Bulletin 159 Abstracts of Current Decisions On Mines and Mining, May - August, 1917

OWNERSHIP OF ORE-CONSTRUCTION OF CONTRACT. A contract between the Republic Mines Corporation and the Quilp Gold Mining Co. provided that upon forfeiture of its rights under a contract the Republic Mines Corporation was required to give a good and sufficient deed conveying to the Quilp Gold Mining Co. all ore bodies of every description lying east of the west line of the Quilp Mining Co. claim extended downward vertically and lying south of the north end line of the Quilp claim extended downward vertically and which may apex within the lines of the Surprise, an adjoining mining claim. It must be presumed that the contracting parties under such circumstances had in view their statutory rights as provided by the mining statutes of the United States, and that both were familiar with the provisions as to extra- lateral rights granted by the statute to locators of mining claims. This contract means to include all ore bodies of every description lying east (or easterly) of the west (or westerly) line of the Quilp claim extended downward vertically and south (or southerly) of the north end line of the Quilp claim extended downward vertically within the Quilp claim excepting the part that was overlapped by the Surprise claim, owned by the Republic Mines Corporation. Quilp Gold Min. Co. v. Republic Mines Corp. (Washington), 165 Pacific 57, p. 61. PURCHASE OF GAS-REFUSAL TO DELIVER SALE TO OTHERS. A gas company that had entered into a contract to purchase a quantity of natural gas refused to receive and accept the gas that was tendered on the ground that it did not conform to the requirements of the contract; subsequently the company refused to sign a writing by which it was asked to consent to the sale of such gas to other persons. But the refusal of the purchasing company to sign such a writing giving its consent or its refusal to consent to such sale did. not affect the rights of the seller to dispose of the gas elsewhere and to other persons. OWNERSHIP OF MINERALS IN HIGHWAY. All mineral deposits within the limits of a highway belong to the owner of the fee and he is entitled to remove them so long as he does not interfere with the public use of the highway. City of Scranton v. Scranton Coal Co. (Pennsylvania), 100 Atlantic 813, p. 819. SALE AND CONVEYANCE. SALE AND CONVEYANCE EXCEPTION AND RESERVATION. The owner of an undivided interest in oil and gas lands conveyed the same to certain named grantees by deed containing a clause excepting and reserving all the oil and gas produced from the undi- vided interest in the land described. The language is not apt for the creation of either an exception or a reservation, but is rather that of a layman unfamiliar with legal distinctions. Strictly and literally construed, it affords a basis for a contention that that which was excepted and reserved was not realty in any form or anything inci- dent thereto, but personalty produced from the land. Immediately following the description of the tract, the grantor excepted and reserved something from the land described. What he excepted and reserved, he excepted and reserved then, and it was from his interest in the land. The clause expressed according to the evident intention of the grantor would read: "Excepting and reserving from the above all oil or gas which may hereafter be produced therefrom." No other construction can reasonably be placed upon the language used. The carving out of a separate estate in the oil and gas in land is a common occurrence in oil and gas producing fields. Mandle v. Gharing (Pennsylvania), 100 Atlantic 535, p. 536. RESERVATION CONSTRUED AS AN EXCEPTION. Where apt words of reservation are used in a deed they will be construed as an exception where this is the evident intention of the parties to the instrument. Although an exception and a reservation differ in legal effect, yet in their creation there is no magic in words, and if the meaning is clear either expression will operate for the purpose designed. The technical distinction between an exception and a reservation is frequently disregarded in the ordinary use of the word, and whether the language used creates an exception or a reservation must be determined from the intention of the parties ascertained from the entire instrument.