Hochsprung v. Stevenson

Where the instrument or proceeding constituting the alleged cloud is absolutely void on its face, so that no extrinsic evidence

6. Cotenancy in mines, see note in 91 Am. St. Rep. 854. See, also, 7 R.C.L. 818. Right of one tenant in common to lease oil and gas land, see note in 40 A.L.R. 1401. 7. See 7 Cal. Jur. 347, 358; 6 R.C.L. 856. is necessary to show its invalidity, and where the instrument or proceeding is not thus void on its face, but the party claiming under it, in order to enforce it, must necessarily offer evidence which will inevitably show its invalidity and destroy its efficacy — in each of these cases the court will not exercise its jurisdiction either to restrain or remove a cloud. (4 Pomeroy's Equity Jurisprudence, sec. 1399; 32 Cyc. 1316, 1317; Newman v.Credit Men, 63 Mont. 545, 208 P. 914; Poulos v. LymanBros. Co., 63 Mont. 561, 208 P. 598.) Since respondent herself contends that the instrument is defective upon its face, the rule above applies with full force herein. The natural outgrowth of such a rule is that in an action to quiet title a court will not consider merely matters of construction.

Where the question is purely one of construction, no case is presented for the removal of a cloud on the title. (Ecton v.Smith, 6 Ky. Law Rep. 224; Brown v. Austen, 35 Barb. (N.Y.) 341, 22 How. Pr. 394.) Where everything appears of record making validity of plaintiff's title a question of law, there is no cloud on the title. (Born v. Pittsburgh, 266 Pa. 128,109 A. 614; Preston v. Smith, 26 Fed. 884; McCarty v.McCarty, 275 Ill. 573, 114 N.E. 322.)

If an instrument requires merely the construction of a court, then as a matter of law no cloud exists. A cloud exists only when the instrument is valid upon its face, and extrinsic evidence is necessary to show it defective. Where the instrument is valid and subsisting it cannot be a cloud.

In the case of Dunbar v. Morajeska, 20 Ariz. 178,178 P. 777, the court said: "So the only conclusion is that the court found from the pleadings or the evidence, or both, that the deed asked to be canceled was a mortgage and not a deed, although purporting to be one. And the finding also must have been that it was a valid, subsisting consideration and properly of record. That being so, it was not, as the term is defined and understood, a cloud upon the title." (See, also, Griffiths v. Griffiths,198 Ill. 632, 64 N.E. 1069; Rigdon v. Shirk, 127 Ill. 411, 19 N.E. 698.) Under such circumstances, the only judgment and decree that could be entered in the cause was the decree proposed by appellant dismissing the complaint.

A cancellation may be either voluntary or involuntary. Thus a surrender by a tenant before the time set for the termination of his lease is a cancellation. (Toland v. Toland, 123 Cal. 140,55 P. 681.) Such is the case here. A cancellation is a waiver of all rights under a contract. (Lipschutz v. Weatherly Twiddy, 140 N.C. 365, 53 S.E. 132; Whedon v. LancasterCounty, 80 Neb. 682, 114 N.W. 1102.) A voluntary release under a surrender clause is a cancellation. (Rogers v. Magnolia Oil Gas Co., 156 Ark. 103, 245 S.W. 802; Butler v. City of Iola,100 Kan. 111, 163 P. 652; Ulrey v. Keith, 237 Ill. 284,86 N.E. 696; Scott v. Lafayette Gas Co., 42 Ind. App. 614,86 N.E. 495; Rechard v. Cowley, 202 Ala. 337, 80 So. 419.) Again, the term "forfeit" includes within its meanings "surrender." (Newlove v. Trust Co., 156 Cal. 657,105 P. 971, 973.) The termination of an oil and gas lease by the expiration of its terms is a forfeiture of the lease.) (Steven v. Potlach Oil Refining Co., 80 Mont. 239, 260 P. 119.)

Under the above authorities, and bearing in mind the provisions of the lease with reference to which the parties were contracting, it seems apparent that the release given by the Carter Oil Company comes within the term "cancel or forfeit" as used in the assignment, and that upon the happening of that event appellant became vested with a proportionate interest in the minerals.

In the lower court respondent contended that since the assignment attacked contained no words of conveyance, it was not sufficient to transfer to appellant any interest in the minerals additional to the four and one-half per cent. It may be accepted as true that a deed without words of conveyance passes no title. But the assignment here under consideration contains the following words "grant, bargain, sell, convey, set over, and assign and deliver to L.C. Stevenson."

