The opinion of the Court was delivered by
Gibson, C. J.
Dr Peter Shoenberger, from whom the plaintiffs deduce their title, owned a moiety of Huntingdon Furnace, Sligo Forge, and the lands appurtenant, as well as a moiety of the ore reserved out of the grant of a tract of land by Gloninger & Co., under whom all parties claim, to one Beck; and the defendants owned a moiety. Dr Shoenberger owned also a third of Bald Eagle Furnace, of the Tyrone forges, and of the lands appurtenant ; of which the defendants owned two-thirds. The parties agreed to make partition of the whole, and to that end Dr Shoenberger conveyed to the defendants his third of Bald Eagle Furnace, the Tyrone forges, and the lands appurtenant; while the defendants conveyed to him their moiety of Huntingdon Furnace, Elizabeth Forge, and the lands appurtenant, (specifying the particular tracts), and also, by a separate and special clause, their moiety of the ore reserved out of the grant of Gloninger & Co. to Beck, in these words: “Also, the rights and privileges reserved in and by a deed of conveyance from John Gloninger &, Co. to Daniel Beck, by which the said John Gloninger conveyed to the said Daniel Beck a tract of land, &c., which deed contains a reservation as follows, to wit: ‘ Reserving out of this grant to the said John Gloninger & Co., their heirs and assigns, all the timber, wood, and ore-mines of every kind on the said tract being, with the right, privilege and liberty of entering on the said tract of land, &c.,’ ” with a memorandum at the foot that the right to cut was limited to timber of the first growth. While the defendants thus specially conveyed their share of the ore reserved in Gloninger’s grant to Beck, they reserved generally from their grant to [192]*192Dr Shoenberger “ the full undivided half-part of all the iron-ore which may at any time be found on any of the land now belonging to Huntingdon Furnace or Elizabeth Forge, as hereinafter described, within not less than the distance of two miles from said Huntingdon Furnace, for the use of Bald Eagle Furnace.” Then followed the reservation of a right to enter, dig and carry away, with a proviso that the other half should be for the use of Huntingdon Furnace. The Beck tract is distant more than two miles from Huntingdon Furnace; and the question is, whether the defendants’ moiety of the ore in it, which they conveyed by a special clause, as the rights and privileges reserved by Gloninger, was taken back by the general reservation of the ore to be found on the lands then belonging to Huntingdon Furnace or Elizabeth Forge, or rather whether it passed at all.
The defendants insist that though it may have been ore in the contemplation of the parties, it was land in contemplation of the law; and they suppose that if they have established that, they have brought it within the words of the general reservation.
It is certainly true that a thing reserved remains as it was. A reservation, operating as it does by way of exception, keeps the thing from passing just as if there were no grant at all; so that, if this ore was land before the tract was granted to Beck, it was land afterwards, and consequently corporeal; in which respect the reservation of it differed from the reservation of a thing issuing out of land, like a rent, which is no part of it. There is no inconsistency between the reservation of a rent and a grant of the land, because nothing is to be taken back which has passed by the deed. Of a grantor’s power, however, to take back with one hand what he gives with the other, more will be said presently; but, to speak to the question of intention, what matters it that the ore reserved in the grant to Beck was land in contemplation of law, if it was not land in the contemplation of Dr Shoenberger and the defendants, or the land they intended to reserve by that description ? It is scarce necessary to advert to the great rule that the construction be as near to the apparent intent as possible, and “ that too much regard be not had to the nature and proper definition, signification and acceptance of words and sentences, to pervert the simple intention of the parties.” Touchstone 86. Neither is it necessary to advert to the rule that the meaning is to be collected, not from particular words, but from the context; and not from particular parts of the instrument, but from all the parts of it together. These are cardinal principles which come to the mind unbidden.
Is it possible, then, that the parties contemplated a reservation of ore by the name of land, out of what was itself ore, and out of what they had not granted as land, but as rights and privileges previously reserved in a deed to which they referred for a specific description of the thing, and in which it was called ore ? If the [193]*193defendants’ share of it were supposed to fall within their general reservation as land, it would have been supposed to fall within the general terms of their grant as land; and a special clause, granting it by a particular designation of it, would have been unnecessary. In other words, if they' had thought it land to be embraced by the general terms of their reservation, they would have thought it land to be embraced by the general terms of their grant. The right to a mine may be severed from the soil, as in Doe v. Wood, (7 Barn. & Ald. 724); and that the defendants thought the right had been severed in this case, though they knew nothing about the decision in that, is shown by the fact that they did not describe it as a part of the soil; and that they did not convey it as land, shows that they did not view it as land within the general clause of reservation, which had regard to land, and nothing else. It would have been absurd to reserve the ore from a grant of land which, according to the defendants’ argument, consisted entirely of ore; for the grant and the reservation could not have stood together.
