Grubb v. Grubb
| Decision Date | 02 October 1882 |
| Parties | Grubb <I>versus</I> Grubb. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. SHARSWOOD, C. J., absent
ERROR to the Court of Common Pleas of Lancaster county: Of January Term 1882, No. 108.
Wayne Mac Veagh and A. Slaymaker (with whom was Samuel H. Reynolds), for plaintiff in error.—The case turns on construction of the words of the deed, "so far as the said Alfred Bates Grubb's interest in the Mount Hope Furnace is interested and concerned;" and the question is, how far was his undivided one half interest in the furnace concerned, in the right to dig ore at the time of the conveyance? Obviously it was interested and concerned to the extent necessary to give it its full value; that is, to the extent of a right to a full supply of ore. In 1845, in the absence of railroads, the furnace and ore banks were mutually dependent on each other for their value; and ever since 1785 the Mount Hope Furnace has been supplied from the ore banks without any question. For these reasons the ownership of the Ore Banks has always been regarded as appurtenant to the different furnace properties. The fact that when the grantee operated the furnace in partnership with his brother Edward B. Grubb, who owned the other half, each partner furnished one half the ore used, is certainly no evidence of such a contemporaneous construction of the deed as is contended for by the defendant in error; because, at that time the partners took ore for the furnace from the Mount Hope hole, with men and teams owned by the firm, and no account whatever was taken of the ore either as between the partners, or as between the firm and the proprietors of the ore banks. The deed must be construed most strongly against the grantor: Klaer v. Ridgway, 5 Nor. 529; Connery v. Brooke, 23 P. F. S. 80; Richardson v. Clements, 8 Nor. 523.
D. W. Sellers and H. M. North (with whom were Thos. E. Franklin and George M. Kline), for defendant in error.—The words "so far as . . . . is interested and concerned," limit and restrict the supply of ore granted by the deed of 1845, to the grantee's interest in the Mt. Hope Furnace. These words were put in the deed for some purpose, and a meaning must be given them. They were not meant to enlarge the grant, which would be perfectly clear without them; but were undoubtedly intended to limit the grant of ore to the grantee's interest in the furnace — which was one-half. The parties to the deed were contracting about one-half a furnace, and the supply of ore for that half — not about an entirety of anything. Alfred bought Clement's right to one-half of the furnace, and the right to ore for this half, and he thereby acquired an equal position with his partner Edward, who owned the other half of furnace and supply. In other words, Edward furnished ore "so far as his interest in the Mt. Hope Furnace was interested and concerned," and by his purchase Alfred acquired the right to ore — "so far as his interest in said furnace was interested and concerned," viz.: to a one-half supply.
This record presents for our consideration the proper construction of the deed of October 29 1845, from Clement B. Grubb & wife to Alfred Bates Grubb for an undivided moiety of the property known as the Mount Hope Estate, consisting of a furnace, grist-mill, saw-mill, dwelling-houses, barns, and other buildings. The only question about which there is any dispute is the extent of the right of the grantee in the deed to take iron ore from the Cornwall Ore Banks for the use of the Mount Hope Furnace. The clause in said deed bearing upon this subject is as follows: "Together also with the right, title and interest, so far as the said Alfred Bates Grubb's right under this conveyance in the said Mount Hope Furnace is interested and concerned, of them the said Clement B. Grubb and Mary Ann Grubb his wife, to raise, dig up, take and carry away for the use and advantage of said furnace, iron ore out of and from three certain mine mills in Lebanon Township, Lebanon County, bounded on all sides by lands of Thomas B. Coleman, deceased, and known and called by the name of the `Cornwall Ore Banks,' and held as a tenancy in common with the heirs of Thomas B. Coleman and James Coleman, deceased, with ingress egress and regress to and from the said mine hills, and every part thereof, for the purpose only of procuring ore for the said Mount Hope Furnace, but for so long and for such time only as the said furnace can be carried on and kept in operation by means of charcoal."
The precise question for our determination is, whether under this deed, Alfred Bates Grubb is entitled to a full supply of ore for his furnace, or only a half supply. The court below ruled that he had a right to a half supply only.
The construction of this deed was before this court in Grubb v. Grubb, 24 P. F. S. 25, where it was held that it conveyed to Alfred a privilege to take ore from the Cornwall Ore Banks for the use of Mount Hope Furnace, but did not convey the corporeal estate in the mine hills; that remained in Clement. The extent of the right to take ore was not before the court. But to the extent the right exists it passed by the deed of Clement B. Grubb to the interest he conveyed in the Mount Hope Estate, and will pass with it as appurtenant thereto.
What was the intention of the parties to the deed and what did they...
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