*49Opinion by
Lewis, C. J.,BeosNAN concurring.
This is an action of ejectment brought to recover possession of a mining claim located in Gold Hill, in the County of Storey. The complaint is in the usual form, alleging title in the plaintiffs, and ouster and wrongful holding by defendants. The defendants, Kneeland and Requa, answer jointly, admitting the title of Burke and Hamilton, but denying that they are entitled to the possession of the premises, or that they have any interest in the mill, machinery, pumps, fixtures, or other improvements connected with the same; also'denying the ouster and wrongful withholding of the premises by them; and claiming the right of possession in themselves under and by virtue of a 'certain agreement which is made a part of their answer.
They allege that they have performed all the requirements of the agreement on their part, and aver their willingness to crush the five thousand tons of rock mentioned therein, when the same shall be furnished to them by the plaintiffs.
The case was referred to a referee to report facts and a judgment, and the following facts and conclusions of law were reported:
First — The ground in controversy is the property of the plaintiffs.
Second/ — On the 9th day of November, 1861, and at the time of making the contract hereinafter stated, said ground was the property of the plaintiffs A. C. Hamilton and E, R. Burke.
Thi/rd — Plaintiffs John Drynell, Charles W. Newman, and Samuel Doalce, purchased interests in said grounds subsequently to the 9th day of November, 1861.
Fourth — On the 9th day of November, 1861, plaintiffs Hamilton and Burke and Robert A. McLellan, made and entered into an agreement in writing, a copy of which is made a part of the answer of defendants.
Fifth — On the 25th day of November, 1861, said Robert A. McLellan transferred and assigned to defendant Isaac L. Requa, one-fourtli interest in said agreement, and conveyed a like interest in the quartz mill and machinery in said premises; and on .the 6th day of October, 1862, said McLellan conveyed an undi*50vided three-fourths of said mill and machinery to defendant John Kneeland.
Sixth — On the 5th day of February, 1864, said John Knee-land leased three-fourths, undivided, of said mill and machinery to Robert Carson; and on the 1st day of March, 1864, said Carson transferred and assigned said lease to intervenor, E. R. Kenyon.
Seventh — Said E. B. Kenyon holds a mortgage and debt against defendant (Kneeland), as set out in the intervention herein.
Eighth — Said Carson and Kenyon went into possession of' Kneeland’s interest after the bringing of this suit, and with full knowledge of its pendency.
Ni/nth — The mill referred to in said contract between Hamilton and Burke and McLellan, was commenced in December, 1861, and completed in the latter part of October, 1862.
Tenth — The shaft mentioned in said agreement, was sunk to the depth of two hundred and fifty-seven and seven-twelfths feet from the surface of the ground after the ground was graded, and a drift run easterly from said shaft about one hundred and twenty-five feet, crossing a ledge of pay rock about ten feet wide, and running about twenty-five feet beyond the ledge. The bottom of said drift was two hundred and forty-six feet below said surface. This work was done about a month before the mill was completed.
Eleventh — The pumping mentioned in said agreement started when the shaft was at the depth of one hundred and fifty feet, and ceased directly after the completion of the drift. At that time it was agreed by Burke and McLellan that the pumping-might cease until the mill should be finished. There was no understanding that the pumping should stop altogether. It was impossible to work the ledge without pumping to keep the mine free from water, and for this purpose steam machinery was necessary. Kneeland went into possession of the mill with Requa about the 1st of December, 1862. There was then about twenty-five feet of water in the shaft, and enough in the drift to prevent work. In that month and in the following January, February, and March, plaintiffs demanded that defendants should pump out the shaft,-so that the ledge might be *51worked, but defendants'positively refused. They were after-wards frequently requested to go and pump, but never did so.
Twelfth — Plaintiffs offered.to furnish, ore if defendants would pump out the mine. If the mine had been pumped out there could have been more than sufficient ore taken from it to supply the mill constantly to the extent of five thousand tons.
Thirteenth — Notice Us pendens was duly filed in the office of the Comity Eecorder of Storey County, on the 24th day of December, 1863.