But the reservation was of ore lying on land then belonging to Huntingdon Furnace or Elizabeth Forge; and why qualify it as to time, unless to restrict the generality of the words to land which was once appurtenant to that furnace, or that forge, but which was so no longer? We cannot choose but think that the qualification had for its object the exclusion of the ore in the Beck tract from the reservation, because it is not found that the parties owned other lands which had been detached from Huntingdon Furnace or Elizabeth Forge, and it does not appear that there was anything else for its operation. If the ore in the Beck tract is not excluded by implication, what else is ? It is true that if it was land in the contemplation of the parties, it was land then belonging to Huntingdon Furnace, and the negative implied by the word “ now” would be inapplicable to it; but to give that word effect—and every word in a deed must be made to operate where it may—it ought to be shown that it was intended for something else. But the right to this particular ore had been severed from the land; and the restriction of the reservation to ore on land belonging to Huntingdon Furnace or Elizabeth Forge was doubtless intended to exclude it. The popular distinction between ore and land seems to have been studiously preserved; else why speak of ore lying on land, if the ore itself was deemed to be land ? To do so would be absurd.
Again.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the Court was delivered by
Gibson, C. J.
Dr Peter Shoenberger, from whom the plaintiffs deduce their title, owned a moiety of Huntingdon Furnace, Sligo Forge, and the lands appurtenant, as well as a moiety of the ore reserved out of the grant of a tract of land by Gloninger & Co., under whom all parties claim, to one Beck; and the defendants owned a moiety. Dr Shoenberger owned also a third of Bald Eagle Furnace, of the Tyrone forges, and of the lands appurtenant ; of which the defendants owned two-thirds. The parties agreed to make partition of the whole, and to that end Dr Shoenberger conveyed to the defendants his third of Bald Eagle Furnace, the Tyrone forges, and the lands appurtenant; while the defendants conveyed to him their moiety of Huntingdon Furnace, Elizabeth Forge, and the lands appurtenant, (specifying the particular tracts), and also, by a separate and special clause, their moiety of the ore reserved out of the grant of Gloninger & Co. to Beck, in these words: “Also, the rights and privileges reserved in and by a deed of conveyance from John Gloninger &, Co. to Daniel Beck, by which the said John Gloninger conveyed to the said Daniel Beck a tract of land, &c., which deed contains a reservation as follows, to wit: ‘ Reserving out of this grant to the said John Gloninger & Co., their heirs and assigns, all the timber, wood, and ore-mines of every kind on the said tract being, with the right, privilege and liberty of entering on the said tract of land, &c.,’ ” with a memorandum at the foot that the right to cut was limited to timber of the first growth. While the defendants thus specially conveyed their share of the ore reserved in Gloninger’s grant to Beck, they reserved generally from their grant to [192]*192Dr Shoenberger “ the full undivided half-part of all the iron-ore which may at any time be found on any of the land now belonging to Huntingdon Furnace or Elizabeth Forge, as hereinafter described, within not less than the distance of two miles from said Huntingdon Furnace, for the use of Bald Eagle Furnace.” Then followed the reservation of a right to enter, dig and carry away, with a proviso that the other half should be for the use of Huntingdon Furnace. The Beck tract is distant more than two miles from Huntingdon Furnace; and the question is, whether the defendants’ moiety of the ore in it, which they conveyed by a special clause, as the rights and privileges reserved by Gloninger, was taken back by the general reservation of the ore to be found on the lands then belonging to Huntingdon Furnace or Elizabeth Forge, or rather whether it passed at all.
The defendants insist that though it may have been ore in the contemplation of the parties, it was land in contemplation of the law; and they suppose that if they have established that, they have brought it within the words of the general reservation.
It is certainly true that a thing reserved remains as it was. A reservation, operating as it does by way of exception, keeps the thing from passing just as if there were no grant at all; so that, if this ore was land before the tract was granted to Beck, it was land afterwards, and consequently corporeal; in which respect the reservation of it differed from the reservation of a thing issuing out of land, like a rent, which is no part of it. There is no inconsistency between the reservation of a rent and a grant of the land, because nothing is to be taken back which has passed by the deed. Of a grantor’s power, however, to take back with one hand what he gives with the other, more will be said presently; but, to speak to the question of intention, what matters it that the ore reserved in the grant to Beck was land in contemplation of law, if it was not land in the contemplation of Dr Shoenberger and the defendants, or the land they intended to reserve by that description ? It is scarce necessary to advert to the great rule that the construction be as near to the apparent intent as possible, and “ that too much regard be not had to the nature and proper definition, signification and acceptance of words and sentences, to pervert the simple intention of the parties.” Touchstone 86. Neither is it necessary to advert to the rule that the meaning is to be collected, not from particular words, but from the context; and not from particular parts of the instrument, but from all the parts of it together. These are cardinal principles which come to the mind unbidden.
Is it possible, then, that the parties contemplated a reservation of ore by the name of land, out of what was itself ore, and out of what they had not granted as land, but as rights and privileges previously reserved in a deed to which they referred for a specific description of the thing, and in which it was called ore ? If the [193]*193defendants’ share of it were supposed to fall within their general reservation as land, it would have been supposed to fall within the general terms of their grant as land; and a special clause, granting it by a particular designation of it, would have been unnecessary. In other words, if they' had thought it land to be embraced by the general terms of their reservation, they would have thought it land to be embraced by the general terms of their grant. The right to a mine may be severed from the soil, as in Doe v. Wood, (7 Barn. & Ald. 724); and that the defendants thought the right had been severed in this case, though they knew nothing about the decision in that, is shown by the fact that they did not describe it as a part of the soil; and that they did not convey it as land, shows that they did not view it as land within the general clause of reservation, which had regard to land, and nothing else. It would have been absurd to reserve the ore from a grant of land which, according to the defendants’ argument, consisted entirely of ore; for the grant and the reservation could not have stood together.
