Overton v. Moseley, 135 Ala. 599

Overton v. Moseley

135 Ala. 599 | Ala. | 1902

SHARPE, J.

It is in order to first consider whether the deed from Shelby, trustee, to Matthew M. Cowley conveyed an easement for drainage over the strip of land therein mentioned or the corpus of that strip. The deed begins with recitals of how the “land” about to be conveyed became vested in the grantor as trustee of a public sale of that “land” and of Cowley’s purchase thereat'of “sixty acres of the north part of the southwest and.forty acres off the south side of the northwest quarter section 19, Township 1, Range 1, east, containing one hundred acres, more or less, and also a strip of land in the east half of said section 19, not to exceed one rod in width and of which the center line shall correspond with the center of the extension *605on said east half of the ditch miming’ west across lot No. 3 of the Samuel 0. Townsend lands nor to extend more than 130 rods beyond the west boundary line of said section 19, it being intended that the purchaser of said lot No. 3, his heirs and assigns, shall use said strip for the sole purpose of enabling the oivner of said lot No. 3 to secure a free flow of water through the whole length of said ditch and shall not debar the owner of the lands adjoining said ditch on the east half of said section from building fences along or across said ditch, nor bridges across the same in such manner as will not prevent the purchaser of lot No. 3-from so using said strip as to secure a free flow of water through ■ the whole length of the. ditch on said east half of said section; also sixteen acres in the northwest quarter of sectkra 30 bounded, etc. * * * containing in all one hundred and sixteen acres, more or less, at the price of seventeen hundred and forty dollars.” This is followed by recitals of compliance with terms of sale and the granting clause wherein the property conveyed is mentioned only as “the land hereinbefore described.”

A mere restriction on the use of land imposed by the terms of a deed will not prevent the passing of the fee under clause appropriate for that purpose.—United States Pipe Line Co. v. Delaware, etc. R. Co., (N. J.) 42 L. R. A. 572; Soukup v. Topka, (Minn.) 55 N. W. Rep. 824; Vail v. Long Island R. Co., 106 N. Y. 283; Kilmer v. Wilson, 49 Barb. (N. Y.) 86. But the intention as evidenced by the whole instrument is the true guide in determining whether in such case the land or a mere easement is conveyed.—Sanborn v. Minneapolis, 35 Minn. 314, 29 N. W. Rep. 126; Flaten v. City of Moorhead, (Minn.) 53 N. W. Rep. 807; Robinson v. Missisquoi R. Co., 59 Vt. 426, 10 Atl. Rep. 522; Allen v. The Wabash, etc., R. Co., 84 Mo. 646; Pellissier v. Corker, 103 Cal. 516, 37 Pac. Rep. 611; Buckner v. Hutchins, 83 Wis. 299, 53 N. W. Rep. 505.

Technically the term land by which the entire property is mentioned in this.deed, applies only to corporeal property, but it may, when appearing to have been *606used with such intention, include an incorporeal interest in land.—Brower v. Tichenor, 41 N. J. L. 345; Freeholders v. Red Bank, etc., Co., 18 N. J. Eq. 91; Boston Water Power Co. v. Boston, etc., R. Co., 23 Pick. 395. It is evident this conveyance was, intended to include all the property recited to have been purchased by Cowley, and, therefore, if the interest purchased in the ditch was an easement only, that interest passed under the words “the land hereinbefore described.”

As indicating that the soil of the strip was not so included it is noticeable, not only that its use is restricted to drainage, but that the recited total of acreage. purchased equals that comprised in the tracts which are certainly conveyed, leaving no room for the inclusion of the str-ip. A like indication is furnished by the indefiniteness of the grant respecting the width of the strip. If intended to apply to soil, it may be the rule which favors the grantee in deeds of doubtful meaning, would save validity to this description by entitling the. grantee to take to the designated maximum of width, yet in dealing with the question of intention it is inferable that had the soil of the strip been the subject matter of the grant, its quantity would have been better defined. There is inaccuracy of description, in that, the strip' in question is said “to extend no more than 330 rods beyond the west boundary line of said section 39,” which distance, if reckoned from the west boundary of the section, would not extend upon its east half where defendants own; but the deed corrects itself in this particular by designating the strip’s location as in the east half of the section along the whole extension of the existing ditch. Upon these considerations we construe the. 'Shelby deed as embodying the grant of an easement- for drainage through the ditch'in question, and as making it an appurtenance of the land alleged to be now owned by complainant.

It was possible for title to that easement to have become vested in complainant bv a oonvevanoe containing a description of the lands without mention of its appurtenances.—McMahon v. Williams, 79 Ala. 288; *607Webb v. Robbins, 77 Ala. 176. And a contract to purchase land if he liad such, without a conveyance, may he sufiicient to invest him with a right to an easement-which equity would protect. But it was also possible for the easement t.o have been extinguished by abandonment, or by contract made before or in the act of complainant’s acquisition of the land. So that the aver-ments of the hill to effect that complainant owns the land and derived title thereto from Cowley do not necessarily import that complainant owns the easement Cowley had by the Hhelbv deed or any right of drainage Cowley may have acquired by alleged user of the ditch. The averment of complainant’s adverse possession of the land for more than ten years does not serve to connect him with ’Cowley’s title to the easement, nor dot's it imply that he held or acquired any interest in lands beyond the boundaries of that he was actually possessed of.

The hill alleges as a conclusion that a right to have the ditch kept open is secured to complainant by adverse use as well as by the Shelby deed, but the facts averred must be taken as the basis of complainant’s rights, and they do not support that conclusion. They fail to show that complainant, succeeded to the rights of Cowley excent as to the huid and his succession to that may, for all that appears, have been remote, and divested of all interest in tin* originally servient lands. So far as those facts relate to complainant’s individual use of the ditch they are not. inconsistent with a mere permissive user. A bill seeking to establish a title to an easement, by prescription must disclose that the urn* depended on, has been adverse to the landowner, and continuouslv so, for at least ten vears. Wright v. Moore, 38 Ala. 593.

The reference to Cowley's right of drainage contained in the deed of Bind by, trustee, to the grantees of the servient, tract, served only to except, and give notice of those rights. It did not create the easement, for that had already been done by the deed to Cowley.

In McKinley v. Irvine, 13 Ala. 693, this court stated as a rule of equity pleading, “the complainant must *608show by Ms allegations in the. hill that he is entitled to the relief which he seeks, and if he fails to set forth every essential fact necessary to make out liis title to maintain the bill the defect will he fatal.” In Cockrell v. Gurley, 26 Ala. 405, it was said to he a rule of universal application in equity as at law that “the title of the plaintiff should he stated with sufficient certainty and clearness to 'enable the court to see clearly that he has such a right as warrants its interference, and the defendant to be distinctly informed of the nature of the case he is called upon to defend.” These rules have been generally recognized and upheld. See Rapier v. Gulf, etc., Co., 64 Ala. 330; Goldsby v. Goldsby, 67 Ala. 560; S. & M. R. Co. v. Lancaster, 62 Ala. 555; 1 Dan. Ch. Pr., 314. Applying them in the present case it must, for the reasons stated, be held that the demurrers to the bill were well taken. For the error in overruling them the decree will be reversed and the cause remanded.

Reversed and remanded.