Barrett v. The Kansas; & Texas Coal Company

• Decision Date: 07 January 1905
• Docket Number: 13,905
• Citation: 70 Kan. 649,79 P. 150
• Court: Kansas Supreme Court
• Parties: W. H. BARRETT et al. v. THE KANSAS; & TEXAS COAL COMPANY

79 P. 150

70 Kan. 649

W. H. BARRETT et al. v. THE KANSAS; & TEXAS COAL COMPANY

No. 13,905

Supreme Court of Kansas

January 7, 1905

Decided January, 1905.

Error from Crawford district court; WALTER L. SIMONS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TITLE AND OWNERSHIP--Exception in Deed--Minerals. A deed to real estate contained the following provision: "This deed is made subject to the following exceptions, reservations, and conditions, to wit: . . . The said party of the first part hereby reserves the coal and all other mineral underlying said land." Held, that this constituted an exception, not a reservation. The title to the coal remained in the grantor; not a mere easement to go upon the land to mine it.

2. TITLE AND OWNERSHIP--Parol Testimony. There is not such ambiguity in the language quoted from the deed as to permit the introduction of parol testimony to change or vary the terms of the deed.

3. TITLE AND OWNERSHIP--Abandonment. In this state the fee-simple title to real estate cannot be lost by mere abandonment.

4. PRACTICE, DISTRICT COURT--Election of Defenses. Ordinarily a party, after having deliberately selected his ground of defense and finding himself defeated thereon, should not be permitted so to shift it as to court the hazard of another battle.

Blue & Bulger, and Kimball & Osgood, for plaintiffs in error.

Morris Cliggitt, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.

The defendant in error sought to enjoin the plaintiffs in error from mining and carrying away coal in a place under a certain described tract of land, and asked an accounting and judgment for the value of coal by them already mined and carried away.

Both parties claim the ownership of the coal in question, and their rights turn upon the construction of a deed and the considerations growing out of such construction. The plaintiff below was the owner of a tract of land. On May 11, 1898, it conveyed the same to one of the defendants below, under whom the balance claim, with the following exceptions and reservations in the deed:

"This deed is made subject to the following exceptions, reservations, and conditions, to wit: The said party of the first part shall have the use of said land and the buildings thereon until March 1, 1899. The said party of the second part shall not sell any portion of the above-described land in less than forty-acre tracts for a period of ten years next ensuing. The said party of the first part hereby reserves the coal and all other mineral underlying said land, with a right of way of railroad over said land, and it shall not be liable for any damages occasioned by, or arising from, the undermining of said land."

The defendants admitted the taking of the coal from the premises as alleged and sought to defend their right so to do under two claims: (1) That the terms of this deed, properly construed, amounted to but the reservation of a mere easement in the grantor to go upon the granted premises, and not to an exception, whereby the title to the coal remained vested in the grantor; (2) granting that by the terms of the deed the title to the coal remained in the grantor, that such title might be abandoned by the joining of a purpose so to do with an act to that end, and, being abandoned, the coal would become the property of the grantees upon their taking possession. By the quoted terms of the deed, did title remain in the grantor, or was there simply an easement created under which it might, at the will of the grantee, go upon the land to mine the coal? In other words, was this an exception or reservation?

An exception is defined at page 416 of volume 3 of the sixth edition of Washburn on Real Property as follows: "An exception is the taking of something out of the thing granted which would otherwise pass by the deed."

Other definitions are: "An exception is defined as a clause in a deed whereby the feoffer, donor, lessor, etc., doth except something out of that which he had granted before by his deed." (Darling v. Crowell, 6 N.H. 421.) "The office of an exception is to take something out of the thing granted that would otherwise pass." (13 Cyc. 673; Roberts v. Robertson, 53 Vt. 690, 38 Am. Rep. 710; Biles v. Tacoma, Olympia, &c. R. R. Co., 5 Wash. 509, 32 P. 211.) On the other hand, "a reservation is a clause in a deed whereby the grantor reserves some new thing to himself out of that which he had granted before." (13 Cyc. 672.) It is "that which issues from, or is an incident of, the thing granted, and not a part of it." (Marshall v. Trumbull, 28 Conn. 183, 73 Am. Dec. 67.) "Something newly created out of the granted premises." (Hurd v. Curtis and another, 7 Metc. 94, 110.) "That part of a deed or other instrument which reserves a thing granted that was not in existence before." (Winston v. Johnson, 42 Minn. 398, 401, 45 N.W. 958; Elliott v. Small, 35 id. 396, 29 N.W. 158, 59 Am. Rep. 329.) "The creation of a right or interest which had no prior existence as such in a thing or part of a thing granted." (Kister v. Reeser, 98 Pa. 1, 5, 42 Am. Rep. 608.)

In Craig v. Wells, 11 N.Y. 315, 321, it was held:

"A reservation is always of something taken back out of that which is clearly granted, while an exception is some part of the estate not granted at all. A reservation is never of any part of the estate itself, but of something issuing out of it. An exception, on the other hand, must be a portion of the thing granted, or described as granted, and can be of nothing else; and must also be of something which can be enjoyed separately from the thing granted." (Craig v. Wells, 11 N.Y. 315, 321.)

Technically, the word "exception" applies to the first class and the word "reservation" to the second class of these estates. However, the use of these technical words is by no means determinative of the purpose of those using them, as not infrequently they are used interchangeably; hence we must go to the entire document or, in proper cases, to evidence aliunde, for their interpretation.

Bearing in mind these definitions and principles, let us look to the deed under consideration. It was made subject to certain "exceptions, reservations, and conditions," one of which was: "The said party of the first part hereby reserves the coal and all other mineral underlying said land." From this language it seems to be clear that the coal itself was retained by the grantor, and not a mere easement to go upon the land and mine it. It was the coal itself which was the object of the reservation, the title to which was retained.

In Whitaker v. Brown, 46 Pa. 197, the exception was in the following language: "Saving and reserving, nevertheless, for his own use the coal contained in the said piece or parcel of land, together with free ingress and egress by wagon road to haul the coal therefrom as wanted."

It was held that the saving clause operated as an exception of the coal, and, therefore, that the entire and perpetual property therein remained in the grantor. (See, also, Foster &amp Co. v. Runk, 109 Pa. 291, 58 Am. Rep. 720; Lillibridge v. Coal. Co., 143 id. 293, 22 A. 1035, 13 L. R. A. 627, 24 Am. St....