But the reservation was of ore lying on land then belonging to Huntingdon Furnace or Elizabeth Forge; and why qualify it as to time, unless to restrict the generality of the words to land which was once appurtenant to that furnace, or that forge, but which was so no longer? We cannot choose but think that the qualification had for its object the exclusion of the ore in the Beck tract from the reservation, because it is not found that the parties owned other lands which had been detached from Huntingdon Furnace or Elizabeth Forge, and it does not appear that there was anything else for its operation. If the ore in the Beck tract is not excluded by implication, what else is ? It is true that if it was land in the contemplation of the parties, it was land then belonging to Huntingdon Furnace, and the negative implied by the word “ now” would be inapplicable to it; but to give that word effect—and every word in a deed must be made to operate where it may—it ought to be shown that it was intended for something else. But the right to this particular ore had been severed from the land; and the restriction of the reservation to ore on land belonging to Huntingdon Furnace or Elizabeth Forge was doubtless intended to exclude it. The popular distinction between ore and land seems to have been studiously preserved; else why speak of ore lying on land, if the ore itself was deemed to be land ? To do so would be absurd.
Again. If the parties intended to retain their shares of this ore, why put it in the conveyance at all ? They were joint tenants of it in equal proportions; and, according to the arguments, they are so still, the conveyance being so far a dead letter. Now, it is a rule, as we have said, that every part of a deed must be allowed to operate if it may; but, according to the defendants’ interpretation, the mutual action and reaction of the grant and reservation [194]*194are so nicely balanced that neither can operate, and the title remains where it was—an interpretation that was rejected by this court in Baker v. M’Dowell, (3 Watts & Serg. 358), where a grant of part of a mine was attempted to be neutralized in the same way. It is true that the timber growing on the Beck tract was reserved along with the ore, and that the defendants’ grant might at one time have operated on it as one of the privileges conveyed; but the reservation was restricted to timber of the first growth, which in the usual course of things is cut off once in sixteen years to supply the coals necessary for a forge or a furnace; and this part of it had consequently become obsolete in the period of three- and-twenty years which intervened between the two conveyances.
But, whatever were the intention, the rule that a reservation which is as large as the grant is void, and the grant valid, would control it. A reservation being an exception out of the thing granted, keeps the part reserved from passing; and unless it were smaller than the thing granted, nothing would pass, so that the grant would be void. But the law presumes that the grantor intended that his conveyance should take effect, and it gives effect to it in the only way it can, by disregarding the reservation. A valid reservation, therefore, must be the saving of a smaller thing out of a greater, or a particular out of a general.; as a room out of a house, or timber out of a manor. The subject of it must be not only a thing not expressly granted, but an accessory which is not inseparable from its principal. Again. Where it would destroy the entirety of the thing granted, it is void; as where the manorial court is excepted out of the grant of a manor, for there can be no manor without its court. So where it would destroy the grant altogether; for it has been held that a lease of all the lessor’s lands in a particular place, except his manor, passes the manor if he has no other lands there; and that a lease of a house and shops, except the shops, passes the whole. Every saving which crosses the grant is, so far as it is repugnant, of no force; and it is repugnant wherever the thing must necessarily pass, in the first instance, to satisfy the words. Many more examples of this common-place principle might be taken from Touchstone, (p. 78), where authorities for them are quoted. They are illustrations of the rule already glanced at, that all the parts of a deed shall operate where they may, and that, where they may not, those shall be rejected which stand in the way of its operating at all.
Now, the saving out of the grant of this ore is just as large as the grant itself. It is true that the saving in the grant fro in Gloninger to Beck included “ore-mines of every kind;” and that the subject was granted to Dr Shoenberger in terms as large, while the reservation in the grant to the latter is of iron ore only. But the ore of no other metal was found in the region; and as the reservation was to benefit Gloninger as a manufacturer of iron, the [195]*195presumption is that it was to be not more extensive than the necessities of his business. The difference between the words of the two reservations, in the terms of the first of which the subject was granted to Dr Shoenberger, was evidently the accidental work of the scrivener. It is true, too, that those terms were large enough to carry the timber; but at the end of twenty-three years the presumption is that the first growth of it had been exhausted. It would not differ the case if no such presumption were made; for the ore being expressly granted by reference to a deed in which it was specifically euumerated, could not be reserved. The case is in principle that of the house and shops, in which the saving of the shops was held to cross the demise of the whole. Independently, then, of interpretation, and of actual or constructive intention, this saving is repugnant and void by force of a plain, rational and undoubted rule of the common law.
Judgment of the Common Pleas reversed, and judgment rendered by this court for the plaintiffs.