In the district court, plaintiffs failed to establish a right-of-way by prescription over a strip of defendants’ property. On appeal, plaintiffs challenge the judgment on three grounds: (1) dеfendants are not fee simple owners of the disputed strip; (2) the evidence does not support the trial court’s finding; and (3) the trial court erred in denying plaintiffs’ motion for a new trial on the basis of surprise.
The parties own adjacent properties in Riverdale, Utah. Defendants are on the west and plaintiffs on the east, with River-dale Road on the south. The properties had once been separated by a barbed wire fence, but about 1946 the southerly portion collapsed in disrepair, and no fence marked the boundаry line thereafter until defendants constructed a new fence in 1977. Defendants also maintain a barbed wire fence approximately fourteen feet west of the boundary linе to enclose their farm equipment and calves in the pasture. The fourteen-foot strip of property between this fence and the east-west boundary of the partiеs’ properties is the subject of this controversy.
Defendants acquired their property in 1939, and since that time have used it continuously for agricultural purposes. In 1946, the property now owned by plaintiffs was purchased by James Stephens, who constructed a blacksmith shop approximately twenty-nine feet east of the boundary line. In 1951, Myrtle Cornish purchasеd the property, remodeled the building, and leased it to a series of tenants. From 1952 until 1969, four successive tenants operated taverns there. Plaintiffs, the last of these tenants, purсhased the property in 1969. They added a kitchen in 1970, and continued to operate as a tavern and restaurant. The extent to which delivery trucks and business patrons used the fourteen-foot strip for ingress and egress prior to defendants’ erection of the existing boundary fence in April of 1977 is in dispute.
In September, 1978, plaintiffs commenced this suit for a declarаtory judgment to establish a right-of-way by prescription over the fourteen-foot strip of property. After a two-day trial, the district court decreed that plaintiffs have no rights in the subject property by prescription or otherwise and *712 that defendants own the strip in fee simple subject only to the claims of any persons owning a deeded right therein that has nоt been totally abandoned. We affirm.
First, plaintiffs contend that defendants have never been granted title to the disputed fourteen-foot strip, and thus cannot object to plaintiffs’ use of the property or obtain the relief the district court has given them. This argument relies on the following language, which appears in a warranty deed executed in 1939 by onе Becker to Guiseppe D’Agnillo and his wife, defendants’ predecessors in title: “Excepting a right of way 14 feet wide, the center line of which is described as follows: [metes and bounds dеscription].” Each of the subsequent deeds in defendants’ chain of title contains a similar provision.
The paramount rule of construction of deeds is to give effect to the intеnt of the parties,
Creason v. Peterson,
Admittedly, the “right of way” in this deed was part of an “excepting” clause (quoted above), which, plaintiffs argue, establishes that the grantor withheld the fee simple, rather than merely an easement. That argument was answered in
Hartman v. Potter,
Utah,
A technical distinction exists between a “reservation” and an “exception.” A reservation reserves to the grantor some new thing issuing out of the thing granted and not in esse before, and an exception excludes from the operation of the grant some existing portion of the estate granted which would otherwise pass undеr the general description of the deed. However, since the terms are often used interchangeably, the distinction has been disregarded to a great extent where the intеntion of the parties can be arrived at and a reservation may be construed as an exception when necessary to carry out the obvious intent of the partiеs.
Accord, 6 Thompson on Real Property § 3090, pp. 771, 777-78 (1962). For these same reasons, an exception may be construed as a reservation when necessary to effectuate the obvious intent of the parties.
Whеre the subject of the “exception” is specifically designated a “right of way,” the parties would seem to have expressed their intent to have the grantor reserve оnly an easement, unless the instrument, considered as a whole, clearly indicates that the reservation of a fee interest was intended. The exception was held to resеrve only an easement in Cappelli v. Justice, supra; Sohio Petroleum Co. v. Hebert, supra; and Elliott v. McCombs, supra, and we follow those decisions. Defendants’ predecessors in title therefore received a fee simple title to the contested fourteen-foot strip, and plaintiffs’ first argument is without merit.
The district court found that plaintiffs had not established an easement by prescription. In equity cases, we reverse only when the evidenсe clearly preponderates against the findings of the trial court. Applying that standard to the settled principle that an easement by prescription only
*713
arises when the dominant estate owner’s use of a passage across the servient estate has been open, notorious, adverse, and continuous for a period of twenty yeаrs,
Jensen v. Brown,
Utah,
Finally, plaintiffs contend that the trial court erred in denying their motion for a new trial undеr Utah R.Civ.P. 59(a)(3) on the basis that they had been surprised at trial by the testimony of four of defendants’ witnesses. Those witnesses testified that some telephone poles lying along the southerly ninеty feet of the boundary had obstructed vehicular traffic from plaintiffs’ property across the disputed strip for a period of about two years in 1961 and 1962. The trial court used that еvidence as the basis for its finding that “even if there had been open and notorious use of the 14 foot right-of-way area in question, such use was interrupted in 1961 and 1962 .... ” Although plaintiffs later allеged that the telephone poles had never been mentioned as an issue in pretrial discovery, they made no objection to this testimony during the two days of trial in which these four witnesses testified on direct and cross-examination about the existence and location of the utility poles. At the conclusion of defendants’ case, plaintiffs’ counsеl announced that he had no rebuttal, and prior to closing argument counsel again advised the court that he had no further evidence to present. Then, after the court hаd issued its memorandum decision, findings, conclusions, and judgment, plaintiffs sought a new trial to allow them to submit the testimony of a witness who obviously had important testimony to offer: the person who wаs supposed to have put the telephone poles in place, and who, it was alleged, had been unable to testify at the time of trial because he was confinеd to his home for reasons of health.
The question of whether to grant a motion for a new trial is within the discretion of the trial court, whose ruling will not be disturbed on appeal unless the fаcts show a clear abuse of discretion.
Amoss v. Benn-ion,
Finally, as is evident from the court’s finding, quoted above, the ground at issue in this ruling was an alternative ground for the court’s decision. In view of our affirmance of the court’s finding that there was no open and notorious use of the strip in question, any error on the question of continuous use was harmless in any case. Utah R.Civ.P. 61;
Lee v. Mitchell Funeral Home Ambulance Service,
Utah,
The judgment of the trial court is affirmed. Costs to respondents.