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of another without possessing an estate therein. 25 Cyc. 640. The test to determine whether an agreement for the use of real estate is a license or a lease is whether the contract gives exclusive possession of the premises against all the world, including the owner, in which case it is a lease, or whether it merely confers a privilege to occupy under the owner, in which case it is a license, and this is a question of law arising out of the construction of the instrument. Id.

in the granting clause, plaintiff did “grant, | particular act or series of acts upon the land bargain and sell" to said grantees an undivided one-half interest in said premises, "together with all and singular the tenements and appurtenances thereto belonging or otherwise appertaining." The fee thereby conveyed could only be reduced or qualified by language equally plain. Nothing of the kind is found. Indeed, if the agreement in controversy be regarded as a part of the consideration, it cannot be deemed as creating a condition subsequent or modifying in any degree the estate conveyed. In Hartman v. Reed, 50 Cal. 485, it is held that "if one conveys to another a tract of land, part of a Mexican grant, in consideration of an agreement by the other to prosecute the claim before the courts for final confirmation, and the grantee fails to fulfill his agreement, the title vests absolutely and the remedy of the grantor for the breach of the agreement is an action for damages."

It is said in Wheeler et al. v. West et al., 71 Cal. 126, 11 Pac. 871: "There is a broad distinction between a lease of a mine, under which the lessee enters into possession and takes an estate in the property, and a license to work the same mine. In the latter case the licensee has no permanent interest in the property, or estate in the land 'itself, but only in the proceeds, and in such proceeds, not as realty but as personal property; and his possession, like that of an individual under a contract with the owner of land to cut timber or harvest a crop of potatoes thereon for a share of the proceeds, is the possession of the owner." This license granted to the said parties affected, of course, only the one-half interest belonging to plaintiff, as their ownership of the other half carried with it necessarily the right of possession and development.

As to the plaintiff, his right under the provision in question was to insist upon onethird of the proceeds of the mine in case the licensees exercised their option, and it was his privilege to revoke the license at his pleasure. The license was in fact revoked by his said conveyance to Armstrong. This necessarily follows from the nature of a liIn cense. It being a mere personal privilege, it is not, of course, a covenant running with the land, it does not bind, therefore, the successors in interest of the parties, and it would be manifestly inequitable to allow the plaintiff to enjoy the benefits of the agreement when he had deprived the other parties of the reciprocal privilege conferred by said provision.

In Lawrence v. Gayetty, 78 Cal. 126, 20 Pac. 382, 12 Am. St. Rep. 29, the consideration was the promise to make valuable im provements, and the court said: "It must be borne in mind that the plaintiff did not contract to convey upon the performance of the contract on the part of the defendants. Therefore his promise was not dependent upon theirs, nor was there anything appearing in the deed, or in the contract under which it was made, showing or tending to show that a compliance with their promise was regarded as a condition subsequent, or that a failure to perform on their part should in any way affect the title conveyed to them. The case is precisely in principle the same as if the plaintiff had conveyed and taken a note for the purchase money, and the defendants had failed to pay the same." Cullen v. Sprigg, 83 Cal. 56, 23 Pac. 222, it is held that "the recital in a deed that it is in consideration of a certain sum and that the grantee is to do certain things is not an estate upon condition, not being in terms upon condition, nor containing a clause of re-entry or forfeiture." To the same effect is Behlow v. Southern Pac. R. R. Co., 130 Cal. 16, 62 Pac, 295, wherein the familiar doctrine is asserted that "conditions subsequent, especially when relied on to work a forfeiture, must be created by express terms or clear implication and are to be construed strictly against a forfeiture which is not favored in law." It is held, further, that "a provision in the deed by which the railway company agrees, as a further consideration of the grant, to place two stations at a location to be selected by the grantor, at which all trains must stop, is not a condition upon which the estate is granted and is not available to defeat the estate created by the grant, but is merely a personal covenant on the part of the grantee."

[4] The situation is clearly brought within the definition of a license in respect to real estate, which is an authority to do a

[6] "A license is founded upon personal confidences, a mere personal privilege extending to the person to whom it is given, and is therefore not assignable and an attempt to assign terminates the privilege." "A mere license, which is nothing more than a personal privilege, is revocable at the pleasure of the licensor, and the fact that the license was created by a written instrument, or even conferred by deed, does not affect the rule of revocability at the option of the licensor." 25 Cyc. 644. "A license may be revoked by a sale and conveyance of the land without reserving the privilege to the licensee or by a lease or mortgage of the same, for a mere license cannot work a breach of the warranty of title." 25 Cyc. 650.

