149 Wis. 30 | Wis. | 1912
Two questions are involved upon this appeal: (1) the construction of a deed from plaintiff to one David C. Ormsby, through whom the defendants claim title to the land in suit, and (2) whether the defendants acquired title by adverse possession to such land under a written instrument.
1. The appellants claim that the land in controversy passed by the deed from plaintiff to Ormsby, while on the part of the respondent it is claimed that it was excepted from such grant. The controversy arises on the words of the deed. After describing forty acres in township No. 7 north,.range No. 18 east, the deed contains the following: “Reserving off the east line of the same two rods in width, running into Pe~ waukee lake, commencing two rods south of the northwest corner of section 24.” The plaintiff’s contention is that this
The appellants rely upon the distinction made in the authorities between the words “exception” and “reservation” or “excepting” and “reserving,” and it is insisted that because the word “reserving” is used, and not “excepting,” in the conveyance, the strip was not excepted from the grant to Ormsby, but passed to him and from him through mesne conveyances to defendants.
Counsel for appellants quotes from Fischer v. Laack, 76 Wis. 313, 45 N. W. 104, and the early case of Rich v. Zeilsdorff, 22 Wis. 544, where the distinction is drawn between the significance of the words “exception” and “reservation,” and it is said in Fischer v. Laack, supra:
“The word ‘except’ is employed, but the subject matter to which it refers is a reservation. These terms are frequently used in deeds as synonymous. Although they are not synonymous, it is immaterial if they are erroneously used one for the other. The court will always determine from the nature and effect of the provision itself whether it creates an exception or a reservation.”
While in the instant case the word “reserving” was used, the whole clause is quite significant that an exception of the strip was intended, — “reserving off the east line of the same two rods in width, running into Pewautee lake, commencing two rods south of the northwest corner of section 24;” and immediately following a right of way is reserved over another tract to be used in common by the parties.
The evidence produced upon the trial of the physical situation and the surrounding circumstances strongly tends to show that it was the intention of the plaintiff and David 0. Ormsby that the land in question should be excepted from the
It is well settled by the decisions of this court that the intention of the parties governs in the construction of deeds. Barkhausen v. C., M. & St. P. R. Co. 142 Wis. 292, 124 N. W. 649, 125 N. W. 680; Walterman v. Norwalk, 145 Wis. 663, 180 N. W. 479; Williams v. Jones, 131 Wis. 361, 111 N. W. 505. The words “excepting” and “reserving” are often used indiscriminately and interchangeably, and sometimes what purports to be a reservation has the force of an exception, the technical meaning giving way to the manifest intention of the parties. Green Bay & M. C. Co. v. Hewitt, 66 Wis. 461, 29 N. W. 237; Pritchard v. Lewis, 125 Wis. 604, 104 N. W. 989; Fischer v. Laack, 76 Wis. 313, 45 N. W. 104.
2. It is further insisted by counsel for appellauts that the defendants acquired title to the premises in question under a written instrument. This question turns on whether the appellants held the land in question adversely for the required period. The court below found against this contention of the appellants, and after a careful examination we are satisfied that the finding is well supported by the evidence, therefore cannot be disturbed.
By the Court. — The judgment is affirmed.
