Mandle v. Gharing , 256 Pa. 121 ( 1917 )

Opinion by

Me. Justice Mesteezat,

Godfrey Gharing conveyed to Elizabeth A. Gharing and Catherine Gharing the' undivided one-fourth of a tract of land in Venango County, the deed containing, inter alia, the following language: “Excepting and reserving, however, from the above all oil or gas'produced from the said undivided one-fourth of the above described piece of land.” The plaintiff, the residuary devisee and legatee of Godfrey Gharing, claims that the language quoted creates an exception in the deed and that the title to the oil and gas was in Gharing at the time of his death and is now vested in him by the latter’s will. The defendants, the grantees and their lessees, claim that the language creates a reservation to the grantor for life of such oil and gas as was actually produced or raised to the surface of the undivided one-fourth interest conveyed by the deed. This is the question in the case, and it was correctly determined by the court below in favor of the plaintiff. We have examined with care the numerous authorities on the subject, and are not convinced that they convict the learned court of error. It would serve no good purpose to discuss them or point out wherein some are distinguishable from others by the language used. The clear and concise opinion filed by the learned trial judge leaves nothing that can profitably be said to sustain the judgment, which can be affirmed for the reasons so well stated in the opinion.

The real question in the case is whether the clause in question was intended to operate as an exception or a reservation of the oil and gas from the grant made by Gharing to his grantees. Though apt words of reservation be used, says Trunkey, J., in Easter v. Reeser, 98 Pa. 1, 5, they will be construed as an exception, if such was the design of the parties. In Lillibridge et al. v. Lackawanna Coal Co., 143 Pa. 293, 308, Mr. Justice Green says that an exception and reservation differ in legal effect, “but in their creation There is no magic in words,’ and if the meaning is clear, either expression will operate for the purpose designed.” The technical distinction between an exception and a reservation is frequently disregarded in the ordinary use' of the words, and, therefore, whether the language used, in any particular case, creates an exception or a reservation must be determined from the intention of the parties ascertained from the entire instrument. If a particular clause be construed as an exception from the grant, no words of inheritance are necessary because title to the excepted part remains in the grantor and never passes to the grantee; but, if it be construed as a reservation, words of inheritance are necessary, otherwise the right ceases at the death of the grantor, because the grantor creates a reservation to himself of some new right or thing out of the property which he has granted, and which was not in existence at the time of the granting: Whittaker v. Brown, 46 Pa. 197.

We think the intention of the parties to the deed was that Gharing should retain' the oil and gas from the grant, and that, therefore, the clause in question created an exception and not a reservation. This was not a lease authorizing the lessee to explore and operate for oil and gas on the premises of the lessor, while he retained the fee in the land. It was not the purpose to1 convey the oil and gas on a royalty to be paid to the lessor. The instrument was a deed conveying ini fee the land which included the oil and gas, but “excepting and reserving, however, from the above all oil or gas produced from the said undivided one-fourth of the above described piece of land.” This was a reservation not of a royalty, but of all the oil and gas which could be produced on the premises. The entire estate of the oil and gas was reserved from the grant, leaving in the grantor the same title to the oil and gas as he would have in the coal and other minerals had they been reserved. No other reasonable inference, we think, can be drawn from the reservation. We are unable to see the force of the defendants’ argument that the reservation clause gave the grantor during his life the oil and gas produced “at the will and expense of the grantees.” This would be, in effect, the reservation of nothing, as it certainly could not be expected that the grantees would develop the territory at their own expense for the sole benefit of the grantor. Had the grantor intended by the clause in question, as claimed by defendants, simply to reserve for his life the undivided one-fourth of the oil and gas on the premises when produced or raised to the surface at the will- and expense of the grantees, he would have said so in terms and would not have excepted all the oil and gas from the grants.

The judgment is affirmed.