After the description of the property to be conveyed and after the clause here in controversy appears the habendum clause as follows: "To have and to hold, the above described property, together with all and singular the rights and appurtenances thereto in anywise belonging, and also the right, title, interest, claim, demand, possession, right of dower, and right of homestead, as well in law as in equity of the said Edith Hochsprung and Theodore Hochsprung, of, in and to said interests hereby conveyed and all thereof, unto the said L.C. Stevenson, successors, heirs or assigns forever." The clause in controversy which comes after the granting clause and precedes the habendum clause is as follows: "The lease interests and all future rentals on said land, for oil, gas and mineral privileges shall be owned jointly by Edith Hochsprung and Theodore R. Hochsprung and L.C. Stevenson each owning proportionate interest respectively in all oil, gas and other minerals in and upon said land, together with proportionate interest in all future rents."

The only authorities cited by respondent in the lower court were: McGarrigle v. Orphan Asylum (Cal.), 79 P. 447;Brewton v. Watson, 67 Ala. 121. Neither authority is applicable here. As sustaining the contention of appellant, we cite a later California case, one showing an almost identical state of facts as here presented: Hughes v. Scott,190 P. 643. That case likewise disposes of the Alabama case cited.

It is held that a clause succeeding the granting clause and preceding the habendum should in a case such as this be given effect as a part of the granting clause. (Adams v. Fisher,143 Mich. 673, 107 N.W. 705; Wilson v. Wilson, 268 Ill. 270,109 N.E. 36.)

In determining the estate created by a deed, the court will, under the modern rules of construction now generally adopted, consider the deed as a whole, without regard to its formal division into parts, the position of its different clauses or the technical accuracy of the language employed, the purpose sought being to effectuate the intention of the grantor as gathered from the entire instrument. (18 C.J. 330, 331; Lilly v. RaleighHdw. Co., 90 W. Va. 607, 111 S.E. 592; Kaleialii v.Sullivan, 242 Fed. 446, 155 C.C.A. 222.)

In the case of Brewton v. Watson, 67 Ala. 121, cited by respondent in the lower court, the court said: "Where an intent that the estate shall pass is manifested, its words will, if possible, be so construed that it shall take effect."

The modern doctrine of construction of deeds is that the intention of the grantor is to be gathered from a consideration of the entire instrument, though the immediate object of inquiry is the meaning of an isolated clause, taking into consideration every provision, clause and word, whether words of grant or description, or words of qualification, restraint, exception or explanation. (9 Cal. Jur. 255; East San Mateo Land Co. v.Southern Pacific R. Co., 30 Cal. App. 223, 157 P. 634.) The phrase here attacked is explained and made certain by the language succeeding it.

Other cases cited in connection with above argument: Walker v. Ames (Tex.Civ.App.), 229 S.W. 365; Queen v. Turman (Tex.), 257 S.W. 1092; Hoffman v. Magnolia Petroleum Co. (Tex.Civ.App.), 273 S.W. 828; McKernon v. Josey Oil Co.,106 Okla. 100, 233 P. 451; Prairie Oil Gas Co. v. Allen,2 F.2d 566. Suit to quiet title was plaintiff's appropriate remedy. The complaint is in the usual form of a suit to quiet title under section 9479, Revised Codes 1921. (Slette v. Review PublishingCo., 71 Mont. 518, 230 P. 580; Merk v. Bowery Mining Co.,31 Mont. 298, 78 P. 519; Pollock M. N. Co. v. Davenport, 31 Mont. 452, 78 P. 768; Violett v. Martin, 62 Mont. 335,205 P. 221.) There is no provision in the statute that the claim of the defendant must constitute a cloud upon the title. The action is directed against the "claim" of the defendant and it is wholly immaterial whether that claim is based upon a written instrument or not. The question has already been determined in this jurisdiction. (Mannix v. Powell Co.,60 Mont. 510, 199 P. 914; Slette v. Review Publishing Co., supra; Castro v. Barry, 79 Cal. 443, 21 P. 946; 22 Cal. Jur., pp. 116, 117; Cullen v. Western M. W.T. Co, 47 Mont. 513,134 P. 302.)

