151 Iowa 483 | Iowa | 1911
This ease turns upon the construction to be put upon a certain deed executed September 27,'1895, by the Jewell Manufacturing Company to David Kirkpatrick. Said deed purported to convey to the grantee certain real estate as follows: “One hundred and fifty (150) feet off the west side of block four (4) in Jewell Manufacturing Company Addition to Lone Tree, Johnson county, Iowa, according to the recorded plat thereof. Excepting sixty (60) feet of south side of said bloch which shall he' left for a driveway.” The question is whether the italicized clause should be construed as withholding the title to the strip of ground described therein from the operation of the grant, or whether it simply reserved an easement to the grantor. At the time of such conveyance the Jewell Manufacturing Company was the owner of all of block 4 except a very small portion thereof, which need not be noticed in this case. This block abutted on the railroad right of way on its south side. The depot was a little south and west of its southwest corner. The dimensions of block 4 were five hundred feet by three hundred and sixty feet, the longer dimension being from east to west. The Jewell Company was operating a manufactur
Reverting now to tbe deed to Kirkpatrick, made in Í895, tbe appellant invoked tbe general rule of distinction between an “exception” and a “reservation” in a deed, viz., that an “exception” withholds from tbe operation of tbe grant some part or parcel of tbe premises conveyed by tbe general description, whereas tbe term “reservation” is applied to some right or easement reserved by the
As to this general rule of construction, there is no question. But such rule is not arbitrary nor is it permitted to override the real intent of the parties as such intent may be ascertained from .the instrument as a whole. It is a matter of common observation to the courts, that these terms are in fact frequently used by nonprofessional men interchangeably and synonymously, and the courts can not lean tod heavily upon the nicer distinction between them. The construction contended for by appellant would require us to ignore entirely the clause “which shall be left for a driveway.” We think this clause must receive appropriate consideration. It was plainly an undertaking on the part of either the grantor or the grantee, that the other should enjoy the right of passage over such strip. For the purpose of appellant’s case, it matters little whether the title should be deemed conveyed and an easement reserved in the grantor, or whether the title should be deemed reserved by the grantor and an easement created to the grantee. Either hypothesis is fatal to the appellant. He claims the absolute title and is proposing to construct permanent buildings upon the property.
It is- manifest from the record also that the parties to the instrument by their conduct immediately put a construction thereon which is in accord with the holding of - the trial court. At the time the deed was executed the property was open and unfenced. Kirkpatrick immediately inclosed his purchase with a fence leaving a driveway at the south end, forty-six feet wide. His grantor and the plaintiff as his successor exercised the right of driveway over such forty-six feet which appears to have been ample for their purposes. Nor does anyone appear to have challenged the right of Kirkpatrick to include the remainder of such sixty feet within his inclosure. The bank does
This is in accord with the decree of the trial court, and such decree is therefore affirmed.