ing only disposing property. one of the methods of Munday Britton, App. 153, 504, v. 205 222 506. Mo. S. Com W. Cooney, 308, (2d) 261; Rider 23 Hill pare 295, 94 Mont. Pac. v. Sumner, 118,10 42, 132 33 L. 284. v. U. S. S. Ct. Ed. Supreme by Phelps

As said States Court of the United expression 25 Harris, 380, 101 U. Ed. 370, v. S. L. 855: “The dispose very broad, signifies ‘to of’ is than ‘to sell more Missionary Society Wadhams, Barb., 10 In Home v. American 597, “sufficiently Y., “dispose” word was declared to be N. meaning, every possible in its comprehensive, to include mode alienation, property.” ex rel. disposition of Also see State Commissioners, Wyo. 181, 50 v. Board Land 58 Pac. Cross 423, rehearing (2d) 516, 62 (2d) denied Pac. (2d) 913, 916, People Sidwell, (2d)

In 27 Cal. Pac. v. con- Sidwell and Davis delivered to one Moore a the defendants tract in writing whereby they agreed Moore, to set aside for per production cent of prospective of a well in consid- oil $5,000 eration of loan by gave a Moore for which defendants promissory their days per note for 90 6at and on the com- cent pletion apply of the permit well to for a to transfer interest. such In holding stipulated such transaction the per cent of “ production “disposed was ‘Dispose of” the court said: of’ means, among things, condition, other ‘to fix the employment, etc., of; assign to direct or for a use’ and ‘To transfer to also the control of else, selling; alienate; with; someone part relinquish; bargain away.’ (Webster’s ed.) Diet., New Int. 2d apparent It is 5 per that the cent interest production assigned specified well was agreement. use It was not transferred control of Moore, immediate but it bar- was gained away; i. e., $5,000 for an entire consideration of de- promissory their agreed per fendants issued note and that the cent, if it one, was ever transferred to was to be transferred ’’ to Moore.

inSo agreement the instant ease grant- while clause ing lessee the the demised property did not effect an yet immediate transfer of the title lessee it bargain evidences a if, made that within the time provided, manner pay lessee should stipulated elect to $4,000, consideration the title to the mining claim would be transferred to him. * * * express authority The granted to Ross “to sell or dis * * * * *#

pose of or otherwise transfer” prop the demised erty ample him bargain away clothed with and execute option agreement the lease and binding which is a valid and performance contract may compelled whereof decreed petition rehearing this action. is denied and remittitur will issue forthwith.

MR. ANGSTMAN, JUSTICES METCALF BOTTOMLY, concur.

Rehearing denied December

Case Details

Case Name: McLaren Gold Mines Co. v. Morton

Court Name: Montana Supreme Court

Date Published: Nov 21, 1950

Citation: 224 P.2d 975

Docket Number: 8983

Court Abbreviation: Mont.