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in the granting clause, plaintiff did “grant, particular act or series of acts upon the land hargain and sell” to said grantees an un- of another without possessing an estate divided one-half interest in said premises, therein. 25 Cyc. 640. The test to determine "together with all and singular the tene- whether an agreement for the use of real ments and appurtenances thereto belonging estate is a license or a lease is whether the or otherwise appertaining." The fee thereby contract gives exclusive possession of the conveyed could only be reduced or qualified premises against all the world, including by language equally plain. Nothing of the the owner, in which case it is a lease, or kind is found. Indeed, if the agreement in whether it merely confers a privilege to occontroversy be regarded as a part of the cupy under the owner, in which case it is a consideration, it cannot be deemed as creat- license, and this is a question of law arising ing a condition subsequent or modifying in out of the construction of the instrument. Id. any degree the estate conveyed. In Hart It is said in Wheeler et al. v. West et man v. Reed, 50 Cal. 485, it is held that "if" al., 71 Cal. 126, 11 Pac. 871: "There is a one conveys to another a tract of land, part broad distinction between a lease of a mine, of a Mexican grant, in consideration of an under which the lessee enters into possesagreement by the other to prosecute the sion and takes an estate in the property, claim before the courts for final confirma- and a license to work the same mine. In tion, and the grantee fails to fulfill his the latter case the licensee has no permanent agreement, the title vests absolutely and the interest in the property, or estate in the remedy of the grantor for the breach of the land 'itself, but only in the proceeds, and in agreement is an action for damages." such proceeds, not as realty but as personal

In Lawrence v. Gayetty, 78 Cal. 126, 20 property; and his possession, like that of Pac. 382, 12 Am. St. Rep. 29, the considera- an individual under a contract with the tion was the promise to make valuable im. owner of land to cut timber or harvest a provements, and the court said: "It must crop of potatoes thereon for a share of the be borne in mind that the plaintiff did not proceeds, is the possession of the owner." contract to convey upon the performance of This license granted to the said parties 'afthe contract on the part of the defendants. fected, of course, only the one-half interest Therefore his promise was not dependent up- belonging to plaintiff, as their ownership of on theirs, nor was there anything appearing the other half carried with it necessarily in the deed, or in the contract under which the right of possession and development. it was made, showing or tending to show Toj As to the plaintiff, his right under the that a compliance with their promise was provision in question was to insist upon oneregarded as a condition subsequent, or that third of the proceeds of the mine in case the a failure to perform on their part should in licensees exercised their option, and it was any way affect the title conveyed to them. his privilege to revoke the license at his The case is precisely in principle the same pleasure. The license was in fact revoked as if the plaintiff bad conveyed and taken by his said conveyance to Armstrong. This a note for the purchase money, and the de- necessarily follows from the nature of a lifendants had failed to pay the same.”

Incense.

It being a mere personal privilege, Cullen v. Sprigg, 83 Cal. 56, 23 Pac. 222, it it is not, of course, a covenant running with is held that “the recital in a deed that it is the land, it does not bind, therefore, the sucin consideration of a certain sum and that cessors in interest of the parties, and it the grantee is to do certain things is not would be manifestly inequitable to allow the an estate upon condition, not being in terms plaintiff to enjoy the benefits of the agreeupon condition, nor containing a clause of ment when he had deprived the other parties re-entry or forfeiture.” To the same effect of the reciprocal privilege conferred by said is Behlow y. Southern Pac. R. R. Co., 130 provision. Cal, 16, 62 Pac, 295, wherein the familiar

[6] “A license is founded upon personal doctrine is asserted that "conditions subse- confidences, a mere personal privilege exquent, especially when relied on to work a tending to the person to whom it is given, forfeiture, must be created by express terms and is therefore not assignable and an ator clear implication and are to be construed tempt to assign terminates the privilege." strictly against a forfeiture which is not “A mere license, which is nothing more than favored in law." It is held, further, that a personal privilege, is revocable at the “a provision in the deed by which the rail- pleasure of the licensor, and the fact that way company agrees, as a further considera- the license was created by a written instrution of the grant, to place two stations at ment, or even conferred by deed, does not a location to be selected by the grantor, at affect the rule of revocability at the option which all trains must stop, is not a condi- of the licensor.” 25 Cyc. 644. “A license tion upon which the estate is granted and is may be revoked by a sale and conveyance of not available to defeat the estate created by the land without reserving the privilege to the grant, but is merely a personal covenant the licensee or by a lease or mortgage of on the part of the grantee."

