123 Minn. 270 | Minn. | 1913
The instrument contains the further provisions that it is “the object and purpose of this lease that said lessee shall excavate and remove the earth from said lots to the grade of Superior avenue * * * shall pay said lessors for the earth so excavated the stipulated and agreed price of ten cents per cubic yard” and that “whenever earth, sand and gravel shall have been excavated in excess of amount paid for by above mentioned annual and monthly payments, such excess shall be measured and paid for in full at above named price of ten cents per cubic yard. It being the intention of the-parties hereto that the above mentioned $700 payment shall stand as a deposit and advance payment to be applied in payment for the last 7,000 cubic yards of earth removed under the terms of this, lease and as a guarantee for the full performance of said lessee’s covenants and agreements hereunder.” The instrument further pro
Some of these provisions are not ordinarily incident to the relation of landlord and tenant, but they are not inconsistent therewith. The parties to this instrument have indicated in the clearest possible manner an intention that the instrument shall be construed as a lease and as creating the relation of landlord and tenant. There is nothing in the nature of the instrument or its terms which forbids ■our giving effect to this intention, and we construe the instrument as a lease in substance as well as in form. The instrument is not essentially different from the so-called “mining leases” which have long been used in developing, working, and obtaining profits from mineral lands. These instruments have been held to be leases and not sales of property. State v. Evans, 99 Minn. 220, 226, 108 N. W. 958, 9 Ann. Cas. 520; Boeing v. Owsley, 122 Minn. 190, 142 N. W. 129. In the Evans case it was said to be “the rule established by the great weight of authority that such leases do not constitute a sale of any part of the land,” and “that it was never a conception ■of the law that the man who took away the mineral got his title through a sale by the owner of the land; but the theory was that the mineral was the product of the use for which rent was paid, and that the tenant got his title to his mineral by an appropriate use of the demised premises.” The same principles are applicable here. "We hold the instrument in question to be a lease, and that an action in forcible entry and unlawful detainer may be maintained.
Judgment affirmed.