(dissenting in part).
I agree with my colleagues that a case for reformation was not made out, since the defendants appear to be bona fide purchasers for value without notice of a mistake in the deed which plaintiff had given to a former purchaser. However, I disagree with the holding that plaintiff is bound to include in his selection the 40 acres described as the SW}4SWi4 of Section 35.
The reservation of 80 acres contained in the deed from Ralph W. Holland, Sr., to Vowers Farms, Inc., clearly states the 80 acres shall include “those portions” of the SWl4SW}4 of Section 35 and the SEJ4 NE14 of Section 34 “lying northerly” from the Laramie River. The question therefore is whether there is a “portion” of the SW⅛ SWJ4 of Section 35 lying northerly from the Laramie River. If so, that portion must be included. If not, no portion of such 40 acres needs to be included.
The most apparent thing about the SW54SW}4 of Section 35 is that all of it lies south or southerly from the Laramie River. If all of it lies southerly from the river, it would be a contradiction to say the 40 acres lie northerly from the river— within the meaning of the reservation we are dealing with.
All of that part of the Laramie River which goes through Sections 34 and 35 is north of the SWJ4SWJ4 of Section 35. Thus, this 40-acre tract is definitely southerly from the part of the river which flows through Sections 34 and 35.
Moreover, the part of the river which flows through Sections 34 and 35 is the only part of such river in close proximity to the SW54SW14 of Section 35. It is true that several miles to the southwest the river flows in a northwesterly direction. It then bends to the northeast and finally flows through Sections 34 and 35 in a northeasterly direction. In a certain sense the SW14SWJ4 of Section 35 lies northerly from that part of the river which is to the southwest and out of the area we are concerned with.
Inasmuch as the SW14SW14 of Section 35 is south and not north of that part of the river closest to it, and inasmuch as such parcel is south and not north from the part of the river where Holland was reserving his 80 acres, we ought to say the reservation necessarily refers to the part of the river crossing the lands involved. It is unreasonable to assume the reservation refers to a more remote part of the river.
My colleagues really should agree with me that their holding is untenable, if they will only stop to consider that all of the south portion of the SEJ4NEJ4 of Section 34 is northerly from the Laramie River in the same sense and in the same way the SW}4SW}4 of Section 35 is. Yet the plaintiff is not required to include in his selection the south portion of the SEJ4 *54NEJ4 of Section 34. Surely it is unreasonable to assume that one part of the riyer applies to one 40-acre parcel and that a part several miles removed applies to the other 40-acre parcel.
■ I concur in all my colleagues have said, except they should not, in my opinion, say plaintiff will he bound to include in his selection the SW14SW14 of Section 35.
The appended plat is a reasonably accurate representation of the course of the Laramie River in relation to the SWJ4 SW}4 of Section 35 and the SE14NE14. of Section 34; also in relation to the SW{4 NW14 of Section 35, which plaintiff-Holland claims should have been referred to in his reservation instead of the reference to the SW14SW14 of Section 35.
*55APPENDIX
