Long v. Fewer
| Decision Date | 27 April 1893 |
| Citation | 54 N.W. 1071,53 Minn. 156 |
| Parties | Edward Long v. Joanna Fewer |
| Court | Minnesota Supreme Court |
Submitted on briefs April 21, 1893
Appeal by defendant, Joanna Fewer, from a judgment of the District Court of Hennepin County, Frederick Hooker, J., entered May 28, 1892.
On July 3, 1857, John Kopp owned lots nine (9) and ten (10) in block twelve (12) in Bottineau's Addition to St. Anthony. The lots lay side by side in the southwest corner of the block. Each was sixty-six (66) feet front on Marshall street, and one hundred and fifty-seven and a fourth feet deep. Kopp divided up the two lots into four by cutting off the rear forty-five and a fourth feet as one lot, and making next to it an alley twelve feet wide, and making three lots of the residue fronting on Marshall street, each forty-four (44) feet front by one hundred (100) feet deep. The subdivision is shown on the map.
The middle lot of the three which front on Marshall street, Kopp and wife on that day (July 3, 1857) sold and conveyed to Charles Ende. The deed was not artfully drawn. Its material terms are recited in the opinion. On May 2, 1883, Ende conveyed to the plaintiff, Edward Long. On April 8, 1858 Kopp and wife conveyed to defendant the adjacent lot on the south and the one east of the alley. Afterwards on December 5, 1887, John Kopp, then a widower, quitclaimed [SEE ILLUSTRATION IN ORIGINAL] all his interest in the original lots nine (9) and ten (10) to the defendant Joanna Fewer. She afterwards in August, 1890, fenced up the twelve foot alley claiming that plaintiff had no easement in, or right of passage over it. He commenced this action to compel her to take down the fence, and to enjoin her from obstructing the alley. The issues were tried April 30, 1891. Findings were made and judgment for plaintiff entered thereon. Defendant appeals.
Judgment affirmed.
Geo. R Robinson, for appellant.
Defendant insists on this appeal that the language used in the conveyance to Ende under which plaintiff claims, viz. "reserved by John Kopp," excludes any implication of a grant. Defendant concedes that if the conveyance had granted to an alley, an easement would have passed to the grantee, but a reservation in the legal sense is some right reserved out of the thing granted. Here the thing is not granted, but reserved, that is, retained, kept back.
Koon, Whelan & Bennett, for respondent.
The language of the deed from Kopp to Ende, and from Ende to the plaintiff, was sufficient to grant an easement of a right of way over the alley as an appurtenance to his lot.
Selling land and bounding it on an alley, which lies on grantor's own land, conveys a right of way over the alley. O'Linda v. Lothrop, 21 Pick. 292; Parker v. Smith, 17 Mass. 413; Bedeau v. Mead, 14 Barb. 328; Smith v. Lock, 18 Mich. 56; Fox v. Union Sugar Refinery, 109 Mass. 292; Cox v. James, 45 N.Y. 557.
It is claimed by defendant that the effect of the expression in these deeds, "reserved by John Kopp," destroys the easement which would have been granted if the land had been merely described as bounded on the alley. A deed is to be construed as a whole, or as has been well said, by "taking it by the four corners." The circumstances surrounding the making of it, may be taken into account. Sanborn v. City of Minneapolis, 35 Minn. 314; St. Paul Union Depot Co. v. St. Paul, M. & M. Ry. Co., 35 Minn. 320; Lovejoy v. Gaskill, 30 Minn. 137; Winston v. Johnson, 42 Minn. 398.
The expression "reserved by John Kopp" evidently means set apart, or set aside, by John Kopp, for use as an alley, as an appurtenance to, and for the benefit of, these sublots which he had carved out of the original tract. This is the only reasonable meaning that any one can give this expression used in the deed; whether he construes it entirely by the deed itself, or in connection with the circumstances surrounding the making of it. It is merely descriptive of the alley, and is an assurance from the grantor to his grantee, that the land embraced in it has been set apart as an alley.
The only question in this case arises upon the construction of...
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