Lintner v. Office Supply Co.

• Decision Date: 08 May 1928
• Citation: 196 Wis. 36,219 N.W. 420
• Parties: LINTNER v. OFFICE SUPPLY CO., INC., ET AL.
• Court: Wisconsin Supreme Court

196 Wis. 36

219 N.W. 420

LINTNER

v.OFFICE SUPPLY CO., INC., ET AL.

Supreme Court of Wisconsin.

May 8, 1928.

Appeal from a judgment of the Municipal Court for Racine County; E. R. Burgess, Judge, dismissing plaintiff's complaint, with costs.

Action by Frank C. Lintner against the Office Supply Company, Inc., and others. Judgment for defendants, and plaintiff appeals. Affirmed.--[By Editorial Staff.]

The action was brought by the plaintiff to perpetually enjoin the defendants from entering upon and traveling, by vehicle or otherwise, over the 10-foot strip of land described in the complaint, and from interfering in any manner with the use and occupancy of said strip by the plaintiff. In order to facilitate the identification of the property involved in this strip, we hereby print a map of block 33 of the original plat of Racine.

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We have carefully examined the statement of facts contained in defendants' brief and believe the same correct, and in order to save time we take the liberty of largely reproducing such statement for the purpose of elucidating and describing the property involved, the names of the persons interested therein, and their respective rights.

Block 33 aforesaid is bounded on the north by Sixth street, on the east by Main street, on the west by Wisconsin street, and on the south by Seventh street. Lots 1 and 2 face Main street and are each 60 feet wide and 120 feet in length. Lots 8 and 9 lie directly west of lots 1 and 2 and are of the same size as such lots, and face Wisconsin street. Lots 1 and 9 abut lengthwise on Sixth street, and these four lots, viz., 1, 2, 8, and 9, have been subdivided into smaller parcels 20 feet wide and upward, by 120 feet deep. These smaller lots, facing on Sixth street, are occupied by store buildings, the numbers of which run from east to west. Lot 7 lies directly south of and adjacent to lot 8, and faces west on Wisconsin street. The west 112 feet of the north 10 feet of lot 7 is the strip of land herein in controversy. It is used as a common driveway by the plaintiff and a number of the owners of these stores facing on Sixth street, and other adjoining property owners, in order to reach their respective properties from Wisconsin street. For convenience' sake, the strip in dispute and which is colored black on the map will be termed an “alley.”

The plaintiff owns a store building facing Wisconsin street, which, with the alley in dispute, occupies the entire street frontage of lot 7 on Wisconsin street. The defendants are tenants of a building known as 209 Sixth street, belonging to the estate of C. I. Shoop, deceased, of which M. E. Walker and J. B. Simmons are testamentary trustees. The building at 211 Sixth street, adjoining the Shoop building on the west, was owned by J. E. Rowlands, now deceased. Next west of 211 Sixth street was the William Henry Miller building, known as 213 Sixth street, and then came a double building, 215-217 Sixth street, owned by Joseph A. Lawrence and Anna M. Clark. The owners of these buildings, excepting the Shoop building, had acquired rights of way over said alley and have been using the same as a driveway to and from Wisconsin street for many years prior to the commencement of this action. The defendants and their employees had used this driveway to and from the Shoop building prior to the suit, under verbal permission from Lawrence. After the commencement of the suit and before the trial, the trustees of the Shoop estate obtained from Lawrence and Clark a deed granting to them, their tenants, successors and assigns, a right of way over the alley as appurtenant to the Shoop building. It is admitted that both the plaintiff and the defendants trace their alleged rights in and to the alley to James Bolton and Evan O. Jones.

The prominent and outstanding issue in this case is one that involves the title to the alley. In 1866 Bolton and Jones, the then owners of the alley, duly executed and delivered an instrument in writing, duly signed, witnessed, and acknowledged, to one Hugh G. Williams, which instrument, after the recitals in the premises, contained the following alleged granting clause, to wit:

