Munro v. Meech

• Decision Date: 10 February 1893
• Court: Michigan Supreme Court
• Parties: MUNRO v. MEECH et al.

54 N.W. 290

94 Mich. 596

MUNRO v. MEECH et al.

Supreme Court of Michigan

February 10, 1893

Error to circuit court, Charlevoix county; J. G. Ramsdell, Judge.

Action in ejectment by Marceline Munro against Pollie F. Meech William S. Rathbone, and the Parkes Lumber Company. Judgment for plaintiff. Defendants bring error. Reversed. Fred W. Mayne, (Chamberlain & Guise, of counsel,) for appellants.

R. L Corbett, for appellee.

GRANT J., (after stating the facts.)

1. The principal question in the case arises upon the construction to be given to the deed from Cole to Munro plaintiff contending that it conveyed the fee of the land, and defendants contending that it conveyed only an easement or corporeal hereditament. The intent to be gathered from "the four corners" of the instrument must control, and every word given effect, and harmonized with the rest of the instrument, if possible. Moran v. Lezotte, 54 Mich. 83, 19 N.W. 757. The enjoyment of the particular right granted may require the permanent and exclusive use of the land out of which it is granted, but this will not operate to convey the fee. Chief Justice Shaw, speaking for the supreme court of Massachusetts, said: "The general rule is that the right of the public or of individuals to the use of land of others for a precise and definite purpose, not inconsistent with a general right of property in the owner of the soil, is, in contemplation of law, an easement or franchise, and not a right of property in the soil, even though it deprive the owner of all use of, or beneficial interest in, the land." Harback v. Boston, 10 Cush. 295; Smith v. Wiggin, 48 N.H. 105. The deed in this case recites that the grantor is the owner of the fee, and he expressly conveys only the right to build and use a dock. The right so conveyed is entirely consistent with the retention of the ownership of the soil. It is no more permanent or exclusive than the use of property acquired by grant for a railroad right of way, or for other railroad purposes. In Ryan v. Wilson, 9 Mich. 262, the grantor conveyed to his son one half of his farm, reserving to himself the other half, "for and during his natural life, and after his decease to revert to the party of the second part, and his heirs, forever." It was held that no title to the land reserved passed by the deed to the grantee; Justice Campbell holding that "no estate can pass by deed that is not embraced plainly in the words of grant." In the present case no more apt words could be chosen to indicate the intention of the grantor to retain the fee, and convey only the right to use the land for the purpose mentioned. In view of this plain language the words "the above right to include all the rights of said party of the first part," etc., must be held to refer to the right conveyed, so that no doubt might exist as to the right of the grantee to use all the land south and east of said lines for the purpose indicated in the conveyance. The plaintiff failed to prove the title set forth in the declaration, and the court erred in admitting the deed in evidence and in refusing to direct a verdict for the defendants.

2. In view of further possible litigation, it is proper to dispose of two other points raised in the case. Defendants pleaded a former suit...