Wood v. Ashby

• Decision Date: 07 October 1952
• Docket Number: No. 7667,7667
• Citation: 253 P.2d 351,122 Utah 580
• Parties: WOOD et al. v. ASHBY et al.
• Court: Utah Supreme Court

Page 351

253 P.2d 351

122 Utah 580

WOOD et al. v. ASHBY et al.

No. 7667.

Supreme Court of Utah.

Oct. 7, 1952.

Wilson & Wilson, Ogden, for appellants.

Ralph J. Lowe, Ogden, for respondents.

McDONOUGH, Justice.

This is an appeal from a lower court judgment quieting title to a certain strip of land in the plaintiff and restraining defendants from claiming any right of way over such land except one for road purposes across the land in controversy at a point where a gate exists in a fence along the southern portion of the strip. In order to illustrate the situation we insert a diagram:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1907 one Traugott owned the entire piece of land diagramed above. James G. Wood, desiring to obtain the ground water from the above section of land for culinary purposes, bought strip A from Traugott. Such strip contained an underground collection pipe along its northern border which led to a collection well on its west end. The southern two-thirds of strip A lay under a public highway. The conveyance from Traugott to Wood was by warranty deed and conveyed strip A 'reserving, however, to said grantors a right of way for road purposes across the above described premises.'

In 1917 Traugott, by warranty deed, conveyed an area consisting principally of A, B, and C to John H. Clark 'subject to rights conveyed by that certain deed executed by John E. Traugott and his wife Mary Ann Traugott to James G. Wood * * *'. John H. Clark then conveyed the entire area to Sanford Harrop in 1932 by warranty deed but made no mention in the transaction or deed as to any rights which existed on the part of Wood, or his successors in interest. Harrop, by warranty deed, conveyed the entire premises to defendant Ashby in 1947 and again nothing was stated in the deed as to any existing rights of James G. Wood. Ashby later conveyed C and that part of A immediately south of C to defendant Christensen. No mention of the rights of Wood was made. The present action arose when the defendants, desiring to subdivide the land, construct dwellings thereon, and to obtain greater access to the highway, claimed an unrestricted general right of way over and across any and all portions of strip A. Plaintiff, who is the successor in interest to James G. Wood, attempted to halt defendants by erecting a fence along the northern boundary of A. Defendants commenced to remove such fence and this action resulted.

The record reveals that a prior fence exists along the northern border of the highway. This fence contains a gate located approximately one-fourth of the length of A from the west boundary of A. Such gate was evidently used as a means of ingress and egress by Traugott's successors in interest. There is no recognizable division line between A and the other sections of land. Plaintiffs used A for water gathering purposes only--it not being economically feasible for plaintiffs to farm the lone sliver of land. Since part of A lay north of the fence and adjacent to defendants' land, it was farmed by defendants and their predecessors in interest. The record reveals that permission was obtained from plaintiffs to farm the land in this manner, as long as such activity caused no interference with the underground collection pipe. (Because of these liberties defendants claim an unrestricted right to cross over A at any point.)

Basically, defendants contend that although the deed from Traugott to Wood conveyed the fee of strip A, yet the sole purpose of the conveyance was to give and receive water rights, and to provide for noninterference therewith; that the intention of the parties was for the grantor to retain the same right of way over the strip as he had prior to the conveyance; and that such right of way was a general and unrestricted right of way. Contrary to this interpretation, the plaintiffs contend that the reservation of a'right of way for road purposes' restricted the rights of the grantor to a passageway 'across' strip A, and that the location of this passage was established by usage through the gate in the fence bordering the highway. The lower court decided in favor of the plaintiff and the defendant contends on appeal that the trial court erred in construing the deed as limiting the right of access to the one rod strip of land leading to the fence gate; that the court erred in finding that defendant Christensen has no direct right of way across strip A; and that a restraining order issed by the court was so uncertain as to make compliance therewith impossible.

Since it is manifest that a grantee may receive only what a grantor has to give, defendants' rights are based upon a construction of the original Traugott deed to plaintiffs' predecessor in interest. The issue is whether such deed reserved to the grantor a general and unrestricted right of way over strip A.

It is generally conceded that a deed is to be construed most strongly against the grantor, and most favorably to the grantee. Henningsen v. Stromberg, 124 Mont. 185, 221 P.2d 438; Little v. Mountain View Dairies, Cal., 208 P.2d 361; Palmateer v. Reid, 121 Or. 179, 254 P. 359. It is also established in this state that a deed should be construed so as to effectuate the intentions and desires of the parties, as manifested by the language made use of in the deed. Coltharp v. Coltharp, 48 Utah 389, 160 P. 121. Further, when the deed creates an easement the circumstances attending the transaction, the situation of the parties, and the object to be attained are also to be considered. Stevens v. Bird-Jex Co., 81 Utah 355, 18 P.2d 292. The deed in question granted a fee simple to Wood reserving a 'right of way for road purposes across' the land conveyed. It is true that the objective of the grantee was to secure the land for water gathering purposes, but if the intent of the grantor was to use the land exactly as before, it seems more likely that an easement rather than a fee simple would have been granted to Wood.

The object of the easement reserved by Traugott was to obtain a way in and out of the remaining property. The words 'for road purposes across' indicate a restricted rather than a general reservation and this is particularly true where, as in this case, the grantor owned the entire tract involved...