Reidinger v. Cleveland Iron Mining Co.

• Decision Date: 11 June 1878
• Court: Michigan Supreme Court
• Parties: Louis Reidinger v. The Cleveland Iron Mining Company

39 Mich. 30

Louis Reidinger v. The Cleveland Iron Mining Company

Supreme Court of Michigan

June 11, 1878

Submitted June 5, 1878

Error to Marquette.

Ejectment. Plaintiff brings error.

Judgment affirmed with costs.

F. O Clark for plaintiff in error. An exception from a deed should be described as fully as if the grantee were the grantor of the part excepted, 3 Washb. R. P., 369; Thompson v Gregory, 4 Johns. 81; Craig v. Wells, 11 N. Y 321; Provost v. Calder, 2 Wend. 517; Dygert v. Matthews, 11 Wend. 35; Ives v. Van Auken, 34 Barb. 566; if the subject of a grant cannot be ascertained by its description, the grant is void, 3 Wash. R. P., 331; 1 Wood on Conveyances, 206; Wofford v. McKinna, 23 Tex. 44; Shackleford v. Bailey, 35 III. 391; an exception from a deed cannot be given effect unless the description shows what land it was intended to convey, Ives v. Kimball, 1 Mich. 313; Doe v. Hubbard, 15 Ad. & El., 245; Peaslee v. Gee, 19 N. H., 273; Putnam v. Bond, 100 Mass. 58: 1 Amer. 82; Hall v. Davis, 36 N. H., 569; Sutton v. Bowker, 5 Grey 416; Daily v. Litchfield, 10 Mich. 40; 1 Greenl. Ev., § 301; where there is latent ambiguity in an exception, the claimant of the excepted property has the burden of defining it, Shep. Touch. 78, p. 156, No. 30; Doe v. Lock, 4 Nev. & Man., 807; 4 Kent's Com., 568, n. d.

W. P. Healy and G. V. N. Lothrop for defendant in error. Where an easement is granted without defined limits, its practical location and use by the grantee, acquiesced in by the grantor, determine what was intended as if it had been described in terms, Bannon v. Angier, 2 Allen 129; Stetson v. Curtis, 119 Mass. 266; Crocker v. Crocker, 5 Hun 587. See Choate v. Burnham, 7 Pick. 274; Galloway v. Wilder, 26 Mich. 97; Brown v. Thissell, 6 Cush. 254; Simonds v. Wellington, 10 Cush. 313; Purkiss v. Benson, 28 Mich. 538; Smith v. Galloway, 27 E. C. L., 28; Waterman v. Johnson, 13 Pick. 261.

OPINION

Cooley, J.

In the year 1857 the defendant, being then the owner of lot two on block three of a plat made by said company in addition to the city of Marquette, conveyed the same to William J. Gordon and Peter White, "reserving therefrom all that part of said lot above described which is now used and occupied by said Cleveland Iron Mining Company for railroad or railway purposes, to be used and occupied by the said Cleveland Iron Mining Company, its successors and assigns, so long as needed or desired by them for the right of way for said railroad or railway purposes." Gordon subsequently conveyed his interest in the premises to White, and White conveyed to the plaintiff. At the time defendant conveyed to Gordon and White, and ever since, defendant has occupied some portion of said lot with its railway track, but the evidence in this record tends to show that the occupation has not been confined within exactly the same limits as when the deed was given.

The plaintiff now brings ejectment for that portion of the lot which the defendant occupies. He claims, first, that what is called a reservation in the deed, but which is in fact an exception, is void on the face of the deed for ambiguity; and second, if not void, the party claiming the benefit of it must take the burden of proving what was intended by it, and that he is entitled to hold nothing which he does not clearly show was thereby excluded from the conveyance.

I. There is no ground for saying that there is any ambiguity on the face of the deed. The exception from the conveyance was of that portion of a certain lot which was then occupied for certain purposes. It is true the deed did not describe the parcel itself by metes and bounds, or refer to records, or to trees or stakes; but it gave a means of identification which presumptively was not only ample, but was as definite and certain as any that could well be suggested. A grant must always be applied to its subject by regarding it from the standpoint of the parties, and in the light of the knowledge they had at the time; Ives v. Kimball, 1 Mich. 308; Cooper v. Bigly, 13 Mich. 463; Anderson...