the same, for a mere license cannot work a [4] The situation is clearly brought with breach of the warranty of title." 25 Cyc. in the definition of a license in respect to 650. real estate, which is an authority to do a [7] The foregoing is undoubtedly the view

of the situation taken by plaintiff when he two-thirds of the balance, and be content executed said deed to Armstrong. The fol- with one-sixth of what the mine yields. lowing covenants were therein implied: "(11 The case upon which respondent princiThat previous to the time of the execu- pally relies is Downing v. Rademacher, 133 tion of such conveyance the grantor has not Cal. 220, 65 Pac. 385, 85 Am. St. Rep. 160. conveyed the same estate, or any right, title, Therein it is held, as stated in the syllabus, or interest therein, to any person other than that “where the owner of a mine deeded the grantee. (2) That such estate is at the two-thirds thereof, the sole consideration of time of the execution of such conveyance which was a contemporaneous written agreefree from incumbrance done, made, or suf- ment reciting its execution and agreeing fered by the grantor, or any person claim that the grantee should have the exclusive ing under him." Section 1113, Civ. Code. right to work the mine, and should mill and According to respondent's theory of the case, reduce all ores taken therefrom, and deliver he had previously conferred upon said gran- one-third of all minerals to the grantor, the tees the right to the exclusive possession of deed and agreement constitute one instruthe whole of said land for the term of ment as between the parties and grantees twenty years and he comes into court in- with notice, and must be read as though sisting that they now have such right. each referred to the other and incorporated

[8] He cannot do this in the face of his its terms; and the deed is in effect subject warranty that he had not conveyed any in to the conditions set forth in the agreement." terest in his part of the property to any it is to be observed as to that case that one, and had not suffered any incumbrance the contract entered into was the sole conto attach to it. But it is insisted that Arm- sideration for the deed, there was an entire strong had notice of the previous convey- failure of such consideration, and the court ance, and therefore he took the estate sub- held that the circumstances. showed that ject to the previously imposed burden. the grant of the mine was conditional.

[9] Manifestly this would be of material From another standpoint the conclusion of significance if the former grantees were as- the court is shown to be just and equitable. serting some interest in the estate appar- Downing brought suit to quiet his title. ently conveyed by plaintiff to Armstrong, This, as well settled, is an equitable action. but it would require a long search to find The circumstances of the case made pean authority holding that the grantor of culiarly applicable the maxim that "he who such a conveyance would be heard to as- seeks equity must do equity.” It is indeed sert that he was still the owner of an in- strange that it should be contended that a terest by virtue of a reservation in a former plaintiff declining to pay any part of the deed. By the said conveyance, the plaintiff consideration or to meet his obligation imdoes not only "grant, bargain, sell, remise, posed thereby could obtain from a court of release, and forever quitclaim unto the said equity a decree establishing his title without party of the second part, and to his heirs being required, as a condition precedent, to and assigns, all of his right, title and inter- perform his promise, by virtue of which the est, same being a one-half undivided inter- conveyance to him had been made. As est in and to" said property, but he specifies stated in the Downing Case by the late Mr. “together with all the dips, spurs and angles Justice Temple: “As between the parties, and also all the metals, ores, gold and silver at least, there is no such magic in a conveybea ing rock, quartz rock and earth therein; ance of a title in fee which can be used to and all the rights, privileges and franchises do an owner out of his property.” thereto incident, appendant and appurtenant The cases from other jurisdictions cited or therewith usually had and enjoyed, and by the court in the Downing Case also exalso all and singular the tenements, heredit- hibit a situation totally different from what aments and appurtenances thereto belonging we have here. For instance, in Richter v. or in any wise appertaining, and the rents, Richter, 111 Ind. 456, 12 N. E. 698, the real issues and profits thereof." It is needless consideration was a contemporaneous agreeto add that, in view of the foregoing recit- ment in writing by the terms of which the als, it is a conclusive presumption against son agreed to support his father so long the plaintiff that he was at the time the ab- as he should live. A few months afterwards solute. owner of ar undivided one-half in the son refused to perform this contract. terest in said mine. Subdivision 2, $ 1962, The father brought suit for a reconveyance. Code Civ. Proc.

