Fuller v. Arms

45 Vt. 400 | Vt. | 1873

The opinion of the court was delivered by

Wheeler, J.

The clause in the deed out of which the questions made in this case arise, is in that part of the deed technically called the premises, and is a part of the description of the estate, or interest, which passed by the deed to the grantee, in the land covered by the deed. The word conditioned, used in that clause, does not signify that the whole estate in the land passed to the grantee, to remain there if the condition should be complied with, and to revert if it should not; nor is it a covenant, merely, that the grantee will abide by the terms of the condition; but it shows, with the rest of the description, what rights in the land passed to the grantee, and what were left remaining to the grantor. Whatever rights the grantee did take, have passed by conveyances to the orator, and nothing more has so passed, for the grantee could not convey any right that he did not have. Whatever was left to the grantor, now defendant, remains with him still. This clause is to bo read together with all the rest of the deed, to ascertain from the whole instrument, what, according to the intention of the parties as collected from the instrument itself, was conveyed, and what left. In this view, the land, with the use of it restricted so that no building or erection, except a dwelling-house and out-buildings for the same, or such other buildings and erections as would not affect the rights, privileges, and interests of the grantor, his heirs or assigns, to a greater degree than a dwelling-house and out-buildings for it would, passed to the grantee. The right to the restriction of the use, remained to the grantor. The grantor then owned a house and land westerly of, and near to, this land, and that fact is recited in the deed in connection with this clause, and is to be considered as a part of the situation of the parties, in connection with the recital, in construing the deed to ascertain what rights, privileges, and interests the grantor had to bo affected by buildings or erections on this land. The relation of this land sold, to the house and other land mentioned, should also be considered as a part of the situation. At that time, the land sold was separated by a highway only from the other land, which was on high ground, and from the house and grounds about it there was an extensive view across the part sold. A view from a house,' or from grounds about it, would bo an important interest to some persons. It is probably true, as claimed for the orator, that one person has no right to control land owned by another, in any respect on account of a view; but it is equally true that any person has a right to control and dispose of his own land as he sees fit, for the sake of a view, and is entitled to have the view protected as much as any other interest. So the defendant, when he owned this land, could, in the disposition of it, restrict its use as he saw fit, to preserve, or provide for, a view more or less unobstructed from his house and other lands, and having done so, he is entitled to enjoy the benefits of the provision. The view from his house and other lands was an interest of his, protected by the restriction. Whatever would obstruct this view more than a dwelling-house and out-buildings for the same upon this land, would be an infringement upon his rights saved to him by his deed.

A church has already been erected under the rights conveyed by the defendant’s deed, and the orator seeks by his bill in this caso to have the right to erect a dwelling-house and out-buildings for the same, in addition to the church, established to him. The church is a large obstruction to the view, and a dwelling-house and out-buildings for it, where the orator desires to erect them, and in the only suitable place upon the land for them, would add the size of those buildings to the obstruction. To accede to this claim of the orator, would be to enlarge the right to erect buildings no larger than a dwelling-house and out-buildings ,for it would be, into a right to erect a dwelling-house, out-buildings for it, and a church. This, instead of being an establishment of the orator in a right he has already, would be establishing to him an infringement upon the rights of the defendant.

This construction of this deed does not conflict with a proper application of the rule, that a deed is to be construed most strongly against the grantor, for it only gives effect to what appears to be the fair import of the language of the deed, and that rule should never be applied to take away the effect of such import, when the import is reasonably plain from the words of the instrument.

Neither do these views conflict in any way with the decision in Emerson v. Simpson, 43 N. H. 475, as stated in the brief of the orator’s counsel, for that was a question as to the extent of what was clearly a condition subsequent, while this is not a deed upon condition either precedent or subsequent to the passing of the estate conveyed.

If this clause was a covenant in the deed, it probably would run with the land, according to the rule claimed by the orator’s. counsel, for it would affect the mode of occupation of the laná itself; but as before stated, it is not considered to be a coyeiiant.

These considerations lead to the conclusion that the^ orator is not entitled to the relief asked.