[7] The foregoing is undoubtedly the view

of the situation taken by plaintiff when he executed said deed to Armstrong. The following covenants were therein implied: “(1) That previous to the time of the execution of such conveyance the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee. (2) That such estate is at the time of the execution of such conveyance free from incumbrance done, made, or suffered by the grantor, or any person claiming under him." Section 1113, Civ. Code. According to respondent's theory of the case, he had previously conferred upon said grantees the right to the exclusive possession of the whole of said land for the term of twenty years and he comes into court insisting that they now have such right.

two-thirds of the balance, and be content with one-sixth of what the mine yields.

The case upon which respondent principally relies is Downing v. Rademacher, 133 Cal. 220, 65 Pac. 385, 85 Am. St. Rep. 160. Therein it is held, as stated in the syllabus, that "where the owner of a mine deeded two-thirds thereof, the sole consideration of which was a contemporaneous written agreement reciting its execution and agreeing that the grantee should have the exclusive right to work the mine, and should mill and reduce all ores taken therefrom, and deliver one-third of all minerals to the grantor, the deed and agreement constitute one instrument as between the parties and grantees with notice, and must be read as though 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 subject to the previously imposed burden.

held that the circumstances showed that the grant of the mine was conditional. From another standpoint the conclusion of the court is shown to be just and equitable. Downing brought suit to quiet his title. This, as well settled, is an equitable action. The circumstances of the case made peculiarly applicable the maxim that "he who seeks equity must do equity." It is indeed strange that it should be contended that a plaintiff declining to pay any part of the consideration or to meet his obligation imposed thereby could obtain from a court of equity a decree establishing his title without being required, as a condition precedent, to perform his promise, by virtue of which the conveyance to him had been made. As stated in the Downing Case by the late Mr. Justice Temple: "As between the parties, at least, there is no such magic in a conveyance of a title in fee which can be used to do an owner out of his property."

[9] Manifestly this would be of material significance if the former grantees were asserting some interest in the estate apparently conveyed by plaintiff to Armstrong, but it would require a long search to find an authority holding that the grantor of such a conveyance would be heard to assert that he was still the owner of an interest by virtue of a reservation in a former deed. By the said conveyance, the plaintiff does not only "grant, bargain, sell, remise, release, and forever quitclaim unto the said party of the second part, and to his heirs and assigns, all of his right, title and interest, same being a one-half undivided interest in and to" said property, but he specifies "together with all the dips, spurs and angles and also all the metals, ores, gold and silver ben ing rock, quartz rock and earth therein; and all the rights, privileges and franchises 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, issues and profits thereof." It is needless to add that, in view of the foregoing recitals, it is a conclusive presumption against the plaintiff that he was at the time the absolute owner of an undivided one-half interest in said mine. Subdivision 2, § 1962, Code Civ. Proc.

Nor can it be claimed that this is a circumstance of no concern to appellants. They have recognized the said provision as conferring simply a personal privilege, and therefore, considering it revoked by the said deed from plaintiff to Armstrong, they cannot consistently dispute the right of Armstrong's grantee to one-half of the proceeds of the mine. Under respondent's conten

Richter, 111 Ind. 456, 12 N. E. 698, the real consideration was a contemporaneous agreement in writing by the terms of which the son agreed to support his father so long as he should live. A few months afterwards the son refused to perform this contract. The father brought suit for a reconveyance. The defense was that the consideration for the deed was the agreement, and the only remedy the father had was to sue upon it. But the court, applying the familiar doctrine that, "in the construction of deeds as in construing other writings, courts seek to ascertain and give effect to the real intention of the parties as such intention may be gathered from the language of the whole instrument." reached the just conclusion

interfere with their possession of the whole of said mine. (4) That said license was revocable at the pleasure of the licensor, and it was actually revoked by said conveyance to Armstrong.

These views necessarily lead to a decision different from that reached by the learned trial judge, and the judgment and order are therefore reversed.

We concur: CHIPMAN, P. J.; HART, J.

(15 Cal. App. 710)

CITY OF SANTA MONICA v. LOS ANGELES COUNTY. (Civ. 917.) (District Court of Appeal. Second District, California. March 24, 1911. Rehearing Denied by Supreme Court May 23, 1911.) 1. LIENS (§ 18*)-STATUTORY LIENS-PROCEEDINGS TO PERFECT.

