Francis Smith's Ex'r v. Howard Jones
| Decision Date | 23 October 1912 |
| Citation | 84 A. 866,86 Vt. 258 |
| Parties | FRANCIS SMITH'S EX'R v. HOWARD JONES |
| Court | Vermont Supreme Court |
May Term, 1912.
CASE for obstructing a private way. Plea, the general issue. Trial by court on an agreed statement of facts at the September Term, 1911, Franklin County, Waterman, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.
Judgment affirmed.
D W. Steele for the defendant.
E A. Ayers for the plaintiff.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.
The plaintiff sues as executor of Francis Smith to recover damages for the obstruction of a private way which crosses the defendant's land, called the Pratt farm, to a wood lot immediately adjoining, which belongs to Smith's estate and is in the possession of the executor. In 1867 Smith, then the owner of both parcels, conveyed the farm to a grantor of the defendant by a deed which contained the following clause: "Reserving the right at reasonable times and in a reasonable way to cross said land below the road to my wood lot." There is no similar clause in the succeeding deeds, but each of these contains a reference to the deed immediately preceding. Since the conveyance of Francis Smith the owners of the wood lot have had no other means of reaching it than the claimed right of way. The parties submit the question whether this easement ceased with the life of Francis Smith, or inures to the benefit of his heirs and estate.
There is nothing in the agreed statement to show that at the date of the Francis Smith deed there was a defined and visible way across the grantor's farm to his wood lot. So the way mentioned in the deed must be taken to be a new way, not in being previous to the execution of the deed. If there had been an existing road, the provision in question could be construed as an exception, and thus accomplish a retention of a right of way. Dee v. King, 77 Vt. 230, 59 A. 839, 68 L. R. A. 860. The terms "reservation" and "exception" are often used as synonymous when the thing to be secured to the grantor is a part of the granted premises, and when so used they are to be construed accordingly. 2 Wash. Real Prop. 645. If given their technical meaning, an exception is something withheld from a grant which otherwise would pass as a part of it, while a reservation is some newly created right which the grantee impliedly conveys to the grantor. Ashcroft v Eastern R. R. Co., 126 Mass. 196, 30 Am. Rep. 672; Bailey v. Agawam Nat. Bank, 190 Mass. 20, 76 N.E. 449, 3 L. R. A. (N. S.) 98, 112 Am. St. Rep. 296. The extreme technicality of the latter conception is apparent. It would be easier and nearer the truth to say that a reservation is an interest which the grantor creates and excepts or reserves from his grant. Then the interest classed as a reservation would remain in the grantor, and an easement in fee would arise without the use of the word "heirs."
...
To continue reading
Request your trial