Long v. Fewer

Mitchell, J.

The only question in this case arises upon tbe construction of tbe granting clause in a deed from one Kopp to one Ende, plaintiff’s grantor. Kopp owned tbe whole of lots nine (9) and ten (10) in block twelve (12) of Bottineau’s addition to St. Anthony. These lots bad a westerly frontage of 132 feet on Marshall street, and a southerly frontage of 157 feet on St. Peter street.

Tbe grant in tbe deed from Kopp to Ende, wbicb will be better understood in connection with tbe plat, was of “twenty-two (22) feet of tbe southwest corner of lot number nine, (9,) and twenty-two (22) feet of tbe northwest corner of lot number ten, (10,) in block number twelve, (12,) of Bottineau’s addition to St. Anthony, as surveyed by John E. Marshall, Esq.; said described pieces and parcels of land all fronting on Marshall street, and running back from said street one hundred (100) feet to an alley, reserved by John Kopp. Said alley is :twelve (12) feet wide, and said alley to be used as such, said alley |to be used for no other purpose. It commences on St. Peter street, one hundred feet from Marshall street, and running through said lots nine (9) and ten (10) of said block.”

Tbe land in controversy is tbe twelve-foot strip referred to in tbis deed as an alley. Plaintiff claims an easement in it for alley purposes, under tbe deed to Ende. On tbe other band, defendant, under a subsequent deed from Kopp, claims to be tbe owner in fee simple absolute. Her claim is based wholly upon tbe strict literal meaning of the word “reserved,” used in the deed to Ende; and numerous lexicographers are cited to tbe effect tbat “to reserve” is to “retain,” “bold back,” or “except;” and hence it is urged tbat to construe tbis deed as granting an easement would be to convert a reservation into a grant. But tbe day is past for adhering to technical or literal meanings of particular words in a deed or other contract against tbe plain intention of the parties as gathered from the entire instrument. Examining the language of this deed in the light of the situation of the property and the parties it is perfectly apparent that the expression “reserved” was not used in the sense of excepting something. Kopp was the absolute owner of the entire premises, and, had it been his intention to grant only the 44 by 100 feet, the most natural thing for him to do would have been to have said just that, and nothing more. If he had described the 44 by 100 feet as bounded by an alley, without adding anything else, the law is well settled that the deed would by implication have passed an easement in the alley. But what was here added was evidently intended as descriptive of the alley, and as an assurance to the grantee that the strip described had been set apart by the grantor for alley purposes as appurtenant to and for the benefit of the abutting sublots into which he was dividing the land. This is the only reasonable construction that can be placed on it.

Our opinion, therefore, is that the deed granted, as appurtenant to the premises conveyed, an easement for alley purposes in the land in dispute.

Judgment affirmed.

Yanderbtjrgh, J., absent, took no part.

(Opinion published 5+N. W. Rep. 1071.)