139 F. 305 | 9th Cir. | 1905
delivered the opinion of the court, after stating the case as above.
The rights of the parties in the present litigation depend on the construction of the lease and the release executed on January 17, 1889. Those instruments, as was also the deed of the same date, were prepared by the attorney of the Helena Water Company. Before they were executed there was inserted by the said company at its own instance, by interlineation, in the lease the following clause: “Also such other land as the party of the first part now owns on the island in the Missouri River near the above-mentioned property,” and in the release the following: “Also the land on the island in the Missouri River near said above-mentioned property.” What land was meant by these terms in these instruments is, as we shall presently see, the subject of much controversy, both in the testimony and in the argument of counsel. In the lease the appellee leases to the appellants for the term of 20 years all of the lands that had just been conveyed to it by the latter, the intention evidently being to permit the appellants to use for pasturage or hay cutting in connection with their cattle ranch such portions of the same as would not be flooded by the waters of the dam. In that instrument the right of the appellee to flood the leased lands is expressly reserved. The appellee contends, and the trial court so held, that the words of the reservation, together with the answering covenant of the lessees and the terms of the release, constitute a contract between the parties by which the appellee was given the right to raise its dam to any height, and that the flooding of other lands which the appellants owned was a necessary incident to such right was in the contemplation of the parties, and passed to the appellee by those instruments.
The first question, then, is, what was reserved to the Helena Water Company by the lease? The extent of that reservation, whatever it is, is not enlarged by the answering covenant of the lessees in the lease. That covenant recognizes the reservation. It repeats its language word for word, with the exception of the final words, “without claim for damage.” Those words are unimportant, and are merely surplusage. They mean no more than that the lessor in the lease may exercise the rights reserved therein without claim for damage on the part of the lessees. A reservation has been defined to be an interest retained by a grantor out of the body of the thing granted. Marshall v. Trumbull, 28 Conn. 183, 73 Am. Dec. 667. Another definition is, “A clause in a deed whereby the grantor reserves some new thing to himself issuing out of the thing granted and not in esse before.” 4 Kent’s Com. 468. In Winston v. Johnson, 42 Minn. 398, 45 N. W. 958, the court defined a reservation as “something merely created or reserved out of the thing granted that was not in existence before.” In Craig v. Wells, 11 N. Y. 315, the court said: “A reservation is always something which is taken back out of that which is clearly granted.” In Baratarla v. Ott (Miss.) 37 South. 121, the court said: “A reservation in a deed must not only be, as hereinbefore pointed out, of something which would otherwise, by operation of the terms of the
The first step of the Helena Water Company in the proceedings which led up to the execution of these instruments was its condemnation suit, whereby it sought to condemn the lower portion of the appellants’ ranch. Up to the time of that suit evidently the water company expected to flood no more of the appellants’ land than that described in its complaint therein. The judgment in that suit gave it no right to flood any other lands. Afterward, finding that it needed to flood still other lands of the appellants, it bought such other lands, together with the condemned lands, all at the price per acre that had been fixed by the verdict of the jury in the condemnation suit. The conveyance then made, if it had stood alone, would have measured the full extent of the appellee’s right to flood the lands of the appellants. But the settlement contemplated other things. The appellants wished to obtain a lease on the deeded lands, so that they might avail themselves of the hay and pasture lands thereof on such portions as might not be flooded, and the
It is contended' that, if this construction of the instrument be adopted, no consideration is left to be apportioned for the lease which was given to the appellants. It is true that the consideration in both the lease and release is therein said to be $1, and that the consideration expressed in the conveyance amounts to $35 per acre for all the land conveyed. But the fact must not be lost sight of that in the condemnation proceedings $2,700 had been awarded to the appellants as damages for the severance of the lands condemned from their other lands, and that award stood in the form of a judgment against the water company at the time when the instruments were executed. While the conveyance to the water company of those other lands so severed may be said to have extinguished that particular claim for damages, there can be no question but that still further claims of the same nature might arise for the severance of the lands conveyed from those still reserved by the appellants, and on which are situated their improvements. In addition to this, it appears that pending the condemnation suit there had been flooding of appellants’ lands above the lands condemned, which flooding formed the basis of a claim of damages. The- relinquishment of those claims for damages may well have been taken into the reckoning, and have been an adequate consideration both for the lease and the release. The very fact that the lease was taken, as it was, for a period of 20 years, shows that it was within the contemplation of both the parties thereto that a considerable portion of the land conveyed to the water company was to be available to the appellants for purposes of pasture or for cutting hay, and it cannot be doubted that the right to use those lands so secured to the appellants by the lease was supposed by the parties thereto to be a valuable right. When the words of a grant are ambiguous, the courts will also consider the acts done under it
If we assume that both parties testified truly as to their understanding concerning the land on the island, it is evident that they had in contemplation not the same, but different, lands. However that may be, we are convinced, upon a consideration of the whole of the evidence, that the minds of the contracting parties never met upon the proposition that the Helena Water Company was to exercise the right to flood the whole of the appellants’ ranch, and never expressed such an understanding in their contracts. The papers had been prepared for execution several days before they were
The decree will be reversed, and the cause remanded for further proceedings not inconsistent with this view of the contract.