Fourteenth — Plaintiffs demanded possession of the ground in controversy on the 28th day of December, 1863.
I find, as conclusions of law, from the foregoing facts, that by reason of the non-performance of the contract between Burke and Hamilton and McLellan, on the part óf McLellan and these defendants — Lis assignees — said defendants had, before the commencement of this action, lost the right of possession of the disputed premises, and that the plaintiffs are entitled to the relief prayed for in their complaint.
A motion for new trial having been made and denied, the defendants appeal, assigning numerous errors, only four of which are relied upon in this Court, which are:
First — That the referee erred in holding tliat a refusal on the part of the defendants to pump out the mine at the time, and under the circumstances, was a violation of the written agreement between Burke and Hamilton and McLellan.
Second — In holding that such violation of the contract worked a forfeiture.
Third — 1 n holding that the terms of the contract were conditions and not covenants.
Fowrth — In holding that the assignees could claim a forfeiture of defendants’ rights under the contract upon breach of condition.
If the agreement between Burke and Hamilton and McLel-lan is uncertain as to when the pumping by McLellan should commence, the intention of the parties to it, which is of controlling 'force when ascertained, should govern. (2 Parsons on Contracts, 6; Id. 11.) The conduct of the parties, the objec't which they had in view in entering into the agreement, and' the manner in which they carried out this provision *52of it, establishes 'the fact beyond, a peradventure that the pumping was ’to be done by defendants at the time the shaft was being sunk, if necessary. And, indeed, it appears that no misunderstanding upon this point arose between the parties until the shaft had been sunk to its required depth, the ledge struck, and plaintiffs were ready to take out the ore.
But should the defendants’ interpretation of this agreement be adopted, that is, that it was not their duty under it to pump the water from a prospecting shaft but only from the mine, it is equally fatal to their case, because it was the mme which they refused to pump, and that too when the plaintiffs were fully prepared to take out the ore.
"Whatever difference of opinion there may exist as to the duty of the defendants to pump the water from the shaft, none can exist as to their duty to keep the mme free from water. The instrument itself is explicit upon the point. It provides: “ That the said party of the second part shall furnish the motive power at the mill, and machinery to hoist the ore from the said mine as aforesaid, and shall also furnish the pump and necessary machinery, cmdpump from thesand mine the water, so as to Ice&p the same constcmtVy freed of water, so that the said, mim,mg groimd mid claims cam, he safely a/nd comvenienthj worked.”
This was not done ; but it seems the defendants persistently refused to pump out the mine after the ledge was struck in the lower drift. And the referee finds that “ it was impossible to work'the ledge without pumping to keep the mine free from water.” By this refusal on the part of the defendants to perform their agreement in this particular, the very object for which the agreement was entered into by plaintiffs, that is, the development of their mine, was entirely defeated.
When the pumping was stopped for the benefit of McLellan, as it appears, and the mine in consequence thereof filled with water so that it could not be worked, for him and his assignees persistently refused to pump it, because, as it is claimed by them, it is not their duty to pump the mine until rock, is furnished to them, is an exhibition of bad faith, to say the least of it, which should receive no favor in a Court of Justice.
But did the violation of the agreement by the defendants *53work a forfeiture, of their rights or the estate which they acquired under it ? If the estate which the defendants acquired in the premises was upon condition, the breach of the condition will work a forfeiture of the estate; but if the stipulations of the agreement are to be construed as covenants and not conditions, then the plaintiffs have mistaken their remedy, and they must fail. After the erection of the mill upon the premises by McLellan, it is clear that he had an interest in the land, and I think it equally clear that that interest was an estate upon conditions.
