because of them. The evidence shows that at the time the statements were made he was very weak and was suffering intense pain. The evidence of Little that Williams stated to him that he would outlive his enemies is not necessarily in conflict with that given by the sheriff and the chief of police. The record shows that Little conversed with him soon after-almost immediately after-he arrived at the emergency hospital. At that time Williams may have believed there was a chance for him to recover. The evidence

shows, however, that later on he gave up all hope of recovery, and became convinced that he could not long survive, and that he was in that state of mind when he talked with

Sheriff Corless.

In the case of Commonwealth v. Brewer, 164 Mass. 577, 42 N. E. 92, the court said:

"The dying declarations of Latimer were admissible. The evidence was clear that they were made under a sense of impending death. Just before they were made both the attending doc

tors had told Latimer that there was no chance of him recovering. His exclamation in answer, 'Oh, my God, must I die!' and his later request, 'Give me some water, if I have got to die,' imply an acceptance of the fact."

death."

We think that under the circumstances the preliminary proof-the evidence of the state of mind the deceased was in respecting the fatal character of his wounds and his conviction that he could not long survive-was amply sufficient to authorize the admission in evidence of the declarations, provided they Ev. (9th Ed.) § 284. were otherwise competent. Wharton, Crim.

[4] There is a conflict of authority respecting the admissibility of a statement by a victim of a homicide that the act was committed without provocation. We think the weight of recent authority, and the better rule, is that such statement, when made under the conscious sense of impending death, is admissible as a dying declaration.

In Wharton on Homicide, § 629, the author says:

"The prevailing rule is that a declaration that a killing was done without provocation, or without reason, or for nothing, constitutes a statement of fact, and is admissible as a dying dec

laration."

Again, in the same section:

"So, a statement that the shooting was willful and malicious is not objectionable as a mere statement of opinion, when the testimony tends

"The declarations, reduced to writing as dying declarations, were properly admitted. He stated that 'he believed he would soon die.' The physician who attended him said that the 'deceased was very low, and that he did not think he would live many hours.'"

These cases are cited by counsel for appellant in support of their contention that the evidence in the case at bar was not sufficient to show that the declarations made by Williams were made under the conviction on his part that he was about to die. The evidence of the sheriff, however, is that Williams stated he "knew he was going to die." We think the only fair conclusion permissible from this statement, considered in connection with the circumstances and conditions under which it was made, is that deceased was convinced that he was about to die from the effects of the gunshot wounds he had received. The evidence that the deceased had a conscious sense of impending death when he made the declarations referred to is stronger and more convincing than it was in either of the cases above cited.

[3] The rule, we think, is correctly stated by the Supreme Judicial Court of Massachusetts in Commonwealth v. Roberts, 108 Mass. 296, as follows:

"The admissibility of such declarations does not depend upon any particular forms of ex

edge of the deceased upon which he might have based an opinion to that effect."

In the case at bar the evidence shows that the facts and circumstances attending the shooting were practically all known to the deceased, and there is abundant evidence to the effect that it was without cause or provocation.

In 21 Cyc. 988, it is said:

2

"A dying declaration by the victim of a homicide that the act was without provocation, or words of like import, although very general, is, as a rule, held admissible as the statement of a Words & Phrases, Second Series, 206; State v. collective fact and not a mere conclusion." Mace, 118 N. C. 1244, 24 S. E. 798; State v. Saunders, 14 Or. 30, 12 Pac. 441; State v. Lee, 58 S. C. 335, 36 S. E. 706.

[5] In the case at bar the evidence shows that immediately after the homicide the deceased was taken to the emergency hospital and died within three hour thereafter. The statement he made to Sheriff Corless that McNair shot him without cause was made after the doctor had treated him for his wounds, and after Little had conversed with him, and but a short time before he signed the written statement referred to. In the written statement the facts relating to the shooting, as the deceased claimed them to be, are set forth in detail, and they conclusively

rights in the premises for a term of two years.

The controversy between the parties arises over the provisions of the deed from Hays to Earl, and the effect of the reservations made therein by Hays.

The case was tried to the court without a jury. From a judgment and decree in favor of the respondents an appeal is taken by appellant upon the judgment roll. No bill of exceptions was taken or filed. The trial court found:

"(1) That on the 10th day of August, 1915, the defendant Stephen Hays was, and for a long time prior thereto had been, the owner, in possession, and entitled to the possession, of the property situate in the West Mountain Mining District, county of Salt Lake, state of Utah, consisting of approximately 3.45 acres, [Describing 3.45 acres,

described as follows: more or less.]