Respondent submits that the Carter Oil Company lease did not become "canceled or forfeited" within the meaning of these terms as used in the instrument under consideration; since the lease terminated by expiration of its term, it cannot be said to have been either "canceled or forfeited." The word "forfeit" is defined as follows: "To lose an estate, a franchise or other property belonging to one by the act of the law and as a consequence of some misfeasance, negligence or omission." (Black's Law Dictionary, 2d ed., p. 512.) "Forfeit means to annihilate or lose by a misdeed or transgression." (26 C.J. 892.) "The word forfeit has a well established meaning in the law. To forfeit is to divest or to suffer divestiture of property without compensation in consequence of a default or offense." (2 Anderson's Law Dictionary, and Second Series Words and Phrases, p. 611; Brown v. Fowler, 65 Ohio, 507, 63 N.E. 76). Nor was it canceled. To "cancel" means to annul, and it clearly implies that the instrument canceled should in the absence of cancellation appear upon its face to continue in force and effect. Where the lessee is permitted to occupy the premises for the entire term of his lease, it cannot be said that the lease was canceled. (Toland v. Toland, 123 Cal. 140, 55 P. 681.)

Respondent respectfully submits that the clause, "shall be owned jointly by," was ineffectual to pass to the appellant or its predecessor any additional interest in the minerals in the land upon the termination of the Carter Oil Company lease.

To convey a title means to transfer or move the title from one person to another. Unless the writing contains words indicating that the title shall move from one person to another, it cannot be deemed a conveyance. A mere declaration of the status of the title is clearly distinguishable from a movement or transfer of the title. The latter involves a change, transfer, or movement of the title; the former does not. The words "shall be owned jointly by," used in the clause under consideration is a mere declaration of the status of the title as distinguished from a transfer of the title. They indicate the understanding of the parties as to where the title will stand, and do not indicate that the title shall pass. (4 Thompson on Real Property, pp. 143, 144;McGarrigle v. Roman Catholic Orphan Asylum, 145 Cal. 694, 104 Am. St. Rep. 84, 1 L.R.A. (n.s.) 313, 79 P. 447; Webb v.Mullins, 78 Ala. 111; Long v. Holden, 216 Ala. 81,112 So. 444; Smith v. Williams, 141 S.C. 265, 139 S.E. 625.) The opinion in the McGarrigle Case is not, in any manner, qualified by the decision of the court of appeals in Hughes v.Scott, 47 Cal. App. 264, 190 P. 643. In the latter case the court of appeals merely held that the word "revert" there under consideration was an operative word, indicating the intention that the title should pass. It had previously held that the words, "shall pass to," were operative words. This is an action to quiet title. The complaint is in the ordinary short form used in such cases and alleges that plaintiff is, and for a long time had been, the owner of the north half of section 4, township 34 north, range 1 west, in Toole county, "together with an undivided ninety-three one-hundredths interest in and to all of the oil, gas and other minerals in or under" the same; that the defendants claim an estate or interest therein adverse to plaintiff, which claim is without any right whatever, and prays that the defendants be required to set forth the nature of their claim; that it be adjudged that defendants have no estate or interest whatever in or to said land or premises, but that plaintiff's title thereto is good and valid, and for general relief.

The answer admits that defendants claim an interest in the lands and minerals described in the complaint adverse to plaintiff, and then sets forth the nature of said claim, as follows: That on December 21, 1922, while the plaintiff was the owner and in possession of the land in question, for a valuable consideration, she, with her husband, Theodore R. Hochsprung, conveyed to the defendant Stevenson a four and one-half per cent interest in and to all the oil, gas and other minerals in and under, or that might be produced from, said land, with the right of ingress and egress for the purpose of mining, exploring and drilling for oil, gas, and other minerals, and removing the same therefrom, by an instrument in writing designated as an "assignment of royalty," which, in addition to the above grant, contained the following:

"And said above-described lands being now under an oil and gas lease originally executed in favor of and held by Carter Oil Company, it is understood and agreed that this sale is made subject to said lease, but covers and includes nine twenty-fifths of all the oil royalty and gas rental or royalty due and to be paid under the terms of said lease. It is agreed and understood that nine twenty-fifths of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to said L.C. Stevenson, and in theevent that the said above-described lease for any reason becomescanceled or forfeited, then and in that event, the leaseinterests and all future rentals on said land, for oil, gas, andmineral privileges shall be owned jointly by Edith Hochsprung andTheodore R. Hochsprung and L.C. Stevenson each owning proportionate interest, respectively, inall oil, gas, and other minerals in and upon said land, togetherwith proportionate interest in all future rents."

