Worcester v. Smith

• Decision Date: 11 March 1918
• Citation: 103 A. 65,117 Me. 168
• Parties: WORCESTER v. SMITH.
• Court: Maine Supreme Court

103 A. 65

117 Me. 168

WORCESTER

v. SMITH.

Supreme Judicial Court of Maine.

March 11, 1918.

Report from Supreme Judicial Court, Washington County.

Action by Katie S. Worcester against Mamie P. Smith. On report. Judgment for plaintiff.

Argued before CORNISH, C. J., and SPEAR, KING, HANSON, and PHILBROOK, JJ.

A. D. McFaul, of Machias, for plaintiff. Gray & Sawyer, of Milbridge, and G. G. Freeman, of Machias, for defendant.

SPEAR, J. This is an action of assumpsit on account annexed to recover certain sums alleged to be due for one-half rent for gravel sold from a gravel pit on the land of defendant, to which defendant pleads the general issue. Eliot A. Foster and Talbut S. French in 1878 were the owners in common and undivided of a farm in Columbia, called the John Puffer farm. They divided the farm July 31, 1879, and passed division deeds, and the determination of the rights of the parties depends upon the construction of those deeds, particularly the deed of Foster to French. The plaintiff is the daughter of Foster, and owns under his division deed; the defendant is the daughter of French, and holds under his division deed. The deed from Foster to French contains the following language: "Reserving the apple and plum trees on said land undivided E. A. Foster has half the income of the gravel in said lots where now opened and one half the house as it now stands with the privilege to use as his own so far as one half is owned."

And interlined are the following words: "The land on which it stands belongs to the said T. S. French."

The only question raised is an interpretation of the reservation clause found in the deed from Foster to French. Is it a reservation or an exception? An "exception" is a part of the thing granted and of a thing in being at the time of the grant. A "reservation" vests in the grantor some new right or interest that did not exist in him before, and operates by way of an implied grant. Hall v. Hall, 106 Me. 389, 76 Atl. 705.

In Ring v. Walker, 87 Me. 550, 33 Atl. 174, it is said:

"The distinction between an 'exception' and a 'reservation' is frequently obscure and uncertain, and has not always been observed, and the two expressions have to a great extent been indiscriminately employed. Moreover, a reservation is often construed as an exception in order that the obvious intention of the parties may be subserved. Winthrop v. Fairbanks, 41 Me. 307; Smith v. Ladd [41 Me.] 316; Bowen v. Conner, 6 Cush. [Mass.] 132. Whether a particular provision is intended to operate as an exception or reservation is to be determined by the character, rather than by the particular words used. Perkins v. Stoekwell, 131 Mass. 529, 530."

Accordingly, not only from the language of the reserving clause in this deed, but from all the circumstances surrounding the transaction, is the intention of the parties to be discovered. In 13 Cyc. 677, under e, "Intention," is found this rule of construction:

"A reasonable construction should be given to a reservation or exception according to the intention of the parties, ascertained from the entire instrument. There should be considered, when necessary and proper, the force of the language used, the ordinary meaning of words, the meaning of specific words, the context, the recitals, the subject-matter, the object, purpose, and nature of the reservation or exception and the attendant facts and surrounding circumstances before the parties at the time of making the deed. This rule is applicable to the construction of reservations or exceptions of property generally."

Determined by these rules, we are of the opinion that the parties, by the reserving clause in their deed, intended an exception rather than a reservation. Their wives were sisters; they owned the property in common; had developed the gravel pit together; had received the income from it jointly. It was an enterprise distinct from that of farming; it was in the nature of a mine of some kind of metal,...