Biles v. Tacoma, O. & G.H.R. Co.

• Decision Date: 13 January 1893
• Court: Washington Supreme Court
• Parties: BILES v. TACOMA, O. & G. H. R. CO.

32 P. 211

5 Wash. 509

BILES v. TACOMA, O. & G. H. R. CO.

Supreme Court of Washington

January 13, 1893

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action by J. B. Biles against the Tacoma, Olympia & Gray's Harbor Railroad Company to recover the possession of land. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

Mitchell Ashton & Chapman, for appellant.

Linn &amp Bridges, for respondent.

ANDERS J.

On May 11, 1876, the Northern Pacific Railroad Company, then being the owner of the N.E. 1/4 of the S.E. 1/4 of section 1, in township No. 17 N., of range 6 W. of the Willamette meridian conveyed the same to the respondent by a warranty deed containing the following clause "Reserving and excepting therefrom, however, a strip of land extending through the same (or so much of such strip as may be within said described premises) of the width for hundred feet,-that is, two hundred feet on each side of the center line of the Northern Pacific Railroad, or any of its branches,-to be used for a right of way or other railroad purposes, in case the line of said railroad or any of its branches has been or shall be located on or over or within less than two hundred feet of said described premises." The appellant is a corporation organized and existing under the laws of this state, and about the 1st of November, 1890, it entered upon the land so conveyed to the respondent, and has since constructed a railroad across the same. The respondent brought this action to recover the possession of the land so occupied by appellant, and alleged, in substance, in his complaint, that on or about the 1st day of October, 1890, he was seised in fee and possessed, and entitled to the possession of, a certain tract of land described as "a strip of land 400 feet in width, being 200 feet on either side of the center line of the railroad track constructed by the defendant across the tract of land above described," and that while he was so seised and possessed, and entitled to the possession thereof, the defendant (appellant here) on or about November 1, 1890, without any right or title, entered into the possession of said premises, and ousted and ejected the plaintiff therefrom, and now unlawfully withholds possession from plaintiff, to his damage in the sum of $500. The defendant denied that the plaintiff was ever entitled the possession of the premises sought to be recovered, or that it ousted or ejected the plaintiff therefrom, or that it unlawfully withheld the possession thereof from the plaintiff, and justified its possession on the grounds (1) that the Northern Pacific Railroad Company, and not the plaintiff, was the owner of the strip of land described in the complaint, and that the defendant was in possession by and with the consent of that company; and (2) that it was entitled to hold and possess the premises by virtue of being a branch line of the Northern Pacific Railroad Company, and thus entitled to the reservation or exception contained in the deed of that company to the plaintiff. The court below held that the plaintiff was the owner, and entitled to the possession, of the demanded premises, and gave judgment accordingly; and the first question presented for our determination on this appeal is whether the title to the strip of land in dispute passed to the respondent by the deed of May 11, 1876. There is no question but that the fee of the whole 40-acre tract described in the deed is in the respondent, unless the 400-foot strip was withdrawn from the operation of the conveyance by the clause above mentioned. It is claimed by the appellant that the restriction in the instrument amounts to an exception of so much of the land as is contained in the 400-foot strip, and that the title to the same did not pass to the grantee, but that the Northern Pacific Railroad Company is still the absolute owner thereof. On the contrary, the respondent insists that the clause in the deed at most is but a mere reservation of a right of way over the land in favor of the Northern Pacific Railroad Company, and that the appellant, being a stranger to the reservation, can claim no rights under it. While it is true that there is a technical legal distinction between an exception and a reservation, it is also true that whether a particular clause in a deed will be considered an exception or a reservation depends not so much upon the words used as upon the nature of the right or thing excepted or reserved. Martind. Conv. p. 106, § 118. An exception is a clause in a deed, which withdraws from its operation some part of the thing granted, and which would otherwise have passed to the grantee under the general description. The part excepted is in existence at the time of the grant, and remains in the grantor unaffected by the conveyance. A reservation is the creation in behalf of the grantor of a new right issuing out of the thing granted, something which did not exist as an independent right before the grant. 5 Amer. & Eng. Enc. Law, p. 455, tit. "Deeds;" Tied. Real Prop. § 843. But frequently the words "exception" and "reservation" are used as synonymous, and the term "exception" will be held to mean "reservation" whenever it may be necessary to effectuate the intention of the parties to the instrument. Winthrop v. Fairbanks, 41 Me. 307; Whitaker v. Brown, 46 Pa. St. 197; Cowdrey v. Colburn, 7 Allen, 13; Stockwell v. Couillard, 129 Mass. 231; Martind. Conv. supra. In the deed before us the language is, "reserving and excepting therefrom," etc. These words must be construed to mean either a reservation or an exception, for, strictly speaking, a thing cannot be both reserved and excepted at the same time; and the meaning can best be arrived at by ascertaining, if possible, the intention of the parties, as evidenced by the words of the deed, the object they had in view, and the circumstances under which the deed was executed. At that time the Northern Pacific railroad Company was the owner of a vast area of land, which had been granted to it by the congress of the United States to aid it in the construction of its railroad and telegraph line from Lake Superior to Puget sound. It desired to sell these lands, and the respondent desired to purchase the particular legal subdivision above described, and the whole thereof. But the railroad company deemed it...