The defense was that the consideration for Nor can it be claimed that this is a cir- the deed was the agreement, and the only cunstance of no

to appellants. remedy the father had was to sue upon it. They have recognized the said provision as But the court, applying the familiar doctrine conferring simply a personal privilege, and that, "in the construction of deeds as in therefore, considering it revoked by the said construing other writings, courts seek to deed from plaintiff to Armstrong, they can- ascertain and give effect to the real intennot consistently dispute the right of Arm- tion of the parties as such intention may be strong's grantee to one-half of the proceeds gathered from the language of the whole of the mine. Under respondent's conten- instrument,” reached the just conclusion

concern

should be held and enjoyed on conditions the former at their expense implied the rethat the grantee perform the acts specified ciprocal duty on the part of plaintiff not to and therefore that it was a conditional es- interfere with their possession of the whole tate. So in Manning v. Frazier, 96 I1l. 279, of said mine, (4) That said license was the defendant entered into a written con- revocable at the pleasure of the licensor, tract wth John R. Squire and 0. D. Payne and it was actually revoked by said conby which he, in consideration of $1 and the veyance to Armstrong. agreements contained in the contract, bar These views necessarily lead to a decision gained, sold, and conveyed to them, their different from that reached by the learned heirs and assigns, all of the coal, limestone, trial judge, and the judgment and order are iron ore, rock oil, and other minerals in, therefore reversed. upon, or under a certain farm or tract of land which was particularly described, and We concur: CHIPMAN, P. J.; HART, J. contains 700 acres. The deed granted to them the right to enter upon and search for such minerals, and to dig, mine, explore,

(15 Cal. App. 710) and occupy with necessary structures and CITY OF SANTA MONICA V. LOS ANbuildings, and to mine and remove the coal,

GELES COUNTY. (Civ, 917.) limestone, etc. And the parties of the sec-(District Court of Appeal, Second District, Caliond part were bound to enter upon and fornia. March 24, 1911. Rehearing Demake search for coal, etc., within two years

nied by Supreme Court May 23, 1911.) from that date. They were also bound to 1. LIENS ($ 18*)-STATUTORY LIENS-PROCEEDhave preparations made for taking out coal

INGS TO PERFECT.

A lien declared by statute is not dependent for market within two years, and they were for its existence on a subsequent act, though such to pay to the party of the first part 12 cents act may be necessary to its enforcement, but for each ton of coal and limestone mined when such an act is done it relates back to the

time of the accrual of the lien. and removed from the land, and for ore

[Ed. Note. For other cases, see Liens, Dec. 10 cents per ton, payments to be made quar- Dig. $ 18.*] terly. The only questions decided were that 2. TAXATION ($ 109*)—LIABILITY FOR TAXESthe transaction amounted to a sale of real TIME OF ACCRUAL. estate and that the grantor had a vendor's The liability of real property for taxes aclien on the coal, etc., in the entire mine for crues on the first taxation Monday in March in

each year, though the tax is not levied and asthe whole of the purchase price, the court sessed till later, and hence an omission or irsaying: "The minerals were sold, the pur- regularity in subsequent proceedings affecting chase money was not paid, and, as com- the levy and assessment does not destroy the plainant did nothing manifesting an inten- be corrected in a subsequent year and the lia

liability, which, under Pol. Code, § 3806, may tion to waive his vendor's lien, equity will bility enforced. hold that it attached and must be enforced [Ed. Note.-For other cases, see Taxation, for the amount of purchase money due and Cent. Dig. $ 142; Dec. Dig. & 109.*] unpaid." It must be apparent that none of 3. TAXATION (8 183*)-PROPERTY LIABLE TO the foregoing cases involved the question of

