Pritchard v. Lewis

104 N.W. 989, 125 Wis. 604, 1905 Wisc. LEXIS 205

• Court: Wisconsin Supreme Court
• Decided: October 3, 1905
• Status: Published

Opinion

KebwiN, J.

1. The first and important question for consideration is, What title passed by the deed of November 11, 1872, from Evan Jones and wife to Owen P. Pritchard? The two deeds from Jones to Lewis and Pritchard upon their face indicate that they were executed upon the same day. The deed to Lewis in plain terms excepts and reserves the two rods for a right of way, not a right of way over the two rods, but “a strip of land two rods in width off the north side thereof, to be used as a right of way,” which quite plainly imports that the fee was intended to be reserved. Cincinnati v. Lessee of Newell's Heirs, 7 Ohio St. 37. The language used is in form an exception and reservation. A marked distinction exists between the terms “exception” and “reservation” as used in deeds; the distinction .being that a reservation is something taken back from the thing granted, while an exception is some part of the estate not granted at all. Rich v. Zeilsdorff, 22 Wis. 644; Fischer v. Laack, 76 Wis. 313, 45 N. W. 104. True, the terms “excepting” and “reserving” are often used indiscriminately, and sometimes in .a deed what purports to be a reservation has the force of an exception, when such appears to be the clear and obvious intention of the parties. 2 Devlin, Deeds, § 980; Fischer v. Laack, supra; Gould v. Howe, 131 Ill. 490, 23 N. E. 602. The deed to Pritchard is a warranty deed, conveying by metes, and bounds the strip of land in question, referring to it as “being the same premises described as a right of way two Tods -wide, reserved by said parties of the first part in a deed this day executed by them to one John G. Lewis;” and it further excepts and reserves the timber situated upon said strip, with the right of the grantor to go arpón the land and remove .said timber for the term of ten years.

It is contended on the part of the respondents that the language of the deed to Lewis, excepting and reserving the premises for a right of way, shows upon the face of the deed that the fee was not reserved, but only a right of way, and that, while the deed to Pritchard was an absolute conveyance of the premises by metes and bounds, still the reference to the Lewis •deed made it a part of the Pritchard deed, and constituted notice to Pritchard that only a right of way was reserved; and, the fee having passed to Lewis, Pritchard only got by his deed the right of way reserved in deed to Lewis. This argument is based upon the theory that the fee passed to Lewis. Hence grantor Jones could only convey in his deed to Pritchard the remaining estate in him, which was only a right of way. The court below held, in a written opinion filed, that the reservation to Jones in deed to Lewis and subsequent grant to Pritchard was of an easement merely, and that the deeds were not so ambiguous as to require parol evidence “to aid their interpretation; and the argument of counsel for respondents here is grounded upon the assumption that the ■deed to Lewis upon its face conveyed the fee and reserved the. right of way only, and cannot be aided by extrinsic evidence, and several cases are cited upon this proposition, which will be considered.

Winston v. Johnson, 42 Minn. 398, 45 N. W. 958, is a case where it was held that the words “excepting and reserving” in a deed constituted a reservation and not an exception. JBut a careful examination of this case will show that it did not turn altogether upon tbe words of tbe deed, but upon the-intention of the parties as gathered from their acts, the surrounding circumstances, as well as the physical condition of' the property and the practical interpretation of the reservation by the grantee. In Bolio v. Marvin, 130 Mich. 82, 89 N. W. 563, there was no express reservation, the language being, “saving and preserving, hoivever, from the operation hereof, the road running along the southerly line of said parcels,” etc.; and there the court recognizes the well-settled doctrine that the intention of the grantor is to be gathered from the whole instrument, and says (130 Mich. 83, 89 N. W. 563):

“There was not the slightest occasion to include this land in-the deed unless some interest was intended to be vested in the-grantee.”

The court also refers with approval to Reynolds v. Gaertner, 117 Mich. 532, 76 N. W. 3, where the words used were-held to create an exception and not a reservation, and says (130 Mich. 84, 89 N. W. 563):

“But the language employed in the deed construed in thafr case is very different from that which we are now construing. In that case the language was, ‘except two and forty-six hundredths acres to the Chicago & Canada Southern Railroad.’ ”'

In Wellman v. Churchill, 92 Me. 193, 42 Atl. 352, the-language of the deed was, “with the reservation of a road two rods wide over the northerly side of said lot.” There the-language plainly indicated a reservation, and not an exception, and the court refers to the distinction between exception- and reservation and says (92 Me. 195, 42 Atl. 353):

“Exception is always a part of the thing granted, and of a-thing in being; and a reservation is of a thing not in being,, but is newly created out of the land and tenements devised, though exception and reservation have often been used promiscuously. Co. Litt; 47a. A construction given to a clause.called a reservation is that it is an exception if it falls within that definition, and if such was the design of the parties.”

Elliot v. Small, 35 Minn. 396, 29 N. W. 158, is where tbe clause was in form a reservation and not an exception, and was a reservation for a public street. In this case much stress is placed upon tbe apparent intention of tbe grantor, and it is ;said (35 Minn. 397, 29 N. W. 159):

“Tbe so-called reservation was not, strictly speaking, an -exception of anything; for an exception is of a part of tbe thing granted, and of something in esse at tbe time of tbe .grant.”