It is then alleged that on or about the fifth day of April, 1927, the lease held by the Carter Oil Company was surrendered, canceled and forfeited; that by mesne conveyances the defendant Sunburst Oil Gas Refining Company had become, and still is, the owner and entitled to the possession of the estate and interest acquired by said Stevenson in said land "and in and to all oil, gas and other minerals in and under the same to the extent of nine twenty-fifths thereof," and the prayer is that its title thereto may be quieted.

In her reply the plaintiff admitted the execution of the instrument relied upon by appellant, and by way of affirmative defense alleged that such instrument was prepared by the defendant Stevenson; that he was trained in drawing such instruments, and that she was not; that defendant Stevenson advised her that only a four and one-half per cent royalty interest was conveyed; that such advice was made deliberately and intentionally and was relied upon by plaintiff, and she thereupon executed the instrument under the impression that it conveyed only a four and one-half per cent royalty interest.

The defendants moved to strike these allegations of affirmative defense from the reply, for the reason that they constituted a departure from the complaint, which motion was overruled. The case was brought on for trial before the court without a jury. At the opening of the case counsel for the plaintiff, apparently having reference to the argument of counsel for defendants on motion to strike, said to the court: "As counsel stated in his argument, this is a suit to quiet title. * * * Defendant sets forth this particular instrument as the basis of its claim of title. * * * The real controversy here between the plaintiff and the defendant is the construction of that instrument."

After the evidence had been received, the court made findings of fact and conclusions of law in favor of the plaintiff, upon which a judgment was entered, from which the Sunburst Oil Gas Refining Company, hereafter called the defendant, has appealed.

The first contention made by counsel for defendant is that in[1, 2] an action to quiet title, brought under the provisions of section 9479, Revised Codes of 1921, the court cannot be called upon to merely construe an instrument, and hence did not have authority to enter a judgment in this case other than one dismissing the same.

Section 9479, supra, reads: "An action may be brought and prosecuted to final decree, judgment, or order, by any person or persons, whether in actual possession or not, claiming title to real estate, against any person or persons, both known and unknown, who claim or may claim any right, title, estate or interest therein, or lien or incumbrance thereon, adverse to plaintiff's ownership, or any cloud upon plaintiff's title thereto, whether such claim or possible claim be present or contingent, including any claim or possible claim of dower, inchoate or accrued, for the purpose of determining such claim or possible claim and quieting the title to said real estate. * * *"

In section 9487, Id., as amended by Session Laws of 1923, page 119, it is provided that, upon the service of summons in the action provided for in section 9479, the court in which "such action is tried shall have jurisdiction to make a complete adjudication of the title to the lands named in the complaint, and the title to which is sought to be quieted, including jurisdiction to direct the cancellation of instruments constituting clouds upon such title. * * *"

Section 6870, Revised Codes of 1907, as amended by Chapter 113, Laws of 1915, was the same as section 9479, supra, and in speaking of that section, in Mannix v. Powell County,60 Mont. 510, 199 P. 914, this court said: "Like statutes have been construed by the courts frequently, and it is the prevailing opinion that under such a statute as ours the owner of any estate or interest in land of which the law takes cognizance is entitled to have any claim adverse to his interest, such as it is, determined, and the title quieted."

In Slette v. Review Pub. Co., 71 Mont. 518, 230 P. 580, this court quoted with approval from Castro v. Barry, 79 Cal. 443,21 P. 946: "The action may be maintained by the owner of property to determine any adverse claim whatever."

In its answer the defendant admits that it asserts a claim to an estate or interest in the premises or minerals described in the complaint adverse to plaintiff, and sets forth the "assignment of royalty" as the basis of such claim. The plaintiff does not seek to invalidate any title actually vested in the defendant by the instrument in question; she does not seek the cancellation of that instrument in whole or in part; she merely says that it vested the defendant with four and one-half per cent of the minerals in the ground and left her vested with title to the remaining ninety-five and one-half per cent thereof, to a portion of which the defendant asserted its adverse claim. Whether the instrument constituted a cloud upon plaintiff's title to the minerals is wholly immaterial, "it being sufficient to warrant a decree quieting title that a claim is made adversely to the title of the true owner." (Slette v. Review Pub. Co., supra.)

