106 Me. 389 | Me. | 1910
On September 22, 1864, Horace Hall being the then owner of a tract of land in Nobleboro containing about forty-five acres, and bounded on the south by the West Neck Road so called, conveyed by warranty deed to Elbridge G. Hall, the portion of the same on which the buildings were located, lying next to the road, and comprising about five acres. This deed contained the following clause which is now before the court for construction : "Reserving to me, the said Horace Hall, a right of way in common with the said Elbridge G. Hall, to and from and acrost the above described premises, meaning a cart road to and from my land.”
This right of way across the defendant’s lot had been used to a greater or less extent by the plaintiff and his predecessors in title until the summer of 1908, when it was obstructed by the defendant, and the plaintiff brought this action on the case to recover damages for such obstruction. The presiding Justice directed a verdict for the plaintiff and the case is before this court on exceptions to this ruling.
Two questions are presented for consideration. First, did the clause in the deed above quoted create a reservation limited to the lifetime of Horace Hall as claimed by the defendant, or did it create an exception in favor of the grantor appurtenant to the remaining land, and passing to his heirs or assigns without words of inheritance, as claimed by the plaintiff? Second, was the easement extinguished ?
A bripf recital of long and firmly established legal principles will determine both questions in favor of the plaintiff.
It is an unyielding rule of the common law that the word "heirs” is necessary in order to convey a fée simple in land, it matters not how plainly the intention so to do may be expressed in other words of perpetuity. But this rule is not applicable to an "exception” of an easement appurtenant to other land of the grantor, which operates to retain in the grantor some portion of his former estate and whatever is thus excepted or taken out of the grant remains in him as of his former title. An exception is of a part of the thing granted and of a. thing in being at the time of the grant. A reservation, however, vests in the grantor some new right or interest that did not exist in him before. It operates by way of an implied grant and in the absence of words, of inheritance only an estate for the life of the grantor is created. See Engel v. Ayer, 85 Maine, 448 and cases cited.
In conformity with this broad and liberal rule of construction the following may be cited as examples of provisions which in terms were reservations but were held to create exceptions. "Reserving forever a right of way over a street which the grantee is to make, from the northwest corner of said granted lot to the road,” Bowen v. Conner, 6 Cush. 132; Reserving the passway at grade over said railroad where now made,” White v. R. R. Co., 156 Mass. 181; "Reserving the right to cross the track of said railroad on grade near the westerly line of our said lands at such place as said company can most conveniently provide,” Hamlin v. R. R. Co., 160 Mass. 459; "We reserve to ourselves the privilege of crossing and recrossing the said piece of land above described, or any part thereof within said bounds,” Chappell v. R. R. Co., 62 Conn. 195; "Reserving forever for myself the privilege of passing with teams &c. across the same in suitable places to land I own to the south of the premises,” Winthrop v. Fairbanks, 41 Maine, 307; "I do reserve a driveway from the county road onto the east end of said lot &c. and another driveway on to the west end of said lot,” Smith v. Ladd, 41 Maine, 314; "Reserving a passway from the road &c,” Bangs v. Parker, 71 Maine, 458; "With the reservation of a road two rods wide over the northerly side of said lot,” Wellman v. Churchill, 92 Maine, 193.
The provision under consideration merits as reasonable a construction as the foregoing. Look at the situation. By the conveyance of the front lot, the rear lot became inaccessible, except over land of other parties, unless a right of way were retained. The convenience and necessity of this way were as great to subsequent owners of the rear lot as to the grantor. It was a right which
But the defendant goes further and contends that even if this construction is correct, the way in question was extinguished by the erection in 1883 by the owner of the defendant’s lot, and their maintenance until the present time, of an ell and woodshed across the way as used by Horace Hall. Such erection, and maintenance are undisputed but it further appears that after this erection another way for a short distance around the ell was substituted by mutual arrangement, and therefore the way in its slightly changed course took the place of the former one. The new way at that point was used by all parties from 1883 down to 1908, and was recognized in
Exceptions overruled.