Dunham & Shortt v. Kirkpatrick

Mr. Justice Gordon delivered the opinion of the court, October 2d 1882. The reservation in the agreement of December 5th 1870, between Wood & Co. and Kirkpatrick, is of “all timber suitable for sawing, also all minerals.” The defendants, who claim under a lease from the vendors, in the agreement above stated, contend that it is their right, under the reservation, to enter upon, and take from, the premises in said agreement described, all the petroleum, or mineral oil, that may be found therein. This contention can be sustained only under the hypothesis that the word “minerals” in the reservation includes petroleum. The court below refused to sustain the interpretation put upon the agreement by the defendants, and entered judgment, on the case stated, for the plaintiff. In this we think it was right. The whole argument used for the purpose of convincing us that this decision is not correct is based on the allegation that petroleum is a mineral. It is true that petroleum is a mineral; no discussion is needed to prove this fact. But salt and other waters, impregnated or combined with mineral substances, are minerals; so are rocks, clays and sand; anything dug from mines or quarries; in fine, all inorganic substances are classed under the general name or minerals: Bon. L. Die.; Wor. Die.; Dana’s Geology; Grey’s Botany. But if the reservation embraces all these things, it is as extensive as the grant, and therefore, void. If, then, anything at all is to be retained for the vendor, we must, by some means, limit the meaning of the word “ minerals.” But the rule by which this may be done is well stated by Chief Justice Gibson in the case of the Schuylkill Navigation Co. v. Moore, 2 Wh. 477, as follows: “ The best construction is that which is made by viewing the subject of the contract as the mass of mankind would view it; for,” continues the learned chief justice, “ it may be safely assumed that such was the aspect in which the parties themselves viewed it.” So, Mr. Justice Kennedy, adopting this same rule, in the case of Gibson v. Tyson, 5 Watts 34, when construing an exception [44] in a deed “ of all mineral or magnesia of any kind,” says, that by the bulk of mankind nothing is considered as a mineral exceptt such things as be of a metallic nature, such as gold, silver, copper, lead &c., and that in looking at the deed before him, under the general understanding, he would have hesitated about classing chromate of iron as a mineral, except that, from the parol testimony, it appeared the parties themselves regarded it as a metallic ore of some kind. But if a doubt was raised as to the popular classification of the chromate of iron, a well known mineral, what shall we say of oil, which is regarded, even by science and law, as a mineral oidy because of its inorganic character, oi, as in Stoughton’s Appeal, 7 Nor. 198, because of its forming part of the freehold from which it is taken? Certainly, in popular estimation petroleum is not regarded as a mineral substance any more than is animal or vegetable oil, and it can, indeed, only be so classified in the most general or scientific sense. IIow, then, did the parties to the contract under consideration, think and write? As scientists; or as business men, using the language and governed by the ideas of every-day life ? As we have before observed, if this reservation is to have a strictly scientific construction it is as extensive as the grant, hence, works its own destruction; on the other hand, if we adopt the popular understanding we cannot regard petroleum as a mineral. Moreover, we may bo very sure that when Wood & Co. made their contract with Nirkpatrick, they did not intend to reserve the mineral oil that might afterward be found in the land, otherwise that intention would have been exjmessed in no doubtful terms. They were, doubtless, at that time unaware of the character of the property as oil territory. But if they did entertain such an idea, and expected to reserve oil under the general term “ mineral,” they were mistaken, and should have known that they were using that word in a manner not sanctioned by the common understanding of mankind, hence, in a manner that could not be approved by the courts of justice. The judgment is affirmed.