Ruffin v. Seaboard Air Line Railway
66 S.E. 317
N.C.
1909
Check Treatment
Glare:, C. J.,

after stating the ease: This case presents a single question, i. e., the construction of the stipulation contained in the deed from J. F. Jones to the Louisburg Railroad Company, by which it was agreed that the said Jones should have the right to erect a warehouse on the land conveyed, provided an open space of 115 feet was left for use by the railroad company as depot grounds. It is admitted that the defendant has 115 feet of open space, and that the warehouse erected by J. F. Jones extends twenty-three feet over the southwest boundary of the land conveyed by the deed of 1885.

The court below took the view that this stipulation reserved to J. F. Jones a descendable, assignable and transferable easement in the twenty-three-foot strip of land, but that this easement is restricted to warehouse purposes.

*334 The contention of the Seaboard Air Line Railway is that this stipulation in the deed is nothing more than an agreement between the Louisburg Railroad Company and J. E. Jones, or license, that he could erect a warehouse, and that the right to occupy the land for that purpose expired upon the death of the said Jones.

We do not think the clause in the deed from Jones can be construed to be a license to him — a license is granted by the owner of the -land; besides, as a rule, a license is voidable at the will of the owner (Washburn Easements, 3d Ed., sec. 15; Jones Easements, sec. 69), which certainly was not the intention here.

The defendant’s contention, that if this was an easement it expired at the death of the grantor, Jones, cannot be maintained. It was created by way of exception, and, “If created by way of exception, words of inheritance are not necessary to create an easement in fee, if the grantor owned the fee of the premises at the time of the conveyance, for the simple reason that the thing excepted is not granted, and the grantor retains a part of the estate by virtue of his original title.” 14 Cyc., 1165; Jones Easements, sec. 89.

Hamlin v. Railroad, 160 Mass., 459, held that a deed of a railroad right of way, releasing all claims for damages, but reserving to the grantor a private crossing over the track, along the course of a previously existing cartway, excepts the cartway from the grant and does not create a new right in the grantor by way of reservation; and hence the word “heirs” is not necessary to make the easement of crossing perpetual. This case is more especially in point, because that court, in common with North Carolina, holds to the common law distinction or doctrine. Washburn Easements, 3d Ed., p. 5.

If it be contended that the clause was in effect a reservation, and that under the strict rule of law an instrument creating an easement in fee by way of reservation must contain words of inheritance, such contention is met and avoided by the provisions of our statute in existence at the time of the conveyance (section 1280, Code of 1883), which provided that conveyances are held and construed to be in fee unless a contrary intention appears from the conveyance'.

Whether the right is by way of exception or reservation, the intention of the grantor, to be ascertained from the language used and the attendant facts and circumstances, was not to except or reserve a mere life estate, but a perpetual right of user, provided always that the grantee held absolutely 115 feet. As was said by this Court in Merriman v. Russell, 55 N. C., 470, *335 “Few would be at tbe expense of erecting a mill if tbe supply depended upon tbe uncertainty of.life.” And tbe grantor would not bave excepted or reserved tbe right in tbis .case to erect an expensive warehouse — a building ordinarily erected for time, so far as human foresight and power can extend — if tbe tenure depended on tbe uncertain term of bis own life. Taking into consideration that tbe erection of such a building was to tbe direct benefit of tbe railroad by making it a contributing factor in building up tbe business of the then new railroad, and taking into consideration, further, that such buildings always bave been and always will be contributing agencies to tbe business of railroads, it is clear that tbe intention of both parties was to create a perpetual user. It was deemed by them to be one which would always be of benefit to both grantor and grantee. Hall v. Turner, 110 N. C., 292, indicates that the grantor’s right in the twenty-three feet was a determinable fee.

Jones on Easements, secs. 92 and 106, says: “When it appears by tbe true construction of tbe terms of a grant that it was tbe well-understood purpose of tbe parties to create or reserve a right, in tbe nature of a servitude or easement, in tbe property granted, for tbe benefit of other land owned by the grantor, no matter in what form such purpose may be expressed, whether it be in tbe form of a condition, or covenant, or reservation, or exception, such right, if not against public policy, will be held to be appurtenant to tbe land and binding on that conveyed to tbe grantee, and tbe right and burden thus created and imposed will pass with tbe lands to all subsequent grantees.” Jones on Easements, secs. 92 and 106.

“That a reservation naturally operates to enhance tbe value of tbe grantor’s other lands is a strong indication of bis intention that it should be appurtenant to bis estate and not merely personal to himself.” Jones on Easements, sec. 94, p. 76.

“A reservation of an easement which is intended to be appurtenant to tbe land retained by tbe grantor is not within tbe rule that tbe word ‘heirs’ must be used to create an estate which will extend beyond tbe party making tbe reservation,” etc. J ones on Easements, sec. 93.

Patton v. Educational Co., 101 N. C., 408, is very much like tbe case at bar. In that case there was a grant of lands in fee, reserving an easement, as follows: “With tbe following reservation — that is to say, the said M. M. Patton reserves thirty-three feet for a street running from tbe cross street down L. C. Clayton’s fence to J. P. J ordan’s fence; then up J ordan’s fence to the street that leads down to. Patton’s bouse.” There was in tbe *336 deed, as in the case at bar, a conveyance of lands by metes and bounds, and the reservation was made within such bounds and was made without words of inheritance. The heirs of Patton brought suit for the enjoyment of the easement, which had been obstructed, and the defendant there, as here, contended that the user was confined to the life of the grantor; but the Court, held that the easement descended to the heirs. It will be noted that this was not the case of a dedication of a street for public use, but the reservation of an easement for a private right of way, though it was called a street. No interest of the public apxoears. That ease contains a review of the authorities on this point.

In the ease at bar, in any event, the reservation was at the least a determinable fee, even without words of inheritance or without construction to ascertain the intent of the parties to the deed (Hall v. Turner, 110 N. C., 292), and under it the perpetual user of the land for warehouse purposes was retained. Our conclusion is, that, whether by way of exception or reservation is immaterial; the grantor retained for warehouse purposes a determinable fee in the land conveyed to the railroad company, outside of the 115 feet, for the length of the warehouse he erected — -this right -appurtenant to the ownership of the land covered by the other part of the warehouse. No rights of the defendant railroad, as a common carrier, in respect to rights of way, etc., are involved; it is not a question of permissive user of a part of its right of way, which cannot ripen into an easement, but this is the exception of a portion of the land granted, or a reservation at the least of it to the grantor; and the railroad, in its relation thereto, stands just as any other grantee not a common carrier would stand. It was a right that lay in grant, and the railroad granted nothing — had nothing then to grant — but got the clear depot space of 115 feet, as provided in the exception contained in the deed.

The judgment below is

Affirmed.