A lien declared by statute is not dependent for its existence on a subsequent act, though such act may be necessary to its enforcement, but when such an act is done it relates back to the time of the accrual of the lien.

[Ed. Note.-For other cases, see Liens, Dec. Dig. § 18.*]

2. TAXATION (§ 109*)—LIABILITY FOR TAXES—

TIME OF ACCRUAL.

should be held and enjoyed on condition [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 estate. So in Manning v. Frazier, 96 Ill. 279, the defendant entered into a written contract wth John R. Squire and O. D. Payne by which he, in consideration of $1 and the agreements contained in the contract, bargained, sold, and conveyed to them, their heirs and assigns, all of the coal, limestone, iron ore, rock oil, and other minerals in, upon, or under a certain farm or tract of land which was particularly described, and contains 700 acres. The deed granted to them the right to enter upon and search for such minerals, and to dig, mine, explore, and occupy with necessary structures and buildings, and to mine and remove the coal, limestone, etc. And the parties of the second part were bound to enter upon and make search for coal, etc., within two years from that date. They were also bound to have preparations made for taking out coal for market within two years, and they were to pay to the party of the first part 12 cents for each ton of coal and limestone mined and removed from the land, and for ore 10 cents per ton, payments to be made quarterly. The only questions decided were that the transaction amounted to a sale of real estate and that the grantor had a vendor's lien on the coal, etc., in the entire mine for the whole of the purchase price, the court saying: "The minerals were sold, the purchase money was not paid, and, as complainant did nothing manifesting an intention to waive his vendor's lien, equity will hold that it attached and must be enforced for the amount of purchase money due and unpaid." It must be apparent that none of the foregoing cases involved the question of license and each of them possessed features appealing irresistibly to the conscience and compelling the decision that was rendered. To summarize: It appears reasonably certain: (1) That a mere license was created by the agreement in controversy and not a condition subsequent. (2) That it operated neither to convey nor to reserve any estate in any part of the mine to which it related. Indeed, this is implied in the finding of the court "that on the 5th day of February, 1904, the plaintiff executed to one E. Caldwell and defendant E. F. Caldwell an instrument in writing wherein and whereby the said plaintiff did sell and convey unto said E. Caldwell and defendant E. F. Caldwell the individual one-half of the Hunter Creek mine," and "that on the 24th day of

January, 1904, the plaintiff sold and conveyed the remaining one-half of said Hunter Creek mine to one Thomas Armstrong by deed and conveyance in the words and figures following." (3) That the payment by said licensees to plaintiff of one-third of the proceeds in case the mine was operated by

The liability of real property for taxes aceach year, though the tax is not levied and ascrues on the first taxation Monday in March in sessed till later, and hence an omission or irregularity in subsequent proceedings affecting the levy and assessment does not destroy the be corrected in a subsequent year and the lialiability, which, under Pol. Code, § 3806, may bility enforced.

[Ed. Note.-For other cases. see Taxation, Cent. Dig. § 142; Dec. Dig. § 109.*] 3. TAXATION (§ 183*)-PROPERTY LIABLE TOPURCHASE BY MUNICIPAL CORPORATIONS.

A city acquiring real estate after the first Monday in March, but before a levy and assessment of a tax by the county, authorized to levy taxes for specified purposes, is liable for the tax; the acquisition of the premises by the city not carrying with it any interest in the lien created by the tax for county purposes.

[Ed. Note. For other cases. see Taxation, Cent. Dig. § 295; Dec. Dig. § 183.*] 4. MUNICIPAL CORPORATIONS (§ 54*)—COUNTIES (§ 1*)-NATURE OF ORGANIZATION. of the state government established to aid the A municipal corporation is but a branch Legislature in providing for the wants and welfare of the public within the territory for which termine the extent to which it will confer on it is organized, and the Legislature may deit any power, and this is true as to counties and their government.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 142; Dec. Dig. § 54;* Counties, Cent. Dig. § 1; Dec. Dig. § 1.*]

Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge.

Action by the City of Santa Monica against Los Angeles County. From a judgment for plaintiff, defendant appeals. Reversed.

Rehearing denied by Supreme Court; Beatty, C. J., dissenting.

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 appellant. H. W. Taft and Tanner, Taft & Odell, for respondent.

