Ballard v. Louisville & N.R. Co.

• Citation: 5 S.W. 484
• Parties: BALLARD v. LOUISVILLE & N. R. CO. and others.
• Decision Date: 03 November 1887
• Court: Kentucky Court of Appeals

5 S.W. 484

BALLARD v. LOUISVILLE & N. R. CO. and others.

Court of Appeals of Kentucky.

November 3, 1887

Appeal from circuit court, Shelby county.

Jas. W Head, for appellant.

Bullock & Beckham, for appellee.

HOLT J.

The appellee the Cumberland & Ohio Railroad Company had the power by legislative grant to acquire the absolute title to land for purposes other than the mere right of way; and the single question now presented is whether the Randolph deed vested in it a fee-simple or a mere easement. It reads thus:

"DEED OF RIGHT OF WAY.

"Know all men by these presents that R. P. Randolph, of the town of Shelbyville, and ----- Randolph, his wife, county of Shelby, and state of Kentucky, for and in consideration of the sum of twenty-one hundred and fifty dollars cash to them in hand paid, the receipt of which is hereby acknowledged, hath given, granted, barguined, and sold, and do by these presents give, grant, bargain, and sell to the Cumberland & Ohio Railroad Company so much of his lands in said county as is required for the use of the road of said company as follows: * * * Containing two 7-10 acres of land; to have and to hold the same to the said grantees and their assigns forever. And said grantor doth hereby covenant to and with said grantees that he will warrant and defend to them and their assigns, forever, the premises hereby granted; and the said -----Randolph relinquishes her right of dower herein."

In giving the boundary, one call of the deed is for the "east edge of right of way," and the description of the land conveyed shows that it is not of uniform width.

It is urged for the appellants-- First, that a consideration of the entire deed shows that the grantor intended to convey but an easement, and not the fee; and, second, if this be not so, and the intention does not appear, that then the premises of the deed convey but a right of way, and that the words of grant, and not the habendum, must control.

The object of construction, and which is ever to be kept in view is the intention of the parties. If this appears, then technical rules cannot be applied, if they lead to a different result. The premises of a deed and the habendum are to be construed together, if possible. The office of the latter, however, is to define the estate. Its words are those of limitation. It is that portion of a deed which follows the granting part of the premises, and defines the extent of ownership granted. It can, therefore, be considered only when the granting words leave the subject of ownership open to explanation. In fact it is not an essential of a deed. If the granting part of...