Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-02-01

QulSIte to make a lease, any words that
show an intention on the part Of the les
sor to divest him self of the possession Of
the premises, and confer it upon the lessee
for a term, whether long or short, is snf-
ficent, but the lessee should sign the
lease, or in some manner become bound
by such covenants as it is agreed that he
shall perform
q Woods Landlord and Tenants,
Sec 2O6.)
"A lease is u species of contract for the
possession and profits of lands and tene-
ments, either for life or certain term of
years or during the pleasure of the par
ties.'
(l2 Am. & Eng. Ency. Of Law, 976.)
mo particular form or expression of
technical words are necessary to consti-
tute lease, but whatever expressions OK
plain the intention Of the parties to Ee
that oRe shall divest himself of the pos
session Of hi, property, and the other
shall take it for certain space of time,
are sufficient and VIII amount to lease
for years as etfectUally if the most
| proper and permanent form Of words
| had been made use .of for the purpose"
I'd. Sec. 917
La reference to leases OF mines, Lindley
/ says: AS to whether an instrument is
or is not lease depends upon the intent
of the parties and not upon the mere
form in which it is prepared" e Lind
ley, Sec. s6l.)
| whether an Instrument is a license or
a lease will lepend upon the manifest in
terest of the parties CLEANED from con-
| sideration of its entire contents
q Lindlcy on Mines. Sec. S6O)
We are Of opinion that the writing in
question from a consideration of its en-
tire contents, clearly and legally express
SEES the parties meaning and shows an in
tention on the part OF the lessons to di-
vest them selves of the possession of the
premises and to confer it upon the lessee,
and to obligate the lessee thereby TO work
said mine, in workmanlike manner,
during said term. and to pay the royalty
monthly as therein specified. We are Of
opinion that said writing was grant to
the lessee of the lessons undivided one
third interest in said mining claim for
said term Of one year being their share
of the whole of said mining claim or
! mine.
Counsel's further contention is. that
whatever may be the nature Of the instru-
ment, it cannot limit or restrict the estate
rights, or possession Of the defendant in
his own property, and he cites several
authorities to support this contention
The ans'v tr to this is. that said lease does
/ not limit or restrict the defendant in any
| of his rights with respect to said mine OF
mining claim, his estate therein or right
of possession thereof The authorities
cited are to the effect that it il not in the
power of tenant in common to convey
! the whole of the estate or the whole Of q
| distinct portion by metes and bounds
that such conveyance l. void as against
the o-te'la,ts, but that the respective co
| tenants may convey their shares of the
whole estate to one or many grantees a:
| they please so the share be of the entir,
estate.
AS an illustration in one of the sal,
cases cited, it i s:sti: - have 4 moity
my co-tenant has nsoity. he may con
vey a quarter OF the whole estate to one
an eighth to another. a sixteenth t
another and indefinitely, letting il
other co-tenauts with me. But all bein,
seized of aliGuot parts, i'll the same estate
and of like kind and quality, my right t
partition is not disturbed by the numbe
of co-tenants.''
adams vs.. Briggs Iron Co., : Cusf
36S.)
The lease in question is not lease G
the whole estate, nor the whole of dis
tinct portion by metes ard bounds, bu
it is a lease from the three co-tenants G
their undivided one-third interest, be
ing their share of the whole minin
claim.
Counsel contends, as we understand
that if the defendant had exclude
Howell ct al from the mine as he did tn
plaintiff, they could not have sued fc
damages, but would have been confine
to an action for partition of the commo
}. property or an accounting Of the rem,
and profits received by the defendal
from third parties, and that plaintiff ha'
ing no greater rights than his lessons, /
is confined to said remedies.
In Carpenter VS.. Waters, q Cal. s.
the court say: Partition would affol
s no redress for the dispossession, wheth,
total or partial. In the first place, Il
A tenant expelled might not desire a part
ton, and it is possible that a partitie
q would be equally unwelcome to co-tena
a who expelled him. In the second plae
partition does not lie between tenants
common at common Law, Obj. Com. II
1917 and we are now treating the subje
on common law conditions only. Al
in the third place, partition in equity
not for the purposes Of redress for oust'
nor for any description of wrongs pl
viously committed, but for the sole pu
peso Of terminating the common te
ancy. By the common law the eject
tenant was not -only entitled to be
stored to his meisty, but to damag
also. (Coke Lift Vol. l, p. $685. In cha
Gerry in partition cases, there:is no accou
l <,ly 0f -