Under the provisions of section 9487, above, the court had authority to make a complete adjudication of the respective rights of the plaintiff and defendant to the lands and mineral rights involved.

The main question in the case is presented by a determination of the meaning of the italicized portion of the "assignment of royalty," above quoted.

In the first place, the plaintiff claims that Stevenson did not obtain any interest in the oil, gas and other minerals under the land beyond the four and one-half per cent mentioned in the first part of the assignment of royalty, for the reason that the lease to the Carter Oil Company never became canceled or forfeited. In view of the conclusion at which we have arrived, it is not necessary to consider this contention.

We come now to a consideration of the meaning of the italicized portion of the assignment of royalty, above quoted. Plaintiff contends that upon the cancellation and forfeiture of the lease of the Carter Oil Company the defendant Sunburst Oil Gas Refining Company, as the successor in interest of Stevenson, owned four and one-half per cent of the oil, gas and other minerals in and upon the land and the future rents thereof, whereas, the defendant claims that upon the happening of that event it became the owner of nine twenty-fifths of such oil, gas and other minerals. The plaintiff's contention is based upon the ground that the paragraph contains no operative words of conveyance sufficient to transfer to the defendant an interest in such minerals and rights in addition to the four and one-half per cent mentioned in the granting clause of the instrument. We agree with this contention.

It is as a general rule necessary that a deed contain[3, 4] operative words of grant (18 C.J. 128); that a deed without words of conveyance passes no title (4 Thompson on Real Property, p. 143); and that, if an instrument has no words of conveyance, the courts have no right to put them in by interpretation (4 Thompson on Real Property, p. 144). The intention of the grantor in a deed is to be gathered from a consideration of the entire instrument, taking into consideration all of its provisions, and every part must be given effect if reasonably practicable and consistent with its evident purpose and operation, "not, indeed, as it is presented in particular sentences or paragraphs, but according to its effect when viewed as an entirety." (R.M. Cobban Realty Co. v. Donlan, 51 Mont. 58,149 P. 484; sec. 7530, Rev. Codes 1921.)

Taking this assignment of royalty "by its four corners," it is[5] to be observed that it is perfectly clear that the grantee Stevenson (1) purchased from the grantor four and one-half per cent of the minerals in the land, and (2) that the sale covered and included nine twenty-fifths of the oil and gas rental or royalty due and to be paid under the terms of the lease held by the Carter Oil Company, and also nine twenty-fifths of the money rentals which might be paid to extend the term within which a well might be begun under the terms of that lease. So much of the grant is plain. The instrument then goes on to provide that, if the Carter Oil Company lease becomes canceled or forfeited, the lease interests or all future rents and mineral privileges shall be owned by Edith Hochsprung, Theodore R. Hochsprung, and L.C. Stevenson, each owning "proportionate interest" in the oil, gas and other minerals in and upon the land and all future rents. The oil and gas lease held by the Carter Oil Company did not operate to convey to it the title to the oil and gas in place. (Homestake Exploration Co. v. Schoregge, 81 Mont. 604,264 P. 388.) After the execution of this lease there was nothing to prevent the plaintiff from conveying to Stevenson any interest she desired to in the minerals in or under the premises. Whatever interest she should convey would be subject to the terms of the Carter Oil Company lease. The plaintiff elected to sell to Stevenson, and he elected to buy from her four and one-half per cent of these minerals and mineral rights, and also a nine twenty-fifths interest in the royalties and rentals due and to become due and owing under the terms of the lease. These are the only items which the instrument indicates as being within the terms of the grant. When the Carter Oil Company, by cancellation or forfeiture of its lease, was divested of its interest in its mineral rights to the land in question, such rights reverted to the plaintiff or her grantee. Such rights then became vested in her or her assigns in proportion to their ownership thereof. This would follow as a matter of law. If the defendant became the owner of the same, or any part thereof, it must have been by virtue of a conveyance; i.e., the transfer of the title or an interest therein from the original owner to it or its predecessor in interest.