"(2) That on said 10th day of August, 1915, said defendant Stephen Hays, with his wife, by quitclaim deed conveyed to the defendant George C. Earl said property and premises above described, subject to the following reservations and provisions: That in and by said deed of conveyance said grantors expressly reserved to themselves, their heirs and assigns, the right to all ores in and underneath the surface area of the property so conveyed, together with the right to mine and remove the same, with the proviso that the mining operations should not endanger any building or buildings or improvements then or thereafter erected on the following described portion of the surface area of said property so conveyed, by reason of sinking or caving of the surface of said area caused by such mining operations, to wit: [Describing a small area, rectangular in form, 236 feet in length, 100 feet in width, within the 3.45-acre tract.] That said grantors in and by said deed also reserved the right to use any wagon road which might be constructed in the future by said grantee over said property so conveyed.

"(3) That the grantee in said deed, the defendant George C. Earl, in obtaining and taking said deed, was acting for and on behalf of the defendant Utah Copper Company, and thereafter, and on the 10th day of August, 1915, conveyed said property to the defendant Utah Copper Company.

"(4) That at the time of the conveyance by the defendant Stephen Hays to the defendant George C. Earl, and for a long time prior thereto, the said premises conveyed as aforesaid were known to be valuable for the ores and metals therein contained, and particularly for copper ore; also known that ore of marketable and economic value had been found and was contained at many places in said premises so conveyed at and immediately underneath the surface area thereof; also known that mining operations had theretofore been carried on in said premises by employing surface as well as underground methods of mining; also known at the time said deed was made that in the vicinity of said premises so conveyed the method generally adopted for mining low-grade copper ore was by taking out and removing all the material from the surface downward, and shipping whatever thereof would justify shipping for the min

eral contents therein contained; that said surface process of mining ore was, at the time of making of said deed, carried on successfully by the defendant Utah Copper Company at its mine in said mining district in close proximity to the premises conveyed by the defendant Stephen Hays to the defendant George C. Earl; that said surface method of mining was and is the practical and more economic method, and the only method by which the mining of ores such as exist at or immediately underneath the surface of the ground conveyed by Stephen Hays to George C. Earl can be successfully and profitably carried on.

"(5) That at the time said defendant Stephen Hays conveyed said premises to the defendant George C. Earl it was the intention of the parties to said deed, in respect to said reservation therein contained, that by said reservation the grantee therein, the defendant George C. Earl, thereby relinquished and waived any right whatsoever to subjacent support of the surface of said premises so conveyed in respect to any mining operations thereafter carried on by the grantor, said defendant Stephen Hays, his heirs and assigns, except only in respect to said portion thereof, being said rectangular strip of ground 236 feet in length by 100 feet. in width, hereinbefore described, and included within the area conveyed as aforesaid.

"(6) That after the making of said conveyances the defendant Utah Copper Company excavated said rectangular strip aforesaid for the purpose of erecting buildings thereon, and removed the material so excavated to other portions of said premises so conveyed, making two dumps, and supported the same in part by cribbing, and used a portion of one dump to support a retaining wall constructed by it; that the quantity of material so removed was very great; that said material had economic and commercial value for the minerals therein contained, particularly copper; that when said rectangular strip had been excavated the defendant Utah Copper Company erected thereon a retaining wall, and constructed five substantial houses in a row, three of them being situate wholly within the boundaries of said rectangular strip, one partly within and partly without and also continued said retaining wall on said said strip, and one entirely off of said strip, premises so conveyed beyond the boundaries of said rectangular strip or building area.

"(7) That after said rectangular strip had been excavated and built upon by the defendant Utah Copper Company, and on the 25th day of January, 1916, the defendant Stephen Hays, by an instrument in writing, granted, demised, and let to the plaintiffs herein, for a term of years from said date, that certain mine and mining property, including all the premises conveyed by the said Stephen Hays to the said George C. Earl, upon the condition that in mining said premises the said lessees should not endanger any buildings on said premises or improvements thereon, and should in all respects abide by and conform to the restrictions upon said mine contained in said deed from said Stephen Hays to said George C. Earl; that in and by said lease said lessors, the plaintiffs herein, agreed, among other things, to commence work upon said mine, working the aforesaid premises steadily and continuously from the date of said lease, and to pay and deliver

We are of the opinion that the decree is amply supported by and conforms to the pleadings-the amended complaint of the plaintiffs and the answer of the defendant Stephen Hays. The findings of fact closely follow and conform to the allegations of the amended complaint. The judgment and decree is amply supported by the trial court's findings. We cannot do otherwise than assume that the findings are true and are supported by the evidence. Hulse v. Swicegood, 49 Utah, 89, 162 Pac. 89; Swanson v. De Vine, 49 Utah, 1, 170 Pac. 872; Roberts v. Bertram, 49 Utah, 280, 163 Pac. 787; McGuire v. State Bank, 49 Utah, 381, 164 Pac.

