92 Me. 193 | Me. | 1898
Trespass quare clausum for cutting down and carrying away certain trees standing within the limits of a certain road in the town of Belmont, known as Hickey’s Mills road, and on the northerly side thereof. The defendant admits the cutting and carrying away of the trees and justifies under his wife, Ella C. Churchill, who, he claims, held the title, and was in possession and had the right of possession of the land upon which the trees stood. The defendant introduced a deed from one Miles Pease to the defendant’s wife in which the granted premises are described as beginning on the northerly side of the road leading from Miles Pease’ house to Dickey’s Mills, thence easterly by said Dickey’s Mills road to land of Elijah M. Pease, thence, by other courses and bounds, to point of beginning, being part of the Isley Jordan place. It is admitted that the south line of the Isley Jordan place is the northerly line of the Dickey’s Mills road. From the foregoing description and admission it is clear that the defendant’s wife is bounded by the northerly line of the Dickey’s Mills road and has no title or right of possession of the land included within the limits of the road. The defendant, therefore, fails to justify the cutting by title in bis wife.
The plaintiff in support of his title to. the locus in quo introduced a deed of warranty from one Edgeeomb to himself of a parcel of land beginning on thq northerly side of the road leading from Dickey’s Mills to the road near the dwelling-house of Isley Jordan, thence by courses and bounds to the place of beginning, “ with the reservation of a road two rods wide over the northerly side of said lot.” It is admitted that the road mentioned in the
Every exception or reservation in a deed is the act of the grantor and should therefore be construed most strictly against him and most beneficially for the grantee. Wyman v. Farrar, 35 Maine, 71; Kuhn v. Farnsworth, 69 Maine, 405. A reservation has sometimes the force of a saving or exception. Co. Litt. 143. Exception is always a part of the thing granted, and of a thing in being; and a reservation is of a thing not in being, but is newly created out of the land and tenements devised, though exception and reservation have often been used promiscuously. Co. Litt. 47 a. A construction given to a clause called a reservation, is, that it is an exception if it fall within that definition, and if such was the design of the parties. State v. Wilson, 42 Maine, 9; Winthrop v. Fairbanks, 41 Maine, 307. Where a road or way is spoken of, there are two distinct rights or interests which naturally present themselves to the mind — the fee in the land itself and' the easement or use (public or private) which may be made of it for the purposes of travel or transportation. Kuhn v. Farnsworth, supra. The construction and effect of reservations or exceptions of “roads” and “ways” in deeds have uniformly been held by this court to import only the easement and not the property in the soil. Stetson v. French, 16 Maine, 204; Tuttle v. Walker, 46 Maine, 280; Cottle v. Young, 59 Maine, 105: Kuhn v. Farnsworth, supra; Day v. Philbrook, 85 Maine, 90; Morrison v. Bank, 88 Maine, 155. We therefore hold that the- words of reservation in the plaintiff’s deed excepted from the grant the easement only and that the fee in the soil passed to the plaintiff. Having such fee his action is maintainable.
Judgment for the plaintiff, and damages are assessed at ten dollars as agreed by the parties.