PURCHASE BY MUNICIPAL CORPORATIONS. license and each of them possessed features Monday in March, but before a levy and assess

A city acquiring real estate after the first appealing irresistibly to the conscience and ment of a tax by the county, authorized to levy compelling the decision that was rendered. taxes for specified purposes, is liable for the To summarize: It appears reasonably cer- tax; the acquisition of the premises by the city

not carrying with it any interest in the lien tain: (1) That a mere license was created created by the tax for county purposes. by the agreement in controversy and not a [Ed. Note.--For other cases, see Taxation, condition subsequent. (2) That it operated Cent. Dig. $ 295; Dec. Dig. $ 183.*] neither to convey nor to reserve any estate 4. MUNICIPAL CORPORATIONS ($ 54*)-COUNin any part of the mine to which it related.

TIES.($ 1*)-NATURE OF ORGANIZATION. Indeed, this is implied in the finding of the of the state government established to aid the

A municipal corporation is but a branch court "that on the 5th day of February, Legislature in providing for the wants and wel1904, the plaintiff executed to one E. Cald-fare of the public within the territory for which well and defendant E. F. Caldwell an in- it is organized, and the Legislature may de

termine the extent to which it will confer on strument in writing wherein and whereby it any power, and this is true as to counties and the said plaintiff did sell and convey unto their government. said E. Caldwell and defendant E. F. Cald [Ed. Note.- For other cases, see Municipal well the individual one-half of the Hunter Corporations, Cent. Dig. $ 142; 'Dec. Dig. $ 54;* Creek mine,” and “that on the 24th day of Counties, Cent. Dig. $ 1; Dec. Dig. $ 1.*) January, 1904, the plaintiff sold and convey Appeal from Superior Court, Los Angeles ed the remaining one-half of said Hunter County; N. P. Conrey, Judge. Creek mine to one Thomas Armstrong by Action by the City of Santa Monica against deed and conveyance in the words and Los Angeles County. From a judgment for figures following." (3) That the payment by plaintiff, defendant appeals. Reversed. said licensees to plaintiff of one-third of the Rehearing denied by Supreme Court; Beproceeds in case the mine was operated by atty, C. J., dissențing. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

115 P.-60

J. D. Fredericks and Hartley Shaw, for lien of the county and state merged in the appellant. H. W. Taft and Tanner, Taft & title acquired by the municipality, which is Odell, for respondent.

an integral part of the state government.

[4] “A municipal corporation is but a ALLEN, P. J. This action was brought branch of the state government, and is estabhy the city of Santa Monica against the lished for the purpose of aiding the Legislacounty of Los Angeles to recover the amount ture in making provision for the wants and of taxes levied and assessed in September, welfare of the public within the territory 1903, against certain real property acquired for which it is organized, and it is for the by said city after March 1st of that year, Legislature to determine the extent to which but before such assessment was levied. The it will confer upon such corporation any city paid such taxes under protest and judg- power to aid it in the discharge of the obliment was rendered in its favor against the gation which the Constitution has imposed county for the recovery of the amount so upon itself.” Chico H. S. Board v. Supervipaid, from which judgment the county ap- sors, 118 Cal. 120, 50 Pac. 275. This is true peals.

