Soukup v. Topka

54 Minn. 66 | Minn. | 1893

Mitchell, J.

Plaintiff’s sixth assignment of error is unavailing both because it is too general and indefinite, and also because there were no exceptions to the rulings complained of.

The only point raised by the other assignments of error is that the conclusions of law are not justified by the findings of fact.

Upon the findings, which are all we can consider, the only question is the construction of the deed from Smith and Snow to defendant’s grantor, Drazda.

This deed, for the consideration of $400, conveys, first, a tract of land 82 feet long, from north to south, by 40 feet wide, from east to west, and then adds, "and the said parties of the first part do hereby also grant to the said party of the second part a strip of land described as follows, to wit, [then follows description of a tract 183 feet long, from north to south, and 12 feet wide, from east to west,] for a road to and from said premises first above described.”

The question is whether, in view of the clause italicized, this deed conveyed an absolute fee, a conditional fee, or a mere easement, in the tract last described. This has to be determined from the language of the deed itself, unaided by anything else, unless it be the fact, ascertainable from the descriptions, that the last-described tract, beginning 101 feet further south, extends north along and adjoining the whole east line of the tract first described. The trial court decided in favor of the defendant, holding that the deed conveyed an absolute fee. Tho plaintiff’s contention is that it conveyed only an easement for purposes of ingress and egress to and from the tract first described. None of the cases cited by him are analogous.

In Sanborn v. City of Minneapolis, 35 Minn. 314, (29 N. W. Rep. 126,) the conveyance expressly declared, not only that the land was deeded for alley purposes, but also that the grant should be null and void whenever the premises ceased to be kept for these purposes. Moreover, what is still more important, the grant was to a named grantee “and others who may own property along the within described alley,” which was entirely inconsistent with that exclusive control and dominion over property consequent upon ownership in fee. In Flaten v. City of Moorhead, 51 Minn. 518, (53 N. W. Rep. 807,) where the deed provided that the land thereby conveyed was “to be forever held and used as a public park,” while we did not decide whether this conveyed a conditional fee or a mere easement, the controlling considerations, aside from the language of the deed, which led us to hold that it did not convey an absolute fee, were that the grantee was a municipal corporation, and the consideration named in the deed merely nominal. In Robinson v. Missisquoi R. Co., 59 Vt. 426, (10 Atl. Rep. 522,) the conveyance was to a plank-road corporation “for the use of a plank road.” The principal reasons assigned for holding that this clause limited the grant to an easement were that the land conveyed was a strip through the grantor’s entire farm; that the grantee was already in occupation of the premises; that the only possible use to which it could put the premises was for its road; and that the consideration expressed in the deed was grossly inadequate for a grant in fee. In the present case all these extrinsic facts are absent. The deed in terms conveys, not an easement in the land, but the land itself, with an attempted restriction upon its use, if it be considered such, which is entirely consistent with the passing of the fee. There is nothing in the deed reserving to the grantor any use of, or dominion over, the land; and the rule is that, if the grant be of the uses of and dominion over land, it carries the land itself. 3 Wash. Real Prop. (5th Ed.) 406.

(Opinion published 55 N. W. Rep. 824.)

This clause as to the purpose for which the land was conveyed is altogether too equivocal in its meaning, and as to the object of its insertion in the deed, to so qualify the previous language of the instrument conveying the land as to limit the grant to an easement.

According to all the authorities this deed would be held to convey the fee, and the clause referred to construed as, at most, an attempt to attach a condition subsequent to the grant. 2 Wash. Real Prop. (5th Ed.) 314; Coburn v. Coxeter, 51 N. H. 158; Vail v. Long Island R. Co., 106 N. Y. 283, (12 N. E. Rep. 607.)

As counsel rest their whole case upon the proposition that the deed conveyed only an easement, and do not make the point that if it conveyed a fee it was only a conditional one, we have no occasion to consider that point further than to say that the clause referred to would not, of itself, create a condition subsequent, within the doctrine of Farnham v. Thompson, 34 Minn. 330, (26 N. W. Rep. 9,) where the subject of conditions subsequent was discussed at length and the authorities fully reviewed.

Judgment affirmed.