Foster & Co. v. Runk

Mr. Justice Gordon

delivered the opinion of the Court,

Although there were a number of exceptions taken to tbe ruling of the court below which are here assigned for error, yet we regard the third point of the defendants below and the answer to it as embracing every thing that is material in this case. If Runk in fact owned the brick clay found upon the tract of land sold to Abby Bowman, then, of course, his lease to Tombler, the assignor of the defendants, was not only good when made, but by virtue of the holding over by the lessees, continued to run down to the time of the bringing of this suit.

In that case, there was but one alternative left to Foster & Co., either to paj'- the rent according to the terms of the lease, or to turn out and abandon the premises to their landlord.

If the fact as above stated be established, then the question whether they could or could not defend on the Abby Bowman lease, needs no consideration, and all points and assignments' relating to it disappear from the contention as having no material relevancy to it. In that event, the answer to the defendants’ first point, which affirms the insufficiency of the defendants’ evidence to impeach Rank’s title, must be regarded as correct.

What then, was the character of that title ? It is found in the reservation contained in his deed to Abby Bowman of December 9th, 1868, and reads as follows: “ and also all valuable earths, clays, stones, paints and substances for the manufacture of paints upon or under the said tract of land.” One would suppose that this was broad enough to embrace brick clay, and the more so as “ all valuable clays ” are specially reserved.

But the ingenuity of counsel has devised two objections to this conclusion plain and obvious as it seems to be. (1.) It is urged that the reservation is to be understood as only of that kind of clay from which paint can be manufactured. Such, however, is not the force of the language here made use of.

It may, indeed, be that the paint here spoken is a species of clay, and that as such it is “valuable,” but clay is also valuable for the manufacture of brick, and as the reservation is of “ all such clays,” the question is not what may or may not be manufactured from it, but whether it is valuable for any purpose. Beside this, it is clearly manifest that the language here used is intended to distinguish “ earths, clays and stones,” from “paints and substances for the manufacture of paints.”

In ordinary language clays, and. chromes or paints are substances altogether different, and no one not posted in mineralogy, would suppose that the former included, the latter. We cannot, therefore, agree to entertain the construction here attempted.

(2.) It is said that the reservation being as broad as the grant is therefore void, and the whole property vests in Abbv Bowman. But neither can we entertain this proposition. From a technical and scientific standpoint undoubtedly the reservation embraces everything that is the subject of grant. “All mauner of minerals, substances, coals, ores, fossils, and also all manner of compositions, combinations, or compounds of any or all of tbe foregoing substances, and also all valuable earths, clays, stones, paints and substances for the manufacture of paints,” certainly embrace all things of an iuorganie character, and technically would leave nothing for the grantee. But we cannot thus construe the contracts of ordinary people, for if we did so the intention of tbe parties would, as a rule, bo defeated. For such contracts the proper construction is that which is made by viewing the subject matter of tbe contract as tbe mass of mankind would view it, since it is most reasonable to suppose that such was the aspect in which the parties viewed it: Schuylkill Navigation Co. v. Moore, 2 Wh., 477 ; Gibson v. Tyson, 5 Watts, 84; Dunham & Short v. Kirkpatrick, MS. Construing the deed before us by this, the only proper rule, and there is no doubt but that, notwithstanding the very general character of the reservation, there was something left upon which the grant could operate ; that the latter did not include the ordinary glebe, timber or waters. If, however, these and the like were not included in the reservation, that part of the deed must be considered, as valid, and as continuing in the plaintiff the right to the minerals, clays and paints.

This establishes tbe validity of the lease of the brick clay to Tombler, and as it is by virtue of that lease that the defendants hold the premises, it is certain that by its terms they must abide.

The judgment is affirmed.