Terry v. Tinsley

Decision Date18 September 1924
Citation124 S.E. 290
PartiesTERRY et al. v. TINSLEY.
CourtVirginia Supreme Court

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Roadway.]

Appeal from Circuit Court, Roanoke County.

Suit by E. O. Tinsley against J. Coles Terry, Sr., and another. Decree for plaintiff, and defendants appeal. Affirmed.

Jackson & Henson, of Roanoke, for appellants.

Horace M. Fox and S. Harris Hoge, both of Roanoke, for appellee.

PRENTIS, J. The title to, as well as the proper location and use of, a roadway claimed by the above-named appellants (and J. Coles Terry, Jr., who does not unite in this appeal), through the land of E. O. Tinsley, the appeUee, is the subject of this controversy.

The question is raised by a bill filed by Tinsley, and the decree is in his favor. It must be determined by the true construction of two conveyances.

In 1914, J. Coles Terry, Sr., and his two children, J. Coles Terry, Jr., and Grace Terry (now; Mrs. Moncure) were the owners of 349.2 acres of land, the southern boundary of which was the center of the Roanoke and Floyd turnpike. They wished to sell, and John O. Coles desired part of it, but, being unable to pay for it, he agreed with S. H. Willett and Tinsley that he would take the deed, that cotemporaneously they would divide it as agreed upon, and that each would pay for his portion. Under this agreement Tinsley was to have 54 1/2 acres,, that portion which fronted on the turnpike. In accordance with this understanding, J. Coles Terry, Sr., representing himself and the other two grantors, met John C. Coles and Tinsley at an attorney's office on March 20, 1914, and the two deeds here to be construed were prepared, the one from the Terrys, dated March 19, » conveying the entire tract of Coles, and the.other from Coles, dated March 20, conveying the 54 1/2 acres, part thereof, to Tins-ley. Both deeds were acknowledged for record on the same day, March 20. A letter from J. Coles Terry, Sr., dated March 21, 1914, shows that he knew that Tinsley was to contribute part of the cash consideration, and suggested that it be paid by Tinsley directly to him in satisfaction of Coles' obligation. The deed from the Terrys to Coles conveys the entire tract by metes and bounds, and contains these clauses referring to the roadway in dispute:

"It is distinctly understood and agreed between the parties hereto that there is reserved from this conveyance a strip of land twenty (20) feet in width leading from a point on the Roanoke and Floyd turnpike where the old original road intersects said pike, following the old road leading from said pike to George Page's gate, running from thence on the north side of the fence, and the north side of George Page's house through the pine land and timber land to J. Coles Terry, Jr., line. The grantors or their assigns in using and locating said roadway shall have the right to make convenient location, but such location shall be confined to the pine and timber land."

"It is further distinctly understood and agreed between the parties hereto that the grantee herein named shall have the right to use in common with the grantors the roadway first hereinabove reserved leading from Roanoke and Floyd turnpike to J. Coles Terry, Jr., line, but this right of user or easement to the said grantee shall be strictly a personal privilege, and he shall have no right to transfer or assign said right of user or easement."

Then, in the deed cotemporaneously acknowledged from Coles to Tinsley, is this clause:

"It is distinctly understood and agreed between the parties hereto that this conveyance is made by the grantors to the grantee subject to a roadway reservation twenty (20) feet wide leading from a point on the Roanoke and Floyd turnpike where the old original road intersects said pike, following the old road leading from said pike to George Page's gate, running from thence on the north side of the fence on north side of George Page's house through the pine and timber land to J. Coles Terry, Jr., line, which reservation is set out in detail in a certain deed from J. Coles Terry, Sr., and others, to the said J. C. Coles, bearing date of the 19th day of March, 1014, and to which deed reference is hereby made for a more detailed and accurate statement of said roadway reservations."

For about seven years thereafter no misunderstanding arose, and there was no effort to locate the roadway so far as not already located by the express language used. In 1921 or 1922. Mrs. Moncure built a summer house on land north of the Tinsley land, and claimed the right to locate a 20-foot roadway,...

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10 cases
  • Malamphy v. Potomac Edison Co.
    • United States
    • West Virginia Supreme Court
    • October 12, 1954
    ...Bank v. Lilly, 116 W.Va. 608, 621, 182 S.E. 767, 102 A.L.R. 462; 2 Devlin on Real Eatate, Third Edition, § 980. See Terry v. Tinsley, 140 Va. 240, 124 S.E. 290. It will be noted that the deed of conveyance from the Cumberland Railway Company refers to the exception as two certain roads call......
  • Shirley v. Shirley
    • United States
    • Virginia Supreme Court
    • March 3, 2000
    ...excludes or withdraws a pre-existing right from the property conveyed that would otherwise pass to the grantee. Terry v. Tinsley, 140 Va. 240, 246, 124 S.E. 290, 292 (1924). Frequently, the words "reserved" and "excepted" are used interchangeably. Id. 6. To the extent that Katherine relies ......
  • Good v. Petticrew
    • United States
    • Virginia Supreme Court
    • January 16, 1936
    ...of way at all points at which fences extend to such roads on each side thereof." Meadows Meadows, 143 Va. 98, 129 S.E. 354; Terry Tinsley, 140 Va. 240, 124 S.E. 290. It is contended by the complainant that the statute was not intended to apply to this case because the respondents only owned......
  • Good v. Petticrew
    • United States
    • Virginia Supreme Court
    • January 16, 1936
    ...at all points at which fences extend to such roads on each side thereof." Meadows v. Meadows, 143 Va. 98, 129 S.E. 354; Terry v. Tinsley, 140 Va. 240, 124 S.E. 290. It is contended by the complainant that the statute was not intended to apply to this case because the respondents only owned ......
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