Appeal from Ninth Judicial District Court, White Pine County; Ben W. Coleman, Judge.
Summerfield & Richards, for Appellant.
Brown & Belford, for Respondent.
By the Court, McCarran, J.:
This is an action commenced by respondent in the district court of White Pine County to quiet title to certain lots of land, the total acreage of which amounts to 64.167 acres. It appears that in March, 1906, one Corbett entered into negotiations with the appellant Comins and his wife for the purchase of certain lands owned by appellant, and the water rights belonging to them, in what is known as Steptoe Creek, in Steptoe Valley.
On the 24th day of March, appellant and his wife made and executed a deed; the portion of which attempting to describe the lands conveyed is as follows:
All those lots, pieces, or parcels of land situate on or near Steptoe Creek, in the county of White Pine, State of Nevada, commonly known as and called the Comins Ranch, and more particularly described as follows: (Here follows description of the land by legal subdivisions.) Containing sixteen hundred (1600) acres of land, more or less; and also all water and water rights appurtenant to the said lands, or in anywise appertaining thereto, and all the right, title, and interest of the said parties of the first part in or to the waters of said Steptoe Creek. Under agreement, the deed was placed in escrow, and was not delivered until the final payment of purchase money was made, some time during the month of April, 1907.
The respondent company became the successor to Comins in the lands conveyed.
When the final payment was made, appellant vacated the houses and barns formerly occupied by him, and
delivered the same and the possession of the lands to the representative of Corbett. It appears from the record that at the time deed was made from Comins to Corbett, the former was the owner of nearly four thousand acres, of which the sixteen hundred acres embraced within the legal subdivisions enumerated in the deed constituted a part. Of the four thousand acres owned by Comins prior to the transaction of March, 1906, only a part had been put under cultivation by the application of waters diverted from Steptoe Creek; and it appears from the record, and from the plats accompanying the record, that a fence had been constructed many years prior to 1906, which, in an irregular way and running in an irregular line, separated the wild, uncultivated land from that land which had been in whole or in part brought under cultivation by the application of the waters from Steptoe Creek.
This fence did not follow the lines of any legal subdivisions of the land owned by Comins, but in an irregular way crossed the southeast quarter of the northeast quarter of section 7, the northeast quarter of the southeast quarter of section 7, the southwest quarter of the southwest quarter of section 8, the northwest quarter of the northwest quarter of section 17, and the southeast quarter of the northwest quarter of section 17, in which subdivisions the land in dispute is located, and which subdivisions are contiguous to certain of the subdivisions enumerated in the deed and conveyed to Corbett.
The accompanying plat (see page 365) illustrates the location of the ground in dispute, the same being marked Parcel 1, Parcel 2, Parcel 3, Parcel 4, Parcel 5, and Parcel 6. The subdivisions marked X are those named in the deed from appellant to Corbett; the subdivisions marked C are the lands of appellant.
It is the contention of respondent that the six small tracts of land contained in the legal subdivisions above enumerated, and inside the fence, belong to them under
the deed of purchase of March, 1906, although not embraced within the legal subdivisions specifically mentioned in the description of the land set forth in the deed from Comins and his wife to Corbett. Their contention, briefly stated, is that everything inside the fence, which formerly separated the uncultivated lands belonging to Comins from his cultivated lands, was intended to be conveyed by the deed; their strongest ground of contention being that, inasmuch as the deed in its descriptive part mentions specifically the Comins Ranch, and as that land enclosed by the fence and separated from the uncultivated land was generally known as the Comins Ranch, they are not confined entirely to the legal subdivisions enumerated in the deed, but, in addition to these legal subdivisions, they became the owners of the additional lands included within the six small parcels within the fence.
On the same day on which the deed was signed by Comins and his wife, an agreement was entered into, in writing, as to the terms and conditions of the transaction, and also describing by legal subdivisions the land to be conveyed. This agreement to sell will hereafter be considered in connection with the deed.
As we view it, this case presents two distinct phases; and these phases must be considered, in order to arrive at a just solution of the situation. The deed which passed from appellant Comins and his wife to Corbett, the predecessor of respondent company, with its general, its limited, and its particular descriptions as to the estate conveyed, presents the first phase. The situation, aims, and intentions of the respective parties, culminating in the agreement to sell, and eventually in the deed of conveyance, constitute the second phase.
 Established rules applicable to the construction of deeds may be resorted to in the first of these phases. The particular description in the instrument controls, as against the general description. Hence, that particular description which assumes to set forth the legal subdivisions would limit and define the grant, as against the
general description demoninating the estate as the Comins Ranch.
It is in the second phase of the case that we find the sidelights, as it were, presented in the way of the intentions of the parties, before and at the time of the making of the agreement of sale and the deed, as to what was desired by the purchasing party, Corbett; as to what was intended to be conveyed by Comins; and, finally, as to what was embraced within the agreement arrived at when the instruments were signed.
From the record it is disclosed that Charles S. Chandler, a practicing attorney of Ely, White Pine County, represented, as attorney, the grantee Corbett in all of the transactions with reference to the purchase of the property from the appellant Comins; and, when called as a witness on behalf of the appellant in this case, he testified, both on direct and cross-examination, to a number of significant facts, which, laying aside all other evidence in the case, seem, in our judgment, to make the second phase of the case less difficult.
It was the witness Chandler who drew the deed, and who also drew the agreement entered into between the parties. It was he who passed upon the title of the property from an abstract furnished by appellant Comins, and in that respect the witness Chandler testifies:
Q. Did you examine the title to the property described in that agreement and deed, for the purchaser, Mr. Corbett? A. Yes, from an abstract.
Q. What property did that abstract embrace? A. Well, it embraced the land which was included in the deal, or at least it embraced the land which Senator Comins gave us as included in the deal.
Q. Was the abstract an abstract of title to the land particularly described in the deedthe forties and eighties and quarter-sections described in the deed particularly? A. Yes, sir.
Q. Did the abstract include any land outside those particularly described in that deed? A. My ...