Schaffert v. Hartman, 42163

• Decision Date: 01 May 1979
• Docket Number: No. 42163,42163
• Citation: 278 N.W.2d 343,203 Neb. 271
• Parties: Eugene D. SCHAFFERT et al., Appellants, v. G. W. HARTMAN et al., Appellees.
• Court: Nebraska Supreme Court

Page 343

278 N.W.2d 343

203 Neb. 271

Eugene D. SCHAFFERT et al., Appellants, v. G. W. HARTMAN et al., Appellees.

No. 42163.

Supreme Court of Nebraska.

May 1, 1979.

Syllabus by the Court

1. Deeds: Conveyances: Grantor-Grantee. As used in the law of conveyancing, an exception is a withdrawal from the operation of the grant of some part of the thing granted; thus, where real estate is granted, a portion thereof may be excepted from the terms of the conveyance and the thing excepted remains in the grantor the same as if no grant had been made. An exception in a deed is nothing more than a qualification by which some part of the estate is not conveyed, but which would have passed to the grantee but for the exception.

2. Deeds: Conveyances: Grantor-Grantee: Easements. As used in the law of conveyancing, a reservation gives rise to some new thing issuing out of that which is granted. A reservation, while not affecting the title to the thing granted, may reserve to the grantor a right to the use or enjoyment of a portion thereof, as, for example, an easement.

3. Deeds: Conveyances: Contracts. The terms reservation and exception may be used as synonyms in conveyances and contracts, the description of what is being excepted or reserved normally making clear what is being accomplished and thus no ambiguity results.

4. Deeds: Conveyances. Where a deed is plain and unambiguous, its meaning is to be determined without reference to extrinsic facts.

5. Deeds: Conveyances: Intent. In determining the intent of the parties to a deed, the language of the instrument, together with the surrounding circumstances, are to be considered.

Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellants.

Hanson & Hanson, McCook, for appellees.

Heard before BOSLAUGH, McCOWN, CLINTON, and BRODKEY, JJ., and CANIGLIA, District Judge.

CLINTON, Justice.

This appeal arises from an action to quiet title to an undivided one-half interest in the oil, gas, and other minerals (hereafter for convenience referred to as minerals) in a tract of land, hereinafter identified as tract (A), in Hitchcock County, Nebraska, in the plaintiffs Schaffert. Schafferts and the defendants Hartman both filed motions for summary judgment on the ground there was no disputed issue of material fact and each was entitled to judgment as a matter of law. The court denied the motion of the Schafferts, granted the motion of the Hartmans, and quieted title in them to the disputed one-half interest. Schafferts then appealed to this court. We affirm.

The issue in the trial court and here is the construction and effect of a provision in a warranty deed by which Hartmans, on February 1, 1960, conveyed to Schafferts one continguous tract of land in Hitchcock County, designated by legal description, which consisted of tract (A) above referred to and additional land which we shall refer to as tract (B). In the deed, following the legal description of the property, was the following: ". . . excepting and reserving a half interest in the oil, gas and minerals, the intention being that the interest excepted and reserved by the grantors shall be subject to and reduced by outstanding mineral interests, and that this instrument shall accordingly convey to the grantees a full and unencumbered half interest in the oil, gas and minerals, along with all other rights in said property." The issue was submitted to the trial court upon the pleadings which incorporated a real estate contract and certain deeds of conveyance, admissions, answers to interrogatories, and affidavits. Neither party contends there is any question except one of law.

The record establishes the following undisputed facts. On June 17, 1950, Hartmans' predecessor in title conveyed to a third party an "undivided one-half interest in and to all of the oil, gas and other minerals in and under, and that may be produced" from tract (A). The instrument of conveyance recited that tract (A) was then "under an oil and gas lease." The habendum clause in the above conveyance was as follows: "TO HAVE AND TO HOLD the above described property, together with all and singular the rights, appurtenances thereto in anywise belonging unto the said Grantee, herein, his heirs and assigns for a period of the next 20 years from June 17, 1950 and as long thereafter as oil and/or gas is produced from these premises or the property is being developed or operated . . . ."

On December 28, 1959, the Hartmans, then the owners of tracts (A) and (B), contracted to sell the land to the Schafferts. The contract contained the following provision immediately following the legal description of the property: ". . . together with an undivided half interest in the oil, gas, mineral and royalty rights therein, the grantors hereby reserving to themselves an undivided half of the same subject to previous reservations in the chain of title, the intention being that the grantees shall have a full half interest in the said oil, gas, minerals and royalty rights."

On February 1, 1960, in consummation of the contract, the Hartmans conveyed to Schafferts the land (tracts (A) and (B)) by the deed which contained the provision quoted in the second paragraph of this opinion.

When the 20-year term mentioned in the mineral conveyance of June 17, 1950, expired, there had been no production of oil or gas from tract (A). At a later time, in 1975, oil and gas leases covering both tracts (A) and (B) were executed and delivered.

Schafferts contend that by virtue of the deed from the Hartmans they became the owners not only of an undivided one-half interest in the minerals in tracts (A) and (B), but also owners of the reversionary interest in the minerals in tract (A) which followed the expiration on June 17, 1970, of the term interest granted by the mineral conveyance of June 17, 1950.

Schafferts' argument is founded in part upon the fact that the terms "exception" and "reservation" are, in the...