Webb v. Jones

• Decision Date: 24 November 1909
• Parties: WEBB v. JONES ET AL.
• Court: Alabama Supreme Court

50 So. 887

163 Ala. 637

WEBB v. JONES ET AL.

Supreme Court of Alabama

November 24, 1909

Appeal from Chancery Court, Marengo County; Thomas H. Smith Chancellor.

Bill by V. M. Jones and others against John C. Webb for the establishment and perpetuation of a right of way. Decree for complainants, and defendant appeals. Affirmed.

Pettus Jeffries & Pettus and Henry McDaniel, for appellant.

Reese &amp Reese, Daniel Partridge, Jr., and A. D. Pitts, for appellees.

SAYRE J.

Henry W. Reese left a will by which he appointed Henry F. Reese, his son, and Henry Withers, his son-in-law, his executors and trustees to perform the trusts created thereby, and devised to them the land described in the bill in trust for his children, with power to sell at discretion. The bill is filed by the parties named in their capacities as executors and as individuals; they with Virginia M. Jones, and the children of Mrs. Withers, deceased, constituting the parties complainant and all the devisees under the will. In the year 1900 the executors, by a deed executed in pursuance of the power given them by the will, conveyed the land to Mrs. Kelly, under whom the defendant, appellant here, claims by mesne conveyances. In the habendum there were these words: "The party of the first part (meaning the executors) expressly reserves the right of egress and ingress over the above land to and from certain lands belonging to said estate which lie westerly of the lands herein sold." The bill is filed against Webb to have a reasonably convenient way of egress and ingress over the lands defined, established, and perpetuated by the orders and decree of the chancery court.

The controverted rights of the parties depend upon the purpose and effect of that clause of the deed quoted above. Whether that clause operated as reservation or as exception, there can be no reason to doubt that it fastened the servitude of a right of passage over the land now the property of the defendant. Webb v. Robbins, 77 Ala. 176; Jackson v. Snodgrass, 140 Ala. 365, 37 So. 246. Nor is it an objection to the easement that it arises out of the deed made by executors in the execution of their trust. Washburn on Easements, 261. But the appellant contends that the clause must be held to take effect as a reservation; the end of this argument being that, since a reservation operates as the creation of a new right issuing out of the land conveyed, the absence of words of inheritance qualifying the reservation must in reason coerce the court to the conclusion that the easement so created is an easement in gross, or personal to the executors. And, further, the argument along this line takes the form of an assertion that the reservation by the executors of a right personal to themselves is a breach of trust, and therefore void. Upon the assertion that the easement reserved, if valid for any purpose, was personal to the executors, is grounded also the contention that there is a misjoinder of the other parties complainant.

We assign no overshadowing influence to the fact that the clause in question was cast in the form of a reservation. The prime purpose of all interpretation is to arrive at the intention of the parties to the instrument under examination. It is true that the bias of presumptive construction must incline ordinarily against a grantor, whose office it is to speak. Jacobs v. Roach, 49 So. 576. But the learning in respect to the distinctions between reservations and exceptions is artificial, and so apt not to be observed in the preparation of deeds that at this time the courts construe a reservation as an exception, and vice versa, in order to give effect to the obvious intention of the parties. Bowen v. Conner, 6 Cush. (Mass.) 132; Winthrop v. Fairbanks, 41 Me. 307; White v. N. Y., etc., R. R. Co., 156 Mass. 181, 30 N.E. 612. "As an exception may be created by words of reservation, little reliance can be placed upon the language used in determining whether the right is by way of exception or by way of reservation." Claffin v. B. & A. R. R. Co., 157 Mass. 489, 32 N.E. 659, 20 L. R. A. 638: Form, then, must be brushed aside when once the court, looking through form to substance, is able to discern clearly the real purpose and intent of the parties. Looking to the condition of the estate granted and the surroundings of the parties (Salisbury v. Andrews, 19 Pick. [ Mass.] 250; Clark v. Devoe, 124 N.Y. 120, 26 N.E. 275, 21 Am. St. Rep. 652), there can be no real difficulty in reaching the conclusion that the grantors intended to secure an easement of passage over the land which should be appurtenant to the land retained.

The tract retained, in favor of which the servitude was stipulated, was bounded on the west and south by the estate of another owner, and by creeks and sloughs which made egress and ingress on those sides impracticable, if not impossible. The land conveyed to appellant's predecessor in title lay along the north and east. Van Dorn and Demopolis were the nearest market places, and these points had been reached by roads leading across the land conveyed to the public road between Van Dorn and Arcola. The vendors were in the execution of powers granted to them in trust for themselves and other devisees of the late owner. Presumptively they were acting for the trust estate as an entirety, and not merely for their personal advantage. If, as appellant contends, the reservation of a right of way personal to the executors would have been a breach of trust on their part, this must be a circumstance which would incline the court to hold the easement appurtenant, and not in gross. Moreover, the value of the tract retained depended upon its accessibility from the public road. It was clear that the tract retained would be wholly inaccessible, unless the grantors and their successors in title were to have the right to use some way over the tract conveyed. Under these circumstances it is difficult to believe that the parties intended to stipulate for an easement personal to the executors. On the contrary, the reasonable conclusion arising naturally out of the situation is that the easement was reserved for the benefit of the adjacent land retained.

And this consideration is conclusive to the same effect. Section 3396 of the Code provides that every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended. In Karmuller v Krotz, 18 Iowa, 352, tenants in common entered into a deed of partition which contained this clause: "It is also further distinctly understood that the said John Krotz should have the privilege of a road through the land of the said Bernhart, so as to enable him to take the nearest and best road to Dubuque." Judge Dillon, speaking for the court, and noting that by a statute of that state the term "heirs" or other technical words of inheritance were not...