concurring:
While I concur in the order of reversal, I cannot agree with the interpretation put upon the contract in question by the court, as expressed in the following language:
" For the maker of a mining location to declare that the territory embraced within the lands of his location was nonmineral in character would be equivalent to declaring his location to be null and void, and his right to possession, use, or occupancy of the public domain under the laws of the land would automatically cease.”
In my opinion, there is not one word in the contract to justify this construction. Whether the mining claims mentioned in the contract were located as lode mining claims or as placer claims, for oil or other minerals, does not appear. It is a well-known fact that there have been many thousands of acres of land located and patented as mineral or nonmineral that might have been, with propriety, located and patented as of the other class. In some instances land has been held to be mineral by the courts and agricultural by the land department, both tribunals acting upon substantially the same evidence. A striking example of this was brought to our attention in the recent case of Earl v. Morrison, 39 Nev. 120, 154 Pac. 75. Suppose in that case the locator under the scrip (who finally prevailed), realizing the delay, enormous expense, and other inconveniences incident to prolonged litigation both in the courts and before the land department, had entered into an agreement with the placer locators, whereby it was agreed that they should cancel their scrip locations and permit the placer locators to proceed to patent without contest, upon the condition that the placer locators might work the land for mineral, and that the scrip locators might cultivate it, each so operating as not to interfere with the other, and that after all the mineral was exhausted the land should be conveyed in fee to the scrip locators, would any one say that there would be no consideration for the canceling of the scrip location? I think not.
Suppose Jones and associates should locate a tract of *53land as a placer claim for the purpose of mining for oil. The land has all the indications that oil can be found by prospecting. They are all poor men. Shortly after the oil locations are made, Brown and associates, men of wealth, come along and say to Jones and associates:
"The land which you have located for oil will grow fine alfalfa, and there is a large stream of water near by with which it can be irrigated. .We are going to town and enter the land under the Desert Act and appropriate the water for irrigation purposes. Now, we do not care for the oil, and, if you will abandon your locations for oil, we will patent the land under the Desert Act and enter into a contract with you that you may go upon the land and prospect for oil as soon as we get our patent, and that your operations shall be without hindrance from us. ”
Jones and associates, having no money with which to litigate, and knowing that some of the best agricultural land in the world produces the highest quality of oil, accept the proposition, abandon the placer location, and Brown and associates procure their patent. Jones and associates go upon the premises, put down a well, and get oil. Brown and associates eject them. Would any one say that Jones and associates would have no remedy? What is the difference between the supposed case and the one at bar?
We will suppose another case. John Smith, a poor prospector, with barely sufficient resources to maintain his existence while developing his property, locates ground as a placer mining claim, which has all the indications to justify its location as such, and ninety days thereafter opens up within its boundaries a true fissure vein of high-grade gold ore. Three days after opening up this fissure, John Doe, a wealthy man, goes upon the property and locates the fissure vein in his own name. John Doe goes to John Smith and says:
"The vein which I have located on your placer was a 'known vein’ at the time you located your placer claim, though you may not have known of its existence. It having been a known vein, you cannot hold it under your *54placer location; but I do not want a lawsuit with you. Now, if you will abandon your placer location so that I can perfect patent to my lode location without litigation, I will give you an undivided one-third interest in my lode claim.”
Smith, being a poor man, accepts the proposition, and a written agreement is entered into accordingly, whereupon the placer location is abandoned and a relocation of the lode claim, so as to take in all the ground allowed by law, is made by Doe, and the claim is patented in his name. But thereafter he refuses to acknowledge any rights in John Smith because he had abandoned his placer location to enable Doe to acquire title to a valuable lode claim. Is it not clear that a court of equity would compel John Doe to do equity? We think it is. So far as appears in the record, the case at bar is not materially different from either of the supposed cases.
I cannot agree with the view expressed that the agreement entered into between the parties indicates a joint adventure. A joint adventure is nothing more nor less than a partnership limited to a single transaction. In other words, to constitute a joint adventure there must enter into the undertaking the elements of a partnership, such as a sharing of the losses and of the profits. There is nothing of that kind in this case. While respondent was to assist in promoting the project, she was not to. participate in the profits. She was to receive a monthly payment which was not made contingent upon there being profits.
As to the position taken in the opinion of the court, that the contract is void because it was impossible to complete performance, I need only to say that there is no doubt but that the contract is incapable of performance according to its letter, for the reason that no land withdrawn pursuant to the terms of the Carey Act can be sold by the state, and not for more than $1 per acre. When we consider this fact, and the .further fact that in projects of this character the law permits the promoter *55to sell to the purchasers of land a perpetual right to water to be appropriated for use upon the land, we are inevitably forced to the conclusion that it was the intention of the parties that the right to the payment in question should turn, not upon the sale of 160 acres of land, but upon the sale of a water right for 160 acres of land.
If we were to undertake to ascertain the real intention of the parties to the contract, I think we might take into consideration the subject-matter of the contract, the existing federal and state statutes, the situation of the parties at the time of its execution, and all other surrounding facts and circumstances. If this view is correct, the question arises as to whether or not the contract is capable of reformation so as to be made to read in accordance with the intention of the parties.