So this case appears to turn upon tbe intention of tbe .grantor and tbe wording of tbe reservation. In Towne v. Salentine, 92 Wis. 404, 66 N. W. 395, this court clearly recognizes tbe distinction between tbe words “exception” and “reservation,” when used in a deed, and bolds that, while a reservation for a right of way carries only an easement, an •exception for tbe same purpose excludes tbe fee from the grant. In Patrick v. Y. M. C. A. 120 Mich. 185, 79 N. W. 208, tbe language used in tbe deed was “excepting and reserving,” and it was held to be an exception and not a reservation.

Many cases might be cited in support of tbe doctrine that •excepting land from a deed for right-of-way purposes withholds tbe fee from tbe grant, and that tbe fee in such land ex•cepted does not pass to the grantee unless it appears that the intention of tbe parties was that tbe right of way only should be reserved. Tbe question, therefore, arises here whether tbe language of tbe deeds in question is so ambiguous or indefinite as to admit of extrinsic evidence. As before observed, tbe Lewis deed upon its face appears to except the fee and burden it with a right of way in-favor of Pritchard, as well as tbe right'in the grantee to keep it inclosed and maintain gates. No reason is perceived why the grantor, Jones, did not have tbe right to except tbe fee and so burden it. Nothing appears ■from tbe face of tbe deed to Lewis showing a contrary intention. Now, it appears very clearly from tbe deed to Pritchard, which on its face purports to have been executed upon the-same day as deed to Lewis, that the grantor had reserved the fee to this strip in deed to Lewis, because he reserves to himself the timber situated thereon, which clearly he could not have done if the deed to Lewis had conveyed the fee, although he also refers to the property as the premises reserved for right of way. Counsel for respondent says in his brief that the two deeds should be construed together, and in so doing" it is not easy to see how it can be gathered from the deeds that the intention of the grantor was to convey the fee to: Lewis. Besides, the interpretation put upon these deeds by practical construction indicates quite plainly that the fee in this strip was reserved in the deed to Lewis and passed to-Pritchard. Immediately upon the execution of these deeds-Jones swept the timber, which was valuable, from the strip, without any objection on the part of Lewis, which would be-wholly inconsistent with the passing of the fee to Lewis; also the payment of taxes on this strip by Pritchard, and the fact that Mrs. Jones, one of the grantors, refused to sign deed to Lewis until Pritchard got his deed of the one acre, very strongly indicate that the fee to the strip was reserved, and intended to be reserved, in deed to Lewis, and transferred to Pritchard. In conveyances of this character the question of exception or reservation being largely one of intention, and the court always determining from the nature and effect of the provision itself, the subject matter, and the situation of the parties, we are inclined to the opinion that sufficient ambiguity existed to warrant the admission of the competent testimony offered. Fischer v. Laack, 76 Wis. 313, 45 N. W. 104; Stone v. Clark, 1 Metc. 378; Miller v. Miller, 17 Oreg. 423, 21 Pac. 938. And, considering the deeds in the light of the competent testimony produced, there is no room for doubt that Jones reserved, and intended to reserve, the fee in the conveyance to Lewis, and that he conveyed the same to. Pritchard.

2. The next question for consideration is whether the sixth finding is supported by the evidence. It is in effect that the defendant Lewis entered into possession of the strip in question May 5, 1894, under deed from-Wm. Beatty, referee in the partition suit, and acquired title thereunder by adverse possession. Through the partition deed defendant Lewis got the interest of John G. Lewis. This was twenty-four acres; the one-acre strip in question being owned in fee by plaintiff, subject to the right .of Lewis to fence the same into his inclosure and maintain gates. The partition deed describes the tract by metes and bounds, and gives it as twenty-four acres, more or less, although it includes within the boundaries the twenty-four acres owned by Lewis and the one-acre strip owned by plaintiff. The plaintiff, being the owner in fee of the strip in question at the time of the execution of the partition deed, is entitled to the benefit of the presumption created by sec. 4210, Stats. 1898. It is claimed on the part of the respondents that at the time of the execution of partition deed, May 5, 1894, defendant Lewis entered into possession under such deed and continued to hold adversely, but the evidence fails to establish such claim. The possession by Lewis after May 5, 1894, as shown by the evidence, was perfectly consistent with title to the fee in plaintiff and her ancestor. The evidence does not establish that the defendant Lewis, or his father, held the strip in question in hostility to the plaintiff. Evidence of adverse possession must be clear and positive, and should be strictly construed. Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 111; Fuller v. Worth, 91 Wis. 406, 64 N. W. 995. Upon the facts proven the possession of the defendant Lewis was simply permissive, as well from the time of execution of partition deed as before. The actual occupation by defendant Lewis of the twenty-four acres, although the one-acre strip was inclosed therewith, was perfectly consistent with the ownership of plaintiff, and not in hostility to her. Stewart v. Harris, 9 Humph. 714; Nau v. Brunette, 79 Wis. 664, 48 N. W. 649; Lampman v. Van Alstyne, supra; Woods v. Montevallo C. & T. Co. 84 Ala. 560, 3 South. 475; Bailey v. Carleton, 12 N. H. 9. We must therefore hold that the sixth finding is not supported by the evidence.

Upon the question of the mortgage to defendant Adams creating a cloud upon the plaintiffs title little need be said. The mortgage claimed to be a cloud upon the plaintiff’s title in this case was executed by defendant Lewis and his wife to defendant Adams in December, 1903, and included therein the strip of land owned by the plaintiff, without any reservation whatever. The mortgage was executed upon the theory that defendant Lewis owned the fee. Since he did not, the mortgage is a cloud upon the plaintiff’s title and she is entitled to relief. It therefore follows that the judgment of the court below must be reversed.

By the Court. — The judgment of the court” below is reversed, and the cause remanded with instructions to enter judgment for the plaintiff.