99 Ark. 244 | Ark. | 1911
(after stating the facts). The sole contention of counsel for the plaintiff is that the clause in the deed, “I, the said Burton Parker, reserve a road through said land 'to my bottom lands,” constitutes an exception.
“A reservation is a clause in a deed whereby the grantor reserves some new thing to himself, issuing out of the thing granted and not in esse before; but'an exception is always part of the thing granted, or out of the general words or description of the grant.” 4 Kent, 468; Stone v. Stone, 141 Ia. 438, 18 Am. & Eng. Ann. Cas. p. 797 and case note.
It must be conceded, however, that the terms “exception” and “reservation” are frequently used indiscriminately in deeds, depending upon the intention of the parties as expressed in the deed.
Counsel for plaintiff rely upon the case of Stearns v. Mullen, 4 Gray (Mass.), 151, to sustain their contention that the fee to the soil of the road was reserved to the grantor by the clause in question. We can not agree with their contention. There the estate granted was described by metes and bounds, and the passageway in question was not included within the boundaries of the grant, and a right-of-way in the passageway was also given to the grantee. The court said: “If it had been intended to pass the fee to the soil of the land to the grantee, he would have bounded it, on that side, on Champion’s heirs, who were his coterminous proprietors on the other side of the land, and would then have reserved to himself and his heirs the easement of a right-of-way, instead of granting one to the grantee of the lot.”
In the instant case the lands conveyed were described by metes and bounds, and the road was a private way, and was included in the boundaries of the grant.' The language in the clause in question carries its own interpretation. In plain terms, it reserves a road over the land granted and does not except or reserve the land for a road. It was the evident intention of the grantor to reserve .to himself a private way over .the lands contained in the grant to his bottom lands. If he intended to reserve anything more than a way over the land, his intent should have been manifested in the deed.
As illustrative cases, we cite the following: Abraham v. Abbott, 8 Ore. 53; Winston v. Johnson, 42 Minn. 398; Kister v. Reeser, 98 Pa. St. 1, 42 Am. Rep. 608; Brown v. Anderson, 88 Ky. 577; Ashcroft v. Eastern Railroad Co, 126 Mass. 196.
The principle announced has also been decided by this court. See Field v. Morris, 88 Ark. 148.
Hence we conclude that the clause in question did not except the fee of the soil in the road from the grant, but only created an easement or private way over the land.
The decree will be affirmed.