as to counties and their government. Un[1] The sole question involved is as to the der the law counties are authorized to levy operative effect of such levy of taxes made taxes for certain school and county purposes, under the circumstances of this case. It and when collected the taxes are so applied. is appellant's contention that the lien for With reference to such matters the city may the taxes of 1903 attached on the first Mon- not exercise any right. Plaintiff by its orday of March of that year, and the subse- ganization as a part of the state government quent fixation of the amount, through levy has not been vested with power to aid the and assessment, was but a step necessary state in connection with county government for the enforcement of the already establish- or school government under the control of ed lien. This upon the authority of Couts v. the county authorities. The taxes so levied Cornell, 147 Cal. 564, 82 Pac. 194, 109 Am. upon the property were levied and assessed St. Rep. 168, and cases there cited. In a by the county for purposes within its jurisconstruction of section 2884, Civil Code, diction. The bare acquisition of the premiswhich provides that a lien may be created by es upon which the tax levy attached did not contract to take immediate effect as security carry with it any interest or estate in the for an obligation not then in existence, our lien therein created for county purposes. Supreme Court, in Tapia y. Demartini, 77 There was, therefore, no vesting of any less. Cal. 386, 19 Pac. 641, 11 Am. St. Rep. 288, er estate, held in the same right or otherhas said that a mortgage covering future wise, through which a merger could be said advancements, as against subsequent incum- to result. The plaintiff, when it acquired brancers, becomes a lien for the whole sum this land, took it subject to the lien for counadvanced from the time of its execution, al- ty purposes to the same extent'as would a though the right to enforce the collection private purchaser. thereof can only arise upon each advance

The question presented as to the inability ment being made. The analogy lies in this, of the city to prevent a sale through paythat a lien declared by positive statute is not ment of the taxes need not be considered, in dependent for its existence upon subsequent view of the fact that in this case the funds acts requisite to its enforcement. When have been provided and a sale thereby obvithese acts are performed they, by relation,

ated. become part of the established lien and are The judgment should be reversed, and it secured thereby.

is so ordered. [2] In the matter of taxation, the obligation imposed upon the property is such as

We concur: JAMES, J.; SHAW, J. to render it liable for the tax thereafter levied and assessed, which is an immediate

(15 Cal. App. 714) liability created, even though there be an omission or irregularity in subsequent pro- EVALINA GOLD MINING CO. v. YOSEMceedings affecting the levy and assessment.

ITE GOLD MIN. & MILL. CO. et al, These may in a subsequent year be corrected

(Civ, 797.) and the liability enforced. Section 3806, (District Court of Appeal, Third District, Cali

fornia. March 24, 1911. Rehearing DePol. Code.

nied by Supreme Court May 23, 1911.) [3] In our opinion, the city in the case un- 1. MINES AND MINERALS ($ 23*)- ASSESSMENT der consideration occupies no position dif WORK-DELINQUENT INTERESTS-NOTICE. ferent from that which it would have occu Rev. St. U. S. $ 2324 (U. S. Comp. St. pied had it acquired the property after the 1901, p. 1426), provides that, on the failure of levy and assessment had been made and proportion of the expenditure for assessment

any one of several co-owners to contribute his equalized, in which event the property so work on a mining claim for any year, the coacquired was subject to the lien on account owners who have performed the labor or made of the taxes levied and unpaid, unless there the improvements at the expiration of the year is merit in respondent's contention that the writing that, if the delinquent fails or refuses

Cal.)

EVALINA GOLD MINING CO. v. YOSEMITE GOLD MIN. & MILL, CO.

947

to contribute his proportion required within | merly owned by the defendants, Harry Arninety days after the `notice, his interest will gall and F. L. Argall," now claimed by become the property of his co-owners who have made the required expenditures. Held, that plaintiff company and defendant company, where notice to contribute for annual assess- as against each other. So far as the conveyment work was addressed personally to the in- ances of the disputed nine-twentieths affect. dividuals supposed to be the co-owners in de the questions now here, the court found the fault and was personally served on them, and was delivered immediately to their grantee under facts as follows: The Argalls executed and a prior unrecorded deed, it was sufficient to for- | delivered to Yosemite Gold Mining Company feit the rights of their grantee; the co-owners their deed on May 31, 1899, but it was not serving the notice having neither actual nor con- recorded until January 12, 1900. On May structive notice of the conveyance.

