Whitaker v. Brown

• Decision Date: 04 January 1864
• Citation: 46 Pa. 197
• Court: Pennsylvania Supreme Court
• Parties: Whitaker <I>versus</I> Brown.

Page 197

46 Pa. 197

Whitaker versus Brown.

Supreme Court of Pennsylvania.

January 4, 1864.

ERROR to the District Court of Allegheny county.

B. F. Lucas and John L. Case, for plaintiff in error.

H. Burgwin, for defendant.

Samuel A. & W. L. Purviance, for the heirs of Boyle Irwin, deceased, under whom the defendant claimed.

The opinion of the court was delivered, January 4th 1864, by WOODWARD, J.

On the 14th of March 1853, Boyle Irwin and wife conveyed by warranty deed, six and a half acres of land in Allegheny county, to Anthony Whitaker in fee, "he, the said Boyle Irwin, saving and reserving nevertheless for his own use, the coal contained in the said piece or parcel of land, together with free ingress and egress by wagon-road to haul the coal therefrom as wanted." Boyle Irwin is dead, and his rights in the coal, if descendible, are vested in his heirs, under whom the defendant justifies his entry to take coals.

It is argued that the above clause of the deed constituted a strict and technical reservation, which, having no words of perpetuity died with Irwin, and therefore that Whitaker now has a several and exclusive title to all the coal in the land conveyed to him. On the other hand, the argument is, that it was not a reservation but an exception, and therefore that no title to the coal passed to Whitaker by the deed. The question is, whether the words of the deed constituted a reservation or an exception.

Although they were apt words to constitute a reservation, yet so far as they affect the coal, they must operate as an exception, because the coal was a corporeal hereditament, in esse at the date of the deed, part of the land itself, and therefore not the subject of a reservation. Says Lord Coke, "note a diversity between an exception (which is ever of part of the thing granted and of a thing in esse) and a reservation, which is always of a thing not in esse, but newly created, or reserved out of the land or tenement demised." And his criticism upon the word reserve is as follows: "Reserve cometh of the Latin word reservo; that is, to provide for store, as when a man departeth with his land, he reserveth or provideth for himself a rent for his own livelihood. And sometimes it hath the force of saving or excepting:" 2 Thomas's Coke Litt., star page 412. And so in Sheppard's Touchstone we read that "a reservation is a clause of a deed, whereby the feoffor, donor, lessor, grantor, &c., doth reserve some new thing to himself out of that which he granted before. This doth differ from an exception which is ever of part of the thing granted, and of a thing in esse at the time; but this is of a thing newly created, or reserved out of a thing demised that was not in esse before; so that this doth always reserve that which was not before, or abridge the tenor of that which was before. If one grant land yielding for rent money, corn, a horse, spurs, a rose, or any such thing, this is a good reservation; but if the reservation be of the grass, or of...