Kister v. Reeser
| Decision Date | 20 June 1881 |
| Citation | 98 Pa. 1 |
| Parties | Kister v. Reeser. |
| Court | Pennsylvania Supreme Court |
May 3 1881
1. A clause in a deed conveying in fee a portion of a tract of land belonging to the grantor, to the effect that " the said A. B., grantor, doth reserve a road ten feet wide along the line of C. D., to be shut at each end by a bar or gate," will be construed to constitute a reservation to the grantor of a right of way, and not an exception from the conveyance of a ten-foot-wide strip of land.
2. A B. having conveyed a portion of a tract of land belonging to him by a deed containing the above reservation, one E., by various mesne conveyances, became seised thereof. A. B afterwards conveyed to his son F. another portion of said tract, by deed, which made no mention, however, of the reservation. Afterwards A. B. died. E. subsequently fenced in the land over which the right of way had been reserved, but F., entering, broke down the fences and passed over the same. In an action of trespass brought by E. against F.. Held, that the plaintiff was entitled to recover.
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.
ERROR to the Court of Common Pleas of York county. Of May Term, 1881, No. 134.
Trespass quare clausum fregit, by Isaac Kister against George Reeser et al. On the trial, before FISHER, P. J. the following facts appeared:
By indenture dated September 30th 1865, William Reeser and wife granted and conveyed to Henry H. Drorbaugh and his heirs a tract of land containing about nineteen acres, part of a larger tract of land owned by the said William Reeser in fee. This deed contained the following clause: " The said William Reeser doth reserve a road ten feet wide along the line of Joseph Burger, to be shut at each end by a bar or gate." Burger's land formed one of the boundaries of the tract granted.
By indenture dated November 13th 1867, Drorbaugh and wife granted and conveyed the said tract to Isaac Frazer and his heirs. This deed contained the following recital: " This being the same tract of land that William Reeser deeded to Henry H. Drorbaugh by deed dated the thirtieth day of September A. D. one thousand eight hundred and sixty-five wherein said William Reeser reserves a road ten feet in width along the line of Joseph Burger's land, to be shut at each end with a bar or gate."
By indenture dated December 9th 1867, Frazer and wife granted and conveyed the same tract to Isaac Kister and his heirs. This deed also contained the last-mentioned recital.
William Reeser died in March, 1872. Prior to his death the said William Reeser, by indenture dated March 3d 1872, granted and conveyed to his son, George Reeser, Sr., one of the defendants, another portion of the said large tract of land. This deed contains no mention of the privilege of the said road reserved by the said William Reeser in his deed to Drorbaugh. George Reeser, Sr., however, claims under the said reservation the use of a ten-feet-wide way over the land of Isaac Kister along the line of Joseph Burger.
In April 1880, Isaac Kister placed a permanent fence at each end of the line of reservation mentioned in the deed of William Reeser to Drorbaugh. A short time afterwards George Reeser, Sr., and the other defendants, broke down the said fences, entered upon Kister's land, and drove a wagon across the same. For this alleged trespass Isaac Kister brought this suit.
The plaintiff requested the Court to charge, substantially, that the right to a road reserved by William Reeser in his deed to Drorbaugh not having been reserved to the heirs and assigns of William Reeser, ceased and determined on the death of William Reeser in March 1872, and that such reservation was no justification of the trespass committed by the defendant. The Court declined so to charge.
The defendants submitted, inter alia, the following point:
2. That under the legal effect of the reservation in said deed from William Reeser to Drorbaugh, the portion of land ten feet wide along the line of Joseph Burger, for the use of a road, is excepted out of the grant, and remained as it was before for the purposes of a road; that the evident purpose of said reservation was to furnish egress and regress from the other lands of the grantor to and from the public road leading to Goldsboro', and the defendant, being the owner of those other lands, had a legal right to pass in and out to said public road, over the said land reserved in said deed, and committed no trespass in doing so.
Answer. Under the reservation in the deed of William Reeser and wife to Henry H. Drorbaugh for nineteen acres and thirty-five perches, dated September 30th 1865, the defendant had a legal right to pass over the road reserved in said deed, and did not commit a trespass in by entering as he did the premises of the plaintiff.
The Court further instructed the jury that the plaintiff was not entitled to recover, and directed them to find for the defendants.
Verdict accordingly for the defendants, and judgment thereon. The plaintiff took this writ of error, assigning for error the answers to points as above, and the instruction to find for the defendants.
V. K Keesey (J. W. Bittinger with him), for the plaintiff in error.--The sole question in this case is whether the clause in the deed from William Reeser to Drorbaugh created in law an exception or a reservation. An exception excepts out of the thing granted a part of it, and leaves...
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