86 Vt. 258 | Vt. | 1912
The plaintiff sues as executor of Francis Smith to recover damages for the obstruction of a private way which crosses the defendant’s land, called the Pratt farm, to a wood lot immediately adjoining, which belongs to Smith’s estate and is in the possession of the executor. In 1867 Smith, then the owner of both parcels, conveyed the farm to á grantor of the defendant by a deed which contained the following clause: ‘ ‘ Reserving the right at reasonable times and in a reasonable way to cross said land below the road to my wood lot. ’ ’ There is no similar clause in- the succeeding deeds, but each of these contains a reference to the deed immediately preceding. Since the conveyance of Francis Smith the owners of the wood lot have had no other means of reaching it than the claimed right of way. The parties submit the question whether this easement ceased with the life of Francis Smith, or inures to the benefit of his heirs and estate.
There is nothing in the agreed statement to show that at the date of the Francis Smith deed there was a defined and visible way across the grantor’s farm to his wood lot. So the way mentioned in the deed must be taken to be a new way, not in being previous to the execution of the deed. If there had been an existing road, the provision in question could be construed as an exception, and thus accomplish a retention of a right of way. Dee v. King, 77 Vt. 230, 59 Atl. 839, 68 L. R. A. 860. The terms “reservation” and “exception” are-often used as synonymous when the thing to be secured to the grantor is a part of the granted premises, and when so used they are to be construed accordingly. 2 Wash. Real Prop. *645. If given their technical
It is still the rule of the common law that an easement in fee cannot be created by way of a reservation without words of inheritance. But it has been held that terms of reservation may be construed as constituting an exception when this is necessary to effectuate the purpose of the parties. It seems to be considered that the parties may use the term In a sense different from its technical meaning, and that their intent, if ascertainable from the subject of the grant and the surrounding circumstances, should control rather than the legal implication. The primary and natural meaning of the word is inconsistent with the effect given it in the law of this subject. To reserve is to keep in reserve, to retain, to keep back, not to deliver or make over. Its meaning in law, as given by Webster’s New International, is “to withhold from the operation of a grant or agreement.” Unless saved by the rule of construction above stated, this inconsistent technical meaning of a word in common use and a forced implication therefrom will determine whether an easement, essential to the use and value of an estate, shall end with the life of the then owner or go with the estate in perpetuity.
After Smith conveyed the Pratt farm his wood lot was entirely surrounded by the lands of others. There is nothing to indicate that he had any personal interest in securing a right of way distinct from his interest as owner of the lot. His interest as owner required that he secure a right of way available after his death. The value of the lot to Smith as- its then owner, irrespective of use, depended upon the perpetuity of the means of reaching it. In ordinary circumstances there is- no ground for supposing that a grantor intends to limit a right- of this
Judgment affirmed.
