66 Wis. 461 | Wis. | 1886
The facts are briefly as follows: George W. Lawe was the sole owner of an irregular tract of land lying on the northwest side of Fox river, south of the village of Kaukauna, and including the canal and lock subsequently constructed, containing about nine or ten acres. He occupied the tract for a dwelling, with a barn and outhouse, and an orchard and garden; and a fence inclosed nearly the whole tract, leaving out a road passing around the south side, and leading to and beyond a saw-mill. On the south side there was a wing-dam. leading southeasterly from the river, which brought the water to said mill near the middle of the tract on the -south side. This mill was run by Lawe, to saw logs, mostly stored in said wing-dam, and the lumber was piled on a mill-yard and along said road. The capacity of the mill was from 1,000 to 3,000 feet per day, or about 100,000 feet in one year, and it was operated only in the spring months when the water was high. This was the situation of the premises, December 12, 1851. The canal had not yet been excavated along the north side of the tract, but it had been projected, and Morgan L. Martin
When the canal was completed, these lots became wet and marshy, and the ground was unfit for residence, and in a short time all the buildings and improvements thereon were abandoned, and have decayed away, and finally, before this action was commenced, the mill was also aban
The legal conclusion of the circuit court from the facts was, in brief, that the parties each owned an undivided half of the tract or lots, irrespective of said buildings and improvements, and the mill and improvements connected therewith, and that the exception or reservation in said deed included only such “buildings, and improvements in the nature of buildings and of a personal property character, and not any land, or right in land, except the right to leave the buildings remaining on the land while the same lasted, or until sold or disposed of or removed by Lawe and wife and their vendees.” This involves the only qúestion in the case. The plaintiff company appeals from the judgment based upon this legal conclusion,
We think this conclusion was correct, (1) because such is the proper construction of the language of the exception or reservation; and (2) because, treating such language as involving an ambiguity, the situation of the premises and the circumstances attending the execution of the deed show most conclusively that such was the intention of the parties to it. The general rule in all grants undoubtedly is that, when a mill or other building is granted, the soil on which it stands, and adjacent thereto, and necessary for its use,
That which is called in this deed an exception or reservation is most clearly an exception, for it is a part of the thing included in the grant, to be taken out of it, and the part so taken out is in esse. All the buildings named are a part of the freehold, and, if reserved to the grantor, such reservation is an exception. The exception, therefore, if of doubtful construction in respect to whether any part of the land in fee is excepted with the buildings, must, by the same rule, be construed in favor of the grantee, and against the grantor, who has granted the whole estate and sets up the exception against it. An exception is none the less an exception because in the form, and terms of a reservation.
There is another thing to be considered in construing the language of this exception. The grant makes the grantor and grantee tenants in common. Without the exception, the grantor would be entitled to one half of the buildings and improvements and the undivided use thereof. An exception operates only on one undivided half of the buildings in such a case, for the grantor retains that interest without an exception. In such a case, the only reason of such an exception would seem to be that the grantor, while enjoying in common with the grantee the joint estate in the lands, should have the exclusive use of the buildings while they were in existence.
This distinction seems to have been made in Howard v. Wadsworth, 3 Me. 471, where there was a grant of one undivided half of a certain mill lot, dam, saw-mill, and slip, with the privilege of flowing, etc. The exception was of “ the grist-mill now on said falls, with the right of maintaining the same, and also the dwelling-house and sheds now on the premises.” This case is especially in point. The court says in that case: “ According- to a well-known rule of law, as an exception operates by way of restriction upon the general language of a grant, if it is in ambiguous language it must not be enlarged by construction, but rather be construed strictly. . . . The exception must not be extended beyond the plain language of it.” The buildings in that case, as in this, having been destroyed, it was held that the right of the grantor therein, or in the soil on which they stood, was at an end.
An exception is not construed as a grant in any case, and much less in a case like this, where the parties become tenants in common by the deed, having an equal right of control over the whole premises, unless limited by such an
In another case, very much in point, of Sanborn v. Hoyt, 24 Me. 118, where the language was, “excepting and reserving all the buildings on said premises,” it is given as a reason for l-estricting the exception to the buildings alone, “ that the tract of land was conveyed by metes and bounds. It does not appear that there was at the time my lot, parcel of land, or curtilage designated by occupation in connection with the Imildings.”
Suppose it should turn out that the improvements (and a fence would seem to be an improvement in connection with a house, barn, and outhouse, and an orchard and garden) covered the whole tract. Then, of course, the exception would defeat the grant by such a construction. How much land shall go with buildings and improvements, and mill and improvements? Where shall the lines and boundaries be placed? Who can tell? This uncertainty of description would defeat a grant, even. If the estate cannot be ascertained by the description of the grant, the deed fails altogether. 3 Washb. Real Prop. 629; Peck v. Mallams; 10 N. Y. 530; Deery v. Cray, 10 Wall. 270. This grant is made with hereditaments, appurtenances, reversions, and remainders, rents, issues, and profits, right, title, and interest, claim or demand, of and to the above-bargained premises of the grantor, without any exception of any of the land.
There are authorities, perhaps, in cases of grants, that hold a different doctrine where the language may be similar; but they all differ from this case in the above particulars. But if, in just such a case as this, authorities could be found to hold that the exception was of a part of the land,
Second, if this exception is to be construed in the light of surrounding circumstances and th¿ situation of the premises when the deed was made, then we think the intention of the parties very clear that the buildings and mill were excepted only for use during their existence, and that no land in fee was excepted with them. -The deed is to be construed with reference to the actual rightful state of the property at the time of its execution. Contemporáneo, eoipositio est optima et fortissimo, in lege. The canal was just about being excavated through the tract on the upper side, which, when filled with water, would cause all the tract to become wet, and unfit for occupancy, or for houses and barns, orchards and gardens. It -was known that these were to be very temporary. The mill was a small one, and the power feeble, and which had been improvised by a rude wing-dam into the river, and the mill itself stood within the margin of the river. As soon as the canal was finished through the tract, soon after the deed was made, a series of water powers of fifteen feet head were opened all along the northwest margin of the tract, which made the old mill of very little value, and superseded its availability. Morgan L. Martin had control of the hydraulic facilities of the canal, and the main consideration of the deed was that he should place bulk-heads along this tract throughout. If there was to be an exception of a considerable part of the tract to Lawe, then Martin would not have felt interested in making such bulk-heads along the entire tract, and binding himself to do so as the consideration of his purchase of an undivided half of the whole tract. These facts and circumstances most clearly indicate the intention of the parties that the exception should be limited to the buildings and mill alone,
We are satisfied that the circuit court placed the proper construction upon the deed.
By the Court.— The judgment of the circuit court is affirmed.