494.

As we view the case on appeal, the only question to be determined by this court is whether or not, as a matter of law, the de

cree of the district court is to be sustained. The quitclaim deed from Stephen Hays to George C. Earl, appellant's grantor, contained these provisions:

"Said grantors hereby reserve to themselves, their heirs, successors, and assigns, the right to all ores in and underneath the surface area hereinbefore described, together with the right to mine and remove the same, provided said mining operations of said grantors shall not endanger any building or buildings or improvements now or hereafter erected on a portion of the surface, as hereinbefore described, by reason of sinking or caving of the surface of said area caused by said mining operations, said portion being described as follows, to wit: [Describing strip 236 feet in length by 100 feet in width.]

"Said grantors also reserve the right to use any wagon road which may be constructed in the future by said grantees over the 3.45 acres of ground firstly described herein."

[3] Counsel contend that under the deed the estate vests in the appellant as the grantee of Earl, and that it acquired the fee and has the right to build houses or make other improvements upon the land anywhere and everywhere as it sees fit; that the reservations made in the deed render the grant nugatory and void; citing 13 Cyc. 675; Brewster, Conveyancing, 126. Counsel also contend that the decree as rendered erroneously denies appellant not only the right of subjacent support for its buildings, etc., but also denies the right of subjacent support for the soil in its natural state. Numerous authorities are cited in support of this contention, among them: Weight v. Bailey, 45 Utah, 584, 589, 147 Pac. 899; Walsh v. Fuel Co., 91 Kan. 310, 137 Pac. 941, 50 L. R. A. (N. S.) 686; Weaver v. Coal Co., 216 Pa. 195, 65 Atl. 545; Coal Co. v. Kearney, 114 Md. 496, 79 Atl. 1013; Costigan, Mining Law, pp. 504, 505; Ericson v. Iron Co., 50 Mich. 604, 16 N. W. 161; Williams v. Gibson, 84 Ala. 228, 4 South. 350, 5 Am. St. Rep. 368; Paull v. Coal Co., 44 Ind. App. 218, 88 N. E. 859.

While the great weight of authority seems to support the theory of appellant as to the

construction ordinarily to be placed upon grants of real property, we are not prepared to say that the cases are applicable to the case at bar.

The evidence not being before us for review, we must presume that the trial court in construing the deed from Hays to Earl, placed itself in the situation of the parties at the time of the execution and delivery of the deed. It is apparent from the findings of the trial court that, in order to enable it to do so, testimony was received in that regard.

"In construing private conveyances it is apparent that each case must be decided upon the language of the grant or reservation, the surrounding circumstances, and the intention of the grantor, if it can be ascertained." L. Lindley, Mines (3d Ed.) § 93, p. 153.

is that the words "mining operations," as If we understand appellant's contention, it used in the reservation, is confined to subterranean mining or operations beneath the surface. Assuming, without deciding, that the language employed in the deed is susceptible of that meaning, standing alone, yet, in a proper case, the trial court may receive testimony to establish that the intention of the parties was otherwise. Daly v. Old, 35 Utah, 74, 99 Pac. 460, 28 L. R. A. (N. S.) 463; 27 Cyc. 685.

In the case of Nephi Plaster Co. v. Juab County, 33 Utah, 114, 93 Pac. 53, 14 L. R. A. (N. S.) 1043, where similar terms are constru ed, Mr. Justice Frick, speaking for this court,

says:

"From an examination of a large number of cases we are convinced that the foregoing is a fair deduction of the law upon the subject as declared by the modern decisions, both of England and this country. From the foregoing it thus seems clear to us that where we find the terms 'mines and minerals' used in grants or in reservations, in instruments of conveyance, in statutes or constitutions, under the modern construction the former is not limited to mere subterranean excavations or workings, nor is the latter limited to the metals or metalliferous deposits, whether contained in veins that have well-defined walls or in beds or deposits that are irregular and are found at or near the surface or otherwise."

We think that, necessarily, a distinction must be made as to the construction to be placed upon grants and reservations made in deeds of conveyance where mineral rights are involved, according to the nature of the deposits, the kind of mineral, and the position it occupies in the natural formation in which it is found.

In the case at bar the trial court found that the defendant Hays was the owner, subject to the lease of the plaintiffs, of "all the ores and minerals in and underneath the surface" of the area conveyed to Earl; that at the time of the conveyance it was known that the premises conveyed contained valuable ores and metals of marketable value;