ALLEN, P. J. This action was brought by the city of Santa Monica against the county of Los Angeles to recover the amount of taxes levied and assessed in September, 1903, against certain real property acquired by said city after March 1st of that year, but before such assessment was levied. The city paid such taxes under protest and judgment was rendered in its favor against the county for the recovery of the amount so paid, from which judgment the county appeals.

lien of the county and state merged in the title acquired by the municipality, which is an integral part of the state government. [4] "A municipal corporation is but a branch of the state government, and is established for the purpose of aiding the Legislature in making provision for the wants and welfare of the public within the territory for which it is organized, and it is for the Legislature to determine the extent to which it will confer upon such corporation any power to aid it in the discharge of the obligation which the Constitution has imposed upon itself." Chico H. S. Board v. Supervisors, 118 Cal. 120, 50 Pac. 275. This is true as to counties and their government. Under the law counties are authorized to levy taxes for certain school and county purposes, and when collected the taxes are so applied. With reference to such matters the city may not exercise any right. Plaintiff by its or

has not been vested with power to aid the state in connection with county government or school government under the control of the county authorities. The taxes so levied upon the property were levied and assessed by the county for purposes within its jurisdiction. The bare acquisition of the premises upon which the tax levy attached did not carry with it any interest or estate in the lien therein created for county purposes. There was, therefore, no vesting of any lesser estate, held in the same right or otherwise, through which a merger could be said to result. The plaintiff, when it acquired this land, took it subject to the lien for county purposes to the same extent as would a private purchaser.

[1] The sole question involved is as to the operative effect of such levy of taxes made under the circumstances of this case. It is appellant's contention that the lien for the taxes of 1903 attached on the first Monday of March of that year, and the subse-ganization as a part of the state government quent fixation of the amount, through levy and assessment, was but a step necessary for the enforcement of the already established lien. This upon the authority of Couts v. Cornell, 147 Cal. 564, 82 Pac. 194, 109 Am. St. Rep. 168, and cases there cited. In a construction of section 2884, Civil Code, which provides that a lien may be created by contract to take immediate effect as security for an obligation not then in existence, our Supreme Court, in Tapia v. Demartini, 77 Cal. 386, 19 Pac. 641, 11 Am. St. Rep. 288, has said that a mortgage covering future advancements, as against subsequent incumbrancers, becomes a lien for the whole sum advanced from the time of its execution, although the right to enforce the collection thereof can only arise upon each advancement being made. The analogy lies in this, that a lien declared by positive statute is not dependent for its existence upon subsequent acts requisite to its enforcement. When these acts are performed they, by relation, become part of the established lien and are secured thereby.

[2] In the matter of taxation, the obligation imposed upon the property is such as to render it liable for the tax thereafter levied and assessed, which is an immediate liability created, even though there be an omission or irregularity in subsequent proceedings affecting the levy and assessment. These may in a subsequent year be corrected and the liability enforced. Section 3806, Pol. Code.

[3] In our opinion, the city in the case under consideration occupies no position different from that which it would have occu

pied had it acquired the property after the levy and assessment had been made and equalized, in which event the property so acquired was subject to the lien on account of the taxes levied and unpaid, unless there is merit in respondent's contention that the

The question presented as to the inability of the city to prevent a sale through payment of the taxes need not be considered, in view of the fact that in this case the funds have been provided and a sale thereby obviated.

The judgment should be reversed, and it is so ordered.

We concur: JAMES, J.; SHAW, J.

(15 Cal. App. 714) EVALINA GOLD MINING CO. v. YOSEM

ITE GOLD MIN. & MILL. CO. et al. (Civ. 797.)

(District Court of Appeal, Third District, California. March 24, 1911. Rehearing Denied by Supreme Court May 23, 1911.)

1. MINES AND MINERALS (§ 23*)-ASSESSMENT WORK-DELINQUENT INTERESTS-NOTICE.

Rev. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1426), provides that, on the failure of any one of several co-owners to contribute his proportion of the expenditure for assessment work on a mining claim for any year, the coowners who have performed the labor or made the improvements at the expiration of the year may give the delinquents personal notice in 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 ninety days after the notice, his interest will become the property of his co-owners who have made the required expenditures. Held, that where notice to contribute for annual assessment work was addressed personally to the individuals supposed to be the co-owners in default and was personally served on them, and was delivered immediately to their grantee under a prior unrecorded deed, it was sufficient to forfeit the rights of their grantee; the co-owners serving the notice having neither actual nor constructive notice of the conveyance.

