Gwinn et al. v. Gwinn.

• Decision Date: 07 December 1915
• Citation: 77 W.Va. 281
• Court: West Virginia Supreme Court
• Parties: Gwinn et al. v. Gwinn.

77 W.Va. 281

Gwinn et al.

v.Gwinn.

Supreme Court of Appeals of West Virginia.

Submitted September 21, 1915.

Decided December 7, 1915.

1. Deeds Habendum Clause Construction and Effect.

In the habendum clause of a deed is found this language: To have and to hold the aforesaid tracts or parcels of land with the appurtenances unto the said W. L. G. his heirs and assigns forever with the express understanding that the said B. G. is to have the privilege of locating and keeping open a wagon road through said land", describing the route of the road. The said B. G. was not a party to the deed, and no such road existed at the time. Held: That this privilege to B. G. to locate and keep open this road is a limita-tion to the habendum clause to the extent only of conferring on B. G. a privilege to be exercised by himself, and is not a reservation by way of a reddendum clause, (p. 285).

2. Easement "Way of Necessity."

A way of necessity exists where land granted is completely en vironed by land of the grantor, or partially by his land and the land of strangers. The law implies from these facts that a private right of way over the grantor's land was granted to the grantee as appurtenant to the estate, (p. 285).

3. Same Acquisition by Acquiescence and Use Private Way.

Use of a private way from one's land over land of another for ten years with the acquiescence of that other will confer a right to such way, but, if the owner does not acquiesce therein, but denies the right of way, such use will not confer the right of way. (p. 288).

(Lynch, Judge, absent.) Appeal from Circuit Court, Summers County. Suit by James R. Gwinn and others against L. W. Gwinn. From decree for plaintiffs, defendant appeals.

Reversed, and bill dismissed.

Davis, Davis & Hall, for appellant. T. N. Read, for appellees.

Mason, Judge:

Breckenridge Gwinn and Lockridge Gwinn were brothers and owned adjoining lands. Breckenridge owned eighty acres and. Lockridge owned two parcels, one containing forty-three acres, and another containing thirteen acres. John G. Gwinn, a son of Lockridge, owned another tract adjoining his father's land. It seems that Breckenridge Gwinn had some kind of interest in or claim to one of these parcels, but the nature of this claim or interest is not disclosed.

On the 13th day of March, 1879, Lockridge Gwinn and John G. Gwinn and wife conveyed these parcels of land to Win. Leroy Gwinn. The deed was executed jointly, but the conveyances were made separately; that is, Lockridge Gwinn conveyed the 43 acre and the 13 acre tracts, and John G. Gwinn conveyed the other parcel. In that portion of the deed which John G. Gwinn and wife made, is this language, '' And the said John G. Gwinn and Parthenia his wife for and in consideration of the sum of four hundred dollars, to them in hand paid by Breckenridge Gwinn, said amount having been paid to Breckenridge Gwinn by Lockridge Gwinn."

The habendum clause of the deed is as follows: "To have and to hold the aforesaid tracts or parcels of land with ap- purtenances unto the said Wm. Leroy Gwinn his heirs and assigns forever with the express understanding that the said Breckenridge Gwinn is to have the privilege of locating and keeping open a wagon road through said land", and fixing the route of the road. The controversy in this case arises out of the reservation of this road way. The land upon which this roadway was located at the time the deed was made, was an uncleared forest. Breckenridge Gwinn lived on his own land adjoining this land when the deed was made, and continued to live on it for three or four years thereafter, but never constructed a road on the land or used it. On the 2nd day of September, 1880, he sold his land to Samuel E. Gwinn, and moved off the land, Several sales were made of the Breckenridge Gwinn land, and on the 6th day of June, 1903, one of the plaintiffs, James R. Gwinn, became the owner, it is alleged, by deed from Mary C. Taylor. On the 27th day of June, 1894, there was conveyed to defendant Laban R. Gwinn by the heirs of Lockridge Gwinn, 56 acres; why or for what purpose this deed was made, does not appear. On the 21st day of December, 1899. Wm. Leroy Gwinn conveyed to the defendant 15 acres. This 15 acres is part of the land conveyed to Wm. Leroy Gwinn by Lockridge Gwinn by the deed of March 13, 1879, before referred to, and is alleged to be part of the 43 acres hereinbefore referred to. The right of way in controversy is located on this 15 acre tract.

