Hall v. Hall

• Decision Date: 07 February 1910
• Citation: 106 Me. 389,76 A. 705
• Parties: HALL v. HALL.
• Court: Maine Supreme Court

76 A. 705

106 Me. 389

HALL

v. HALL.

Supreme Judicial Court of Maine.

Feb. 7, 1910.

Exceptions from Supreme Judicial Court, Lincoln County.

Action by Chester D. Hall against Ursula M. Hall. From a verdict for plaintiff, defendant brings exceptions. Exceptions overruled.

Action on the case to recover damages for the obstruction by the defendant of the plaintiff's alleged right of way over the defendant's land in Nobleboro, Lincoln county. Plea, the general issue. At the conclusion of the evidence, and on the plaintiff's motion, the presiding justice ordered a verdict for the plaintiff and for "a nominal sum as damages," and thereupon the jury returned a verdict for the plaintiff with damages assessed at $1, and the defendant excepted.

Argued before EMERY, C. J., and SPEAR, CORNISH, KING, and BIRD, JJ.

Arthur S. Littiefield and Howard E. Hall, for plaintiff.

Wm. Henry Hilton, for defendant.

CORNISH, J. On September 22, 1864, Horace Hall being the then owner of a tract of land in Nobleboro containing about 45 acres, and bounded on the south by the "West Neck Road," so called, 'conveyed by warranty deed to Elbridge G. Hall the portion of the same on which the buildings were located, lying next to the road, and comprising about five acres. This deed contained the following clause which is now before the court for construction: "Reserving to me, the said Horace Hall, a right of way in common with the said Elbridge G. Hall, to and from and acrost the above-described premises, meaning a cart road to and from my land." The portion retained by Horace Hall, the dominant estate, has come down by mesne conveyances in three lots; the lot next back from the Elbridge Hall lot being acquired by Mary A. Hall, the next by George L. Hall, and the rear lot, sometimes called the "Peter field," by the plaintiff. The defendant similarly acquired the servient estate the portion conveyed by Horace to Elbridge G. Hall. Horace Hall died in 1880.

This right of way across the defendant's lot has been used to a greater or less extent by the plaintiff and his predecessors in title until the summer of 1908, when it was obstructed by the defendant, and the plaintiff brought this action on the case to recover damages for such obstruction. The presiding justice directed a verdict for the plaintiff, and the case is before this court on exceptions to this ruling.

Two questions are presented for consideration: First, did the clause in the deed above quoted create a reservation limited to the lifetime of Horace Hall as claimed by the defendant, or did it create an exception in favor of the grantor appurtenant to the remaining land, and passing to heirs or assigns without words of inheritance, as claimed by the plaintiff? Second, was the easement extinguished?

A brief recital of long and firmly established legal principles will determine both questions in favor of the plaintiff.

It is an unyielding rule of the common law that the word "heirs" is necessary in order to convey a fee simple in land, it matters not how plainly the intention so to do may be expressed in other words of perpetuity. But this rule is not applicable to an "exception" of an easement appurtenant to other land of the grantor, which operates to retain in the grantor some portion of his former estate, and whatever is thus excepted or taken out of the grant remains in him as of his former title. An exception is of a part of the thing granted and of a thing in being at the time of the grant. A reservation, however, vests in the grantor some new right or interest that did not exist in him before. It operates by way of an implied grant, and, in the absence of words of inheritance, only an estate for the life of the grantor is created. See Engel v. Ayer, 85 Me. 448, 27 Atl. 352, and cases cited.

Whether a given clause creates a reservation or an exception is not so much a question of words as of intention to be gathered from all the circumstances of the case, so that the term "except" has been construed to create a reservation and the term "reserve" an exception. "Whether a particular provision is intended to operate as an exception or reservation is to be determined by its character, rather than by the particular words used." Perkins v. Stockwell, 131 Mass. 529; Ring v. Walker, 87 Me. 550, 33 Atl. 174.

In conformity with this broad and liberal rule of construction, the following may be cited as examples of provisions which in terms were reservations but were held to create exceptions: "Reserving forever a right of way over a street which the grantee is to make, from the northwest corner of said granted lot to the road." Bowen v. Conner,

6 Cush. (Mass.) 132. "Reserving the pass-way at grade over said railroad where now made." White v. R. R. Co., 156 Mass. 181, 30 N. E. 612. "Reserving the right to cross the track of said railroad on grade near the westerly line of our said lands at such...