Nishanian v. Sirohi , 243 Va. 337 ( 1992 )

JUSTICE WHITING, with whom JUSTICE HASSELL

joins, concurring.

I join in the judgment of the Court, but I respectfully disagree with its reasons.

The granting clause conveys “fee simple title” to “[a] 11 of Lot 4.” A part of Akhtamar Drive passes through lot 4 and would pass to the grantees in this conveyance were it not for additional language in the deed. In this case, the Court decides whether such additional language took this part of Akhtamar Drive out of the conveyance of the fee simple.

This additional language, which follows the granting clause, is:

The Purchasers covenant that they shall not grant easement to anyone through and over this property for egress and ingress purposes. The Purchasers, in accordance with the restrictive covenants, may use the private road known as Akhtamar Drive constructed on this property as well as on the property of others in accordance with the ingress and egress easements granted herein. However, Akhtamar Drive itself is not being conveyed by this sale, and the Seller maintains and reserves full right to grant or sell easement to others for the use of said road for ingress and egress purposes, and Purchasers covenant that they or their heirs, successors, administrators and/or assigns, will sign such easement documentation when demanded by the Seller.

(Emphasis added.)

Apparently, the majority holds that the emphasized clause of the above-quoted language removed Akhtamar Drive from the fee simple conveyance of the rest of lot 4. Without discussing the granting clause in the deed, the majority opinion simply describes the effect of this additional language as follows:

The deed from NGN to the Sirohis plainly refutes the Sirohis’ claim of ownership of Akhtamar Drive. The deed grants the Sirohis an easement for ingress and egress over Akhtamar Drive, and it specifically states that “Akhtamar Drive itself is not being conveyed by this sale.”

In my opinion, this holding is erroneous for a number of reasons.

The deed is ambiguous because the granting clause purportedly conveys a fee simple interest to Akhtamar Drive. Yet the language in the quoted paragraph attempts to denigrate from that conveyance either by removing the land encompassing Akhtamar Drive from the conveyance and limiting the Sirohis’ rights in Akhtamar Drive to an easement, or by reserving to the grantor and other subdivision owners certain easement rights in Akhtamar Drive. These obviously inconsistent provisions create a conflict between the granting clause and the succeeding paragraph. And, where an instrument contains conflicting provisions, it is ambiguous. Bituminous Casualty Corp. v. Sheets, 239 Va. 332, 337, 389 S.E.2d 696, 699 (1990); Goodson v. Capehart, 232 Va. 232, 236, 349 S.E.2d 130, 133 (1986); Bolling v. Hawthorne Coal Co., 197 Va. 554, 570, 90 S.E.2d 159, 170 (1955).

Accordingly, we must read the entire instrument in order to construe its ambiguous language. Short v. A.H. Still Inv. Corp., 206 Va. 959, 963, 147 S.E.2d 99, 103 (1966). Instead of ignoring the language of the granting clause, as the majority does, I would consider it in relation to the emphasized clause that states that “Akhtamar Drive itself is not being conveyed by this sale.”

In doing so, I would apply the well-settled principle that if the granting language of a deed conflicts with later language which attempts to reduce the estate granted from a fee simple interest to that of an easement, the language of the grant prevails. Goodson, 232 Va. at 236, 349 S.E.2d at 133. The dispositive issue in Good-son was essentially the same as that in this case. The granting clause in the Goodson deed vested a fee simple absolute in the grantee, and its preamble appeared to create a life estate in the grantee with remainder over. Id.

In dealing with the conflict, we said:

[Wjhere there is an irreconcilable conflict between the granting clause and other parts of the deed, and it is impossible to discover with reasonable certainty the intention of the parties, the common law rule continues to apply and the granting clause prevails. 2 F. Ribble, Minor on Real Property § 1032, p. 1336-1337 (2d ed. 1928).

Goodson also pointed out that

[a] further consideration ... is the legislative intent, expressed in Code § 55-11, that when land is granted without words of limitation, the grant shall be construed to convey the fee simple, or whole estate the grantor has power to convey, unless a contrary intention appears in the deed. Our decisions have long been to similar effect: the language in a deed will be construed to pass to the grantee the greatest estate which the language employed is capable of conveying. Waskey v. Lewis, 224 Va. 206, 211, 294 S.E.2d 879, 881 (1982); Hamlin v. Pandapas, 197 Va. 659, 664, 90 S.E.2d 829, 833 (1956); Wilson v. Langhorne, 102 Va. 631, 637, 47 S.E. 871, 874 (1904).

Id. at 237, 349 S.E.2d at 134.

Thus, should there be an irreconcilable conflict between these clauses, and the intentions of the grantor and the Sirohis could not be discovered with reasonable certainty, I would apply the common law as articulated in our previous decisions and Code § 55-11 and hold that the granting clause prevails. Therefore, I would construe the deed as a grant of fee simple title to Akhtamar Drive with a reservation of an easement therein.

Moreover, I do not think that the language relied upon by the majority expresses the “contrary intention” described in Goodson. Rather, I think that the language, “Akhtamar Drive itself is not being conveyed by this sale,” was an inartfully expressed preamble to the statement immediately following it. That statement reserves the grantor’s rights to grant additional easements over Akhtamar Drive as it extends over this property. If the grantor had reserved the fee and merely granted an easement to the Sirohis, such a statement would have been unnecessary.

Additionally, I note that the Sirohis agreed to sign “such easement documentation when demanded by the Seller.” If the grantor retained the fee simple title in Akhtamar Drive, there would be no necessity for the Sirohis to sign any “such easement documentation.” Thus, I do not think that a “contrary intention” to convey only an easement is shown in the deed.

Finally, I think that this ambiguous language should be construed against the grantor. Phipps v. Leftwich, 216 Va. 706, 710, 222 S.E.2d 536, 539 (1976).

However, it would not matter in this case if the Sirohis owned the land-and NGN and Nishanian merely had an easement over the Sirohis’ land. The erection of a permanent structure within the limits of the easement would be an act adverse to the easement granted, even though it did not interfere with the easement used. See generally Estojak v. Mazsa, 522 Pa. 353, 362-63, 562 A.2d 271, 275 (1989); Piper v. Mowris, 466 Pa. 89, 98-99, 351 A.2d 635, 640 (1976). And, if such an act continued for the statutory period, the Sirohis would acquire a right to keep the gates within the easement and, thus, diminish the easement to that extent. 1 F. Ribble, Minor on Real Property § 109.3, at 148-49 (2d ed. 1928).

Accordingly, an injunction would lie to prevent the continuing encroachment upon the easement rights reserved by the grantor for itself and the other property owners in the subdivision, and to prevent the Sirohis’ adverse use from ripening into a property right.

Therefore, I would reverse and remand the case, but for the reasons stated above.