None of the deeds for the 80 acre tract, owned by Breckenridge Gwinn March 13, 1879, nor for the lands conveyed to Laban R, Gwinn, except the deed of March 13, 1879, say anything about this right of way. The defendant Laban R. Gwinn, who now owns the 15 acre tract which includes the roadway in controversy, bought the same after the death of Breckenridge Gwinn.

Prom the foregoing statement of facts three questions are presented for the determination of this court, namely:

First: What estate if any did Breckenridge Gwinn take by the reservation under the deed of March 13, 1879? The deed describes his interest as "the privilege of locating and keeping open a wagon road through the land." It does not appear that Breckenridge Gwinn had any right to the roadway except such as he acquired under this deed. It was a new right created by this deed. The road did not exist at the time of this conveyance, was not built until some years afterwards, and was never used or accepted by him, although he lived for more than twenty years after that time. It does not appear that Breckenridge Gwinn ever owned the land upon which the road was to be located. The evidence with reference to his interest in some of the land conveyed by said deed is not sufficient to justify the conclusion that Breckenridge Gwinn ever owned the 15 acre tract, nor that this was ever a part of his 80 acre tract on which he lived, or that the land upon which the road is located and the 80 acre tract were ever parts of the same tract.

Appellant insists that if it is a reservation in favor of Breckenridge Gwinn, it is void, being made to a.stranger; that "to make a reddendum good, if it be of anything newly created by the deed, the reservation must be to the grantors of same, or one of them, and not to a stranger to the deed." 1 Cooley's Blackstone, third edition, p. 299. See also Martin v. Cook, 102 Mich. 267, 273, 274; Buchard v. Walter, 58 Neb. 539, 542; Haverhill Savings Bank v. Griffin, 68 N. E. (Mass.) 839; Ives v. Van Aucken, 34 Barb. 566; Sheppard's Touchstone, 80. In Murphy v. Lee, 11 N. E. (Mass.) 552, it is said: "But, if there had been an express reservation of the right of way to the defendant's grantor, it would not have created an easement in him. He was not a party to the deed, and a reservation In a deed cannot create an easement in a stranger to it, Stockwell v. Couillard, 129 Mass., at page 231; In re Young,

11 R. I. 637; Bridger v. Pierson, 4:5 N. Y. 601; Hornbeck v. Westbrook, 9 Johns. 73." So an attempt to reserve a right to cut wood to a stranger is void. Petition of Young, 11 R. I. 536; and of a burial place, Herbert v. Poe, 72 Md. 307; so of a reservation of a strip of land to a railroad not a party to the deed; Illinois Central Railroad Co. v. Indiana, Etc., Railroad Co., 85 111. 211. The same doctrine applies to ways, they can not be reserved to a stranger. "If created by reservation it must be to the grantor himself." "Washburn on Easements, page 34. A deed may by reservation preserve an existing right of way in a stranger but cannot create it. Bridger v. Pierson, supra. In Edwards Hall Co. v. Dresser, 46 N. E. (Mass.) 420, it is said: "The first exception of the plaintiffs relates to the right of the trustee of the estate of Edwards to use the passageway. The only deed which bears upon this is a deed from William Edwards to the defendant, dated May 1, 1860, in which is this clause. The grantor, 'reserving to himself, his heirs and assigns, and to John Edwards, the right to pass in and over the said premises to and from the land in the rear of their store, whenever they shall desire, unless the said Dresser, his heirs or assigns, shall provide some other and convenient way over his land adjoining the said premises to the north, to the parties aforesaid in its stead.' John Edwards was not a party to the deed, and the reservation to him was void. 1 Shep. Touch. (Presto Ed.); Wrashb. Easem. (4th Ed.) 34."

But the view we take of this deed is that by it the grantors do not purport to convey an estate to Breckenridge Gwinn. The expression used in the deed only creates an exception of qualification to the habendum clause of the deed, and not a reservation by way of a reddendum clause. It is merely a limitation on the estate conveyed to Wm. Leroy Gwinn. The grantee, Wm. Leroy Gwinn, took an estate in fee, but burdened with a privilege reserved in favor of Breckenridge Gwinn a privilege which becomes extinct at the death of Breckenridge Gwinn. It Is quite clear that Breckenridge Gwinn acquired no right to the roadway under this deed, which would pass by inheritance to his heirs, or by deed to his grantees after his death.

The second question presented for determination is: Have the plaintiffs the right...