Patrick v. Jefferson Standard Life Insurance

WalkeR, J.,

after stating tbe ease: Tbe plaintiff claims tbat by reason of tbe words of reservation in tbe deed of ber busband, T. J.' Patrick, to Porter & Gorrell, and tbe will of ber busband, wbieb devises all bis real estate to ber, sbe is now tbe owner of tbe 4-foot strip of land before described, while defendants claim tbat no such reservation was intended by Thomas J. Patrick, bis only object being to afford him and Porter & Gorrell an outlet to West Market Street, and tbat when there was no longer, any necessity for this use of tbe alleyway it passed by clear intendment of Patrick to tbe county at tbe time it acquired tbe surrounding land, and, besides, tbat if tbe plaintiff or ber busband bad any legal right to tbe strip it has been lost by adverse possession or adverse user for more than twenty years. It also contends tbat as tbe lot conveyed to Porter & Gorrell by Patrick was next to tbe alley, one-half of which tbe latter owned at tbe time of tbe conveyance, tbe eastern boundary of the grantees extended to tbe middle of tbe alley, under tbe description in tbe deed, which would take in tbe 4-foot strip of land now in dispute, subject to tbe easement or right of way over it of Porter & Gorrell, and Patrick himself, who were tbe holders of tbe dominant tenements. And it is further contended by defendants tbat, considering tbe deeds in evidence and tbe undisputed facts, Patrick never intended to reserve tbe legal title to tbe 4-foot strip, but merely to create an appurtenant easement in favor of the adjoining tenements, and tbat if be intended to retain the title it was only to remain in him so long as was necessary to protect tbe easement, and when this necessity ceased tbe strip should become a part of tbe lots sold and which bordered upon it, each receiving its pro rata share, or tbe part of tbe alley in front of it. But in this connection they do not admit tbat tbe 4-foot strip was ever intended to be severed from tbe Porter & Gorrell lot, but tbat tbe effect of tbe deeds was to reserve to T. J. Patrick such a control over tbe 4-foot strip as would enable him to create and preserve an easement, or right of way over it, for tbe benefit and more convenient enjoyment of the Porter & Gorrell lot and bis own lot in tbe rear, or north of it, which be afterwards sold to W. A. Caldwell, who still later conveyed it to tbe county.

• Tbe judge, by consent, was given tbe right to answer tbe third issue after tbe verdict upon tbe other issues was returned by tbe jury, and when tbe verdict was announced be caused tbe following entry to be made: “Apart from tbe answer to tbe second issue, I am of opinion that when tbe county of Guilford acquired title to tbe lots there was a merger of tbe easements, and if an easement was revived when the county conveyed to tbe Jefferson Standard Life Insurance Company, it was revived only for tbe benefit of tbe owners off tbe fee, neither of whom seek to take advantage of it. There are other reasons that need not to be stated. I answer the third issue No.’ ”

We are of tbe opinion, after examining tbe record with care, that there was evidence fit to be submitted to tbe jury upon tbe question of adverse possession within tbe established rule as to what will constitute such a possession. Tbe evidence tends to show that tbe space between tbe courthouse and Barker & Sockwell’s store has been a part of tbe courthouse square since between 1872 and 1875, when tbe county bought tbe property for tbe purpose of having a square upon which to build tbe new courthouse, and that'this space was ploughed up and sown in grass, and that trees were planted there, and a wire fence built across tbe space at different times to beep intruders out. Rose bushes were set out and tbe property was considered as belonging to tbe county, and so used.

Tbe witnesses W. II. Green, W. G. Balsley, and W. H. