Aikins v. Nevada Placer, Inc. , 54 Nev. 281 ( 1932 )

This opinion will be confined to the consideration of the question: "Does the lease at bar encounter the prohibition of section 78 of an act concerning conveyances, as amended in 1923 (Stats. 1923, c. 175), which reads as follows: ``No lands, town or city lots, or other real property, within this state, shall hereafter be conveyed by lease or otherwise, except in fee and perpetual succession, for a longer period than twenty years. All leases hereafter made contrary to the provisions of this act shall be void?'"

The clauses in the conveyance deemed pertinent to the question presented for consideration are as follows:

"First party being desirous of having said property exploited and worked for the purpose of recovering the metal values therein; therefore, for the consideration of One Dollar in hand paid by the second party to the first party, the receipt of which is hereby acknowledged and other good and valuable considerations hereinafter set out; first party hereby agrees to lease to second party or his assigns said property as above described for a term of years sufficient to enable the second party to work the property and recover the values therein and to receive as royalty one-tenth of all the gold and other metals recovered therefrom.

"This agreement is to continue in effect; provided, the covenant in the above has been kept by the second party for a period of five (5) years, and as long thereafter as the second party or his assign sees fit to operate said property on the terms and conditions as above set forth."

The conveyance is considered by the parties and their attorneys to be a lease in praesenti for a term of years. If this be true, then the only point to be decided is whether, under the statute, the lease is void. The lessee is granted the right to occupy and have possession of the premises for a term of years sufficient to enable him to work the property and recover the values therein. The lease further provides that it is to continue in effect for that purpose, provided the covenants be kept for a period of five years and as long thereafter as the lessee or his assign sees fit to operate the property on the terms and conditions of the lease. It thus appears that, interpreted as a whole, the period granted the lessee to operate the property is for a term of years sufficient to enable him to work the property and recover the values therein, which may extend for a period longer or shorter than twenty years. Undoubtedly such a lease is within the inhibition of the statute. Otherwise a person may tie his property up by lease for a longer period than twenty years by the mere wording of his contract and thus defeat the policy of the law so clearly expressed in the statute.

I do not consider the case of Parish v. Rogers, 20 A.D. 279,46 N.Y.S. 1058, quoted from so extensively in the opinion of my esteemed associate, to be analogous to this case in fact or in principle. If it be deemed necessary to resort to New York decisions to determine the legal effect and operation of our statute, the case of Clark v. Barnes, 76 N.Y. 301, 32 Am. Rep. 306, decided before Parish v. Rogers, and which, so far as I have been able to discover, stands unreversed, is nearer in point. The case holds that under the constitution, art. I, sec. 14, a lease of agricultural land for a longer period than twelve years is void in toto. In Parish v. Rogers, it was held that the same constitutional provision applied only to a lease in which shall be reserved any rent or service of any kind. In Nevada a conveyance by lease of lands for a longer period than twenty years is void without reference to whether rent is reserved. Furthermore, in Parish v. Rogers, the lease there under review was held not to be ab initio invalid, but void only as to the excess period. I also note that the lease under review in Parish v. Rogers created an estate dependent for its duration upon the payment of rent during the life of the lessor — a providential interposition and not upon the volition of the parties. The lease at bar depends for its duration upon no such providential contingency, nor any contingency other than the uncertainty of the extent and value of the minerals in the ground. It is for a term of years sufficient to enable the lessee to work the property and recover the values therein.

In view of the policy of the law so plainly expressed in the statute, the lease at bar must be construed to extend for a longer period than twenty years. Being contrary to the provisions of the statute, the lease is void ab initio.

The judgment should be affirmed.