[Ed. Note.-For other cases, see Mines and 30, 1900, the Yosemite Gold Mining Company Minerals, Cent. Dig. $8 51-59, 114; Dec. Dig. & executed and delivered to the Yosemite Gold 23.*)

Mining & Milling Company (defendant) its 2. MINES AND MINERALS (823*)—“ASSESS- deed to the Argall interest, which was reMENT Work"-DRAINAGE.

corded September 28, 1900. On February Work done on a mining claim to withdraw water from the mine so that it could be exam- | 15, 1904, the Emersons, Britton, and Miller ined by a prospective purchaser, not operating executed and delivered their deed to plainto develop or improve the mine, or to enable the tiff conveying all their interest in said mine, co-owners performing the work to work the which said deed was recorded February 29, mine, was not assessment work required by Rev. St. U. S. § 2324 (U. S. Comp. St. 1901, p.

1904. 1426), to preserve the co-owners' right to the Two issues of fact were presented and the claim.

findings thereon constitute the basis of the [Ed. Note.-For other cases, see Mines and judgment in plaintiff's favor, from which Minerals, Cent. Dig. $8 51–59, 114; Dec. Dig. 8 and from the order denying their motion for 23.*]

a new trial, defendants appeal. These two Appeal from Superior Court, Tuolumne issues of fact were: First, that the Argall County; G. W. Nicol, Judge.

interest passed to the Emerson group of coAction by the Evalina Gold Mining Com

owners by reason of their having done the pany against the Yosemite Gold Mining assessment work on the mine for the year & Milling Company and others. Judgment

1898 and the failure of the Argalls to confor plaintiff, and defendants appeal. Af

tribute their share thereof, in consequence firmed.

of which they were "advertised out" under Will M. Beggs, W. C. Kennedy, and F. W. the act of Congress (Revised Statutes, $ Street, for appellants. J. P. O'Brien and 2324 [U. S. Comp. St. 1901, p. 1426], and Crittenden Hampton, for respondent.

hence passed to plaintiff by virtue of the

deed to it executed February 4, 1904; and, CHIPMAN, P. J. This is an action to second, that the Argall interest was forequiet the title to a certain mining claim closed under mortgage sale and plaintiff reknown as the Slap Jack mine, situated in deemed the property and thus became the Tuolumne county. The original complaint owner. was filed in 1899, and its object was to quiet First. The court found that the Emersons, the title of all the alleged owners as against Britton, and Miller performed the annual the adverse claims of one R. S. McWhirter. labor upon said mine for the year 1898, as The case, in some of its phases, has been required by the acts of Congress and the twice before the Supreme Court, once before laws of this state (finding 7); and that the this court and once before the United States Argalls failed to perform any labor on the Supreme Court on writ of error. Emerson mine during that year and failed to contribv. McWhirter, 133 Cal. 510, 65 Pac. 1036; ute or pay to their co-owners their proporEmerson v. Yosemite Gold Mining & Milling tion of the said annual labor. (Finding 8.) Co., 149 Cal. 50, 85 Pac. 122; Wemple v. The court further found that "after the Yosemite Gold Mining Co., 4 Cal. App. 78, expiration of the year 1898, and on or about 87 Pac. 280; Yosemite G. M. & M. Co. v. December 20, 1899," the Emersons, Britton, Emerson, 208 U. S. 31, 28 Sup. Ct. 196, 52 and Miller, plaintiff's predecessors in interL. Ed. 374. At the first trial, E. L. Emerson, est, "gave the said defendants Harry Argall Mrs. A. L. Emerson, F. F. Britton, and and F. L. Argall, and each of them, personal Jacob Miller (predecessors in estate of plain- notice in writing requiring them, and each tiff) and Harry Argall and F. L. Argall of them, to contribute and pay to the said" (predecessors in estate of defendant, Yo- Emersons, Britton, and Miller, "within the semite Gold Mining and Milling Company) time required by law, their proportion of were owners of the said mine, the former the expenditure made by said" Emersons, group owning eleven-twentieths and the Ar- Britton, and Miller, "and notifying them galls nine-twentieths. The results of prior and each of them that if they, or either of litigation, as found by the court (finding 5), them failed or refused, within the time resettled "all questions involved in this case, quired by law, to contribute and pay to the except the question of the ownership of predecessors in interest of the plaintiff herethe nine-twentieths interest, which was for- sin, their or either of their proportion of such

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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