The clause in question does not contain any operative words of conveyance. The words "shall be owned jointly by" do not denote a present passing of title. In McGarrigle v. Roman CatholicOrphan Asylum, 145 Cal. 694, 104 Am. St. Rep. 84, 1 L.R.A. (n.s.) 315, 79 P. 447, the court held that the expression "shall become and be the property of" was insufficient to pass any title to real estate for lack of operative words. There is no substantial difference in the meaning of the expression we are considering and the one construed in the McGarrigle Case. The defendant calls attention to the later case of Hughes v.Scott, 47 Cal. App. 264, 190 P. 643, and contends that it amounts to a modification of the holding in the McGarrigleCase. In the Hughes Case, "revert" was considered to be an operative word of conveyance as indicating an intention that the title should pass, and in the opinion the court referred to the case of Jacobs v. All Persons, 12 Cal. App. 163,106 P. 896, where a like meaning was given to the words "shall pass to." These words "revert" and "shall pass to," express an intention that the title shall pass and are clearly distinguishable from the expression "shall be owned jointly by."

While no adjudicated case directly in point has been found the following lend support to the views above expressed: Webb v.Mullins, 78 Ala. 111; Long v. Holden, 216 Ala. 81,112 So. 444; Smith v. Williams, 141 S.C. 265, 139 S.E. 625.

We now consider the further statement in the instrument to the[6] effect that, upon the cancellation or forfeiture of the Carter Oil Company lease, the plaintiff, her husband, and Stevenson should each own "proportionate" interests, respectively, in the mineral rights in and upon the land. "Proportionate" means "adjusted to something else according to a certain rate of comparative relation." (Century Dictionary.) By the first clause of the assignment the royalty of four and one-half per cent of the mineral rights in the land passed to and became the property of Stevenson and his assigns, leaving ninety-five and one-half per cent of such rights in the plaintiff or her assigns, and these numerals then represented the rate of comparative relation or proportionate interest of the parties to such rights. The succeeding clauses of the instrument relate to royalties and rentals payable to plaintiff under the lease held by the Carter Oil Company. But this lease did not convey any title to the minerals in place under the land (Homestake Exploration Co. v.Schoregge, supra), and the right to royalty or rent under the lease ended with its termination, leaving as the only basis for computing the proportionate interests of the parties their respective percentages of ownership in the mineral rights in the land freed from the Carter Oil Company lease. This we conceive to be the true interpretation of the language which the parties used.

The instrument in question, in addition to the mineral[7] interests conveyed, granted "the right of ingress and egress at all times for the purpose of mining, drilling, and exploring said lands for oil, gas, and other minerals and removing the same therefrom." In the decree entered by the court this right was not specifically mentioned, and the failure of the court so to do is made the basis of defendant's assignments of error 5 and 8.

By the conveyance of the four and one-half per cent interest of the oil, gas and other minerals in and under the land to the defendant's predecessor in interest, which was subsequently transferred to the defendant, the plaintiff and the defendant became tenants in common. (Secs. 6682, 6683, Rev. Codes 1921;Rodda v. Bent, 68 Mont. 205, 217 P. 669; Isom v.Larson, 78 Mont. 395, 255 P. 1049.) "And since from the very nature of mining property it is valuable only because of the mineral it is supposed to contain, each of the cotenants may work it without being guilty of waste." (7 Cal. Jur. 347.) And for such purpose the tenant in common has a right of ingress and egress. (Id., 347; 1 Thornton on Oil Gas, sec. 312; PrairieOil Gas Co. v. Allen (C.C.A.), 2 F.2d 566.)

The instrument did not assume to give to the grantee named therein the exclusive right of ingress and egress for the purpose of mining, drilling, and exploring the lands for oil, gas and other minerals; it merely expressly declared what the law would imply under the authorities above cited, viz., the right of the holder of the undivided interest to enter upon the common property and exercise the rights conferred by section 9091, Revised Codes of 1921.

"Not only may a tenant in common enjoy the common estate, but, by either lease or license he may confer upon another person the right to occupy and use it as fully as such lessor or licensor might if such lease or license had not been granted." (7 Cal. Jur. 358; Prairie Oil Gas Co. v. Allen, supra.)

Since the decree of the court below recognized and in effect declared that defendant is a tenant in common owning four and one-half per cent of the minerals in the land, its right of ingress and egress for the purpose of mining is necessarily implied in the decree. "Necessary implication is beyond doubt as much a part of an instrument as if that which is so implied were plainly expressed." (6 R.C.L. 856.)

From our consideration of the record we are of opinion that the learned judge before whom the case was tried placed a correct construction upon the instrument in question, and the judgment is affirmed.

Affirmed.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MYERS, MATTHEWS and GALEN concur.

Rehearing denied April 26, 1928.