“That the said parties of the first part, for and in consideration of the sum of two hundred dollars, to them in hand paid, by the said party of the second part the receipt whereof is hereby confessed and acknowledged, have granted, bargained, sold, aliened, conveyed and confirmed and by these presents do grant, bargain, sell, alien, convey and confirm unto the said party of the second part, and to his heirs and assigns, forever, all that certain piece or parcel of land situated in said city of Racine, known and described as a part of lot numbered seven (7) in block number thirty-three (33) according to the original plat of Racine made by Moses Vilas, surveyor, and recorded in the office of the register of deeds for said county of Racine, bounded as follows: Commencing at the northwest corner of said lot number seven (7); run thence east on the north line of said lot one hundred and twelve (112) feet; run thence southerly on a line parallel with the east line of said lot ten (10) feet; run thence west one hundred and twelve (112) feet on a line parallel with and ten feet distant from the said north line of said lot to the west line thereof; thence north to the place of beginning to be used as a private road or way in common with the parties of the first part, their heirs and assigns, forever. Together with all and singular the hereditaments and appurtenances thereto in any wise appertaining;

To have and to hold the same, unto said party of the second part, his heirs and assigns, to their sole use forever. And the said James Bolton and Evan O. Jones, parties of the first part, for themselves, their heirs, executors, administrators, do hereby covenant with the said parties of the second part, their heirs, executors, administrators and assigns, that at the time of the delivery of these presents, they are well seized of the above-granted premises, as of an indefeasible estate of inheritance, in fee simple. That the same are free and clear from all liens and incumbrances whatever; and that the same in the quiet and peaceable possession and enjoyment of the said parties of the second part, their heirs and assigns forever, against all persons lawfully claiming the same, or in any part thereof, they will forever warrant and defend.”

The foregoing instrument was promptly recorded in the office of the register of deeds for Racine county. Through a series of mesne conveyances thereafter, the alleged title to this alley appears of record in Joseph A. Lawrence and Anna M. Clark.

The lower court construed the aforesaid instrument from Bolton and Jones to Hugh G. Williams as a warranty deed, conveying the title to the alley to the grantee, but reserving in the grantors, their heirs and assigns, the right to use the alley in common with the grantee, his heirs and assigns. Judgment having been duly entered in favor of the defendants, the plaintiff has prosecuted this appeal.

Foley, Brach & Colbert, of Racine, for appellant.

Simmons, Walker & Wratten, of Racine, for respondents.

DOERFLER, J.

What was the effect of the instrument of conveyance from Bolton and Jones to Williams? Did it convey a fee in the alley to the grantee, with a reservation of use in the grantors, or did it merely convey a right of way? A correct solution of this question, in our view, is determinative of the issues in the case. Such was also the view of the lower court, expressed in its opinion.

The instrument of conveyance is clearly in the form of a warranty deed. The clause above quoted, known as the “granting clause” in a deed, is one in common use in warranty deeds in Wisconsin. Plaintiff's counsel contend that the words immediately following the description in the granting clause, to wit, “To be used as a private road or way in common with the parties of the first part, their heirs and assigns, forever,” indicate that it was the intention of the grantors to merely convey an easement, and not the title; furthermore, plaintiff's counsel place considerable significance in the words in the instrument through which the scrivener has seen fit to draw a line. In any event, counsel for the plaintiff assert that the language employed in the instrument is such as to raise a doubt as to the intention of the grantors, whether they intended to convey the title or merely an easement.

[1] The rule is well entrenched in our jurisprudence that doubtful language contained in an instrument of conveyance will be most strictly construed against the grantor who has employed such language; and this view is forcibly expressed in 8 R. C. L. 1051, as follows:

“A deed is construed most strongly against the grantor and in favor of the grantee. This rule has been called one of the most just and sound principles of the law, because of the fact that the grantor selects his own language. * * * If, therefore, the deed can inure in different ways, the grantee, it is said, may take it in such way as will be most to his advantage.”

If the grantors had in mind the conveyance of a mere easement, they would have employed language ordinarily used to effect that purpose. The form of the instrument and the language used and the words eliminated from the form by the line drawn through them, are persuasive that the scrivener was not a mere ordinary conveyancer, but that he comprehended the legal meaning of the words eliminated, and realized that their retention would have been inconsistent with the intentions of the parties with respect to the object and purpose had in mind by the grantors in regard to what they intended to convey. In other words, in order to be as plain as possible, if the language eliminated had been permitted to remain in the instrument, it would have signified an absolute conveyance of the alley in fee simple, without any reservations whatsoever. The language employed,...