Chancellor Kent, vol. 4, p. 125, says: “Estates upon condition are such as have a qualification annexed to them by which they may, upon the happening of a particular event, be created or enlarged, or defeated.” After speaking of conditions in law, he says of conditions in deed: “ These conditions are expressly mentioned in the contract between the parties, and the object of them is either to avoid or defeat an estate, as if a man, to use the ease put by Littleton, enfeoffs another in fee, reserving to himself and his heirs a yearly rent, with an express condition annexed, that if the rent is unpaid the feoffer and his heirs may enter and hold the land free of the feoffment. So if a grant be to A in fee, with a proviso, that if he did not pay twenty pounds by such a day, the estate should be void, and the grantor or his heirs may enter and take advantage of the breach by ejectment, though there be no clause of entry." Id. 127.
Conditions which will work a forfeiture of an estate, it is true, are not favored, and will not be readily implied; but the estate created in McLellan is so unmistakably upon condition, that we could not hold otherwise without disregarding the plain letter of the agreement and the evident intention of the parties. This agreement provides: “ That, whereas, the said Hamilton and Burke are the owners of the mining ground and claims of forty feet in width, part of the so-called ‘ Sabins ground,’ in said G-old Hill, and being bounded on the northerly side by the mining ground of W. H. Irwin, and on the southerly side by the mining ground of Stewart, Kirkpatrick, and Churchill; and, whereas, said parties have agreed that said party of the second' part may erect a steam quartz mill pf sixteen stamps on said *54mining ground, for tbe working and reducing of five thousand tons of ore, to be taken from said mining claims and ground, on certain terms <mcl conditions.”
The only rational and grammatical construction which can be put upon this language, is that McLellan was to have the. privilege of erecting a steam quartz mill on the plaintiffs’ premises, upon “the terms and conditions” which are specifically mentioned in the agreement itself, one of which was that he would “ pump from the said mine the water, so as to keep the same constantly freed from water, so that the said mining ground and claims can be safely and conveniently worked.”
Again, no precise words are required to create a condition. (2 Parsons on Contracts, 89.)
“ Indeed,” says the same author, “ Courts seem to agree of late that the decision must always depend upon the intention of the parties, to be collected in each particular ease from the terms of the agreement itself, and from the subject matter to which it relates. It cannot depend upon any formal arrangement of the words, but on the reason and sense of the thing, as it is to be collected from the whole contract.” But here we have the exact words to create a condition. (Gray v. Blanchard, 8 Pick. 283.)
And the evident intention of the parties, as shadowed forth in the entire instrument, harmonizes with these words.
Unless we believe that Burke and Hamilton intended to permit the erection of the mill in question on their premises, and to permit its continuance there, regardless of whether McLellan should perform his part of the agreement or not, the conclusion is irresistible that they only intended to permit it upon the conditions mentioned in the instrument itself. . That would be the only advantage which they could possibly derive from the location of the mill upon their premises, and it is not reasonable to suppose that they intended to permit the defendants to enjoy the premises except upon the performance of their part of the contract.
It is urged, though, by the defendants, that a breach of conditions cannot be taken advantage of by a stranger. But •Burke and Hamilton themselves are claiming this forfeiture, and the fact of their having conveyed a certain interest in the *55premises to strangers, who are joined with them as plaintiffs, surely should not deprive them of the right of taking advantage of the breach of conditions.
But this rule of the common law, that a condition cannot be reserved to any but the grantor and his heirs, I think has never been recognized as the law in this country, and it was completely overturned in England by the statute 32, Henry VIII., C. 34, which permitted grantees of reversions and privies in estate to take advantage of the breach of condition (4 Kent’s Commentaries, 126 ; 2 Cruise Digest, p. 4, sec. 16); and in adopting the common law of England in this country, it seems to be the established doctrine that it. is adopted as amended or altered by English statutes in force at the time of the emigration of our colonial ancestors. (1 Kent, 473; Sackett v. Sackett, 8 Pickering, 309; Patterson v. Winn, 5 Peters, U. S. Rep. 233.) With this view of what constitutes the common law of this country, I am of opinion that the grantees of Burke and Hamilton could take advantage of the breach of condition by the defendants.
Por these reasons we think the-judgment below should be affirmed. *
[Justice Beatty having been engaged as counsel below, did not sit.]