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 51-59, 114; Dec. Dig. § 23.*]

2. MINES AND MINERALS (§ 23*)-"ASSESSMENT WORK"-DRAINAGE.

Work done on a mining claim to withdraw water from the mine so that it could be examined by a prospective purchaser, not operating to develop or improve the mine, or to enable the co-owners performing the work to work the mine, was not assessment work required by Rev. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1426), to preserve the co-owners' right to the claim.

[Ed. Note.-For other cases, see Minerals, Cent. Dig. §§ 51-59, 114; 23.*]

Mines and Dec. Dig. 8

Appeal from Superior Court, Tuolumne County; G. W. Nicol, Judge.

Action by the Evalina Gold Mining Company against the Yosemite Gold Mining & Milling Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Will M. Beggs, W. C. Kennedy, and F. W. Street, for appellants. J. P. O'Brien and Crittenden Hampton,. for respondent.

CHIPMAN, P. J. This is an action to quiet the title to a certain mining claim known as the Slap Jack mine, situated in Tuolumne county. The original complaint was filed in 1899, and its object was to quiet the title of all the alleged owners as against the adverse claims of one R. S. McWhirter. The case, in some of its phases, has been twice before the Supreme Court, once before this court and once before the United States Supreme Court on writ of error. Emerson v. McWhirter, 133 Cal. 510, 65 Pac. 1036; Emerson v. Yosemite Gold Mining & Milling Co., 149 Cal. 50, 85 Pac. 122; Wemple v. Yosemite Gold Mining Co., 4 Cal. App. 78, 87 Pac. 280; Yosemite G. M. & M. Co. v. Emerson, 208 U. S. 31, 28 Sup. Ct. 196, 52 L. Ed. 374. At the first trial, E. L. Emerson, Mrs. A. L. Emerson, F. F. Britton, and Jacob Miller (predecessors in estate of plaintiff) and Harry Argall and F. L. Argall (predecessors in estate of defendant, Yosemite Gold Mining and Milling Company) were owners of the said mine, the former group owning eleven-twentieths and the Argalls nine-twentieths. The results of prior litigation, as found by the court (finding 5), settled "all questions involved in this case, except the question of the ownership of the nine-twentieths interest, which was for

merly owned by the defendants, Harry Argall and F. L. Argall," now claimed by plaintiff company and defendant company, as against each other. So far as the conveyances of the disputed nine-twentieths affect. the questions now here, the court found the facts as follows: The Argalls executed and delivered to Yosemite Gold Mining Company their deed on May 31, 1899, but it was not recorded until January 12, 1900. On May 30, 1900, the Yosemite Gold Mining Company executed and delivered to the Yosemite Gold Mining & Milling Company (defendant) its deed to the Argall interest, which was recorded September 28, 1900. On February 15, 1904, the Emersons, Britton, and Miller executed and delivered their deed to plaintiff conveying all their interest in said mine, which said deed was recorded February 29,

1904.

Two issues of fact were presented and the findings thereon constitute the basis of the judgment in plaintiff's favor, from which and from the order denying their motion for a new trial, defendants appeal. These two issues of fact were: First, that the Argall interest passed to the Emerson group of coowners by reason of their having done the assessment work on the mine for the year 1898 and the failure of the Argalls to contribute their share thereof, in consequence of which they were "advertised out" under the act of Congress (Revised Statutes, § 2324 [U. S. Comp. St. 1901, p. 1426], and hence passed to plaintiff by virtue of the deed to it executed February 4, 1904; and, second, that the Argall interest was foreclosed under mortgage sale and plaintiff redeemed the property and thus became the owner.

First. The court found that the Emersons, Britton, and Miller performed the annual labor upon said mine for the year 1898, as required by the acts of Congress and the laws of this state (finding 7); and that the Argalls failed to perform any labor on the mine during that year and failed to contribute or pay to their co-owners their proportion of the said annual labor. (Finding 8.) The court further found that "after the expiration of the year 1898, and on or about December 20, 1899," the Emersons, Britton, and Miller, plaintiff's predecessors in interest, "gave the said defendants Harry Argall and F. L. Argall, and each of them, personal notice in writing requiring them, and each of them, to contribute and pay to the said" Emersons, Britton, and Miller, "within the time required by law, their proportion of the expenditure made by said" Emersons, Britton, and Miller, "and notifying them and each of them that if they, or either of them failed or refused, within the time required by law, to contribute and pay to the predecessors in interest of the plaintiff herein, 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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