Kister v. Reeser

98 Pa. 1, 1881 Pa. LEXIS 113

• Court: Supreme Court of Pennsylvania
• Decided: June 20, 1881
• Status: Published

Opinion

Mr. Justice Trunkey

delivered the opinion of the Court,

William Reeser, by deed dated September 30th 1865, conveyed to Drorbaugh part of a tract of land which he then owned, and Drorbaugh’s title has been vested in the plaintiff. The deed contains this clause: “ The said William Reeser doth reserve a road ten feet wide along the line of Joseph Burger, to be shut at each end with a bar or gate.” Prior to the conveyance there was neither a public nor private road over the land. The owner in fee of land may travel over it when and where he pleases, and it would be vain to speak of his right of way within his lines. William Reeser died in 1872. The court properly treated the question as one of law; for, aside from the conceded facts, there was no evidence to affect the construction of the deed or clause of reservation. If that clause is an exception of land ten feet wide, next to Burger’s line, the plaintiff was not entitled to recover. But if it is a reservation of a way over said land, the defendants were trespassers. The land was granted in fee and a road reserved next Burger’s line. This was to be shut at each end, and, subject to the grantor’s use for a road, the grantee could enjoy it for all purposes. The word road has never been defined to mean land ; it is difficult to find a definition which does not include the sense of way, though the latter word is more generic, referring to many things besides roads. Road is generally applied to highway, street, or lane, often to a pathway, or private way, yet strictly it means only one particular kind of way. Its sense in this deed is very clear. Taking the entire clause, with reference to the grant, it means the reservation of a way. This is as plain as if the word way were in place of road. Lawyer and layman alike would understand the word road in this clause in the- same sense as it is used in the statutes providing for grant of “ private roads.” A private road, obtained by proceedings under those statutes, is a mere way, the owner of the way having no interest in the land.

A private way is an incorporeal hereditament of a real nature, entirely different from a common highway; it is “ the right of going over another man’s ground.” Where land is granted and the right of way reserved, that right becomes anew thing, derived from the land; and although, before the deed, the grantor had the right of way over the land whenever he chose to exercise it, yet when he conveyed the land the reservation was a thing separated from the right of the grantee in the land : State v. Wilson, 46 Me. 9. A reservation is"the creation of a right or interest which had no prior existence as such in a thing or part of a thing granted. It is distinguished from an exception in that it is of a new right or interest. An exception is always of part of the thing granted, it is of the whole of the part excepted. A reservation may be of a right or interest in the particular part which it affects. These terms are often used in the same sense, the technical distinction being disregarded. Though apt words of reservation be used they will be construed as an exception, if such was the design of the parties. Thus, when a deed in fee of land was made, the grantor “ saving and reserving, nevertheless, for his own use the coal contained in the said piece or parcel of land, together with free ingress and egress by wagon-road to haul the coal therefrom as wanted,” it was held that the saving clause operated as an exception of the coal. The coal was land and the reservation of that part of the laud excepted it from the grant. It was a thing corporate, existed when the grant was made, and differed from something newly created, as a rent or other interest strictly incorporeal: Whitaker v. Brown, 10 Wright 197. Here, the saving clause created the way over part of the laud granted, a right strictly incorporeal, and is not an exception of part of the land contained in the grant.

Judgment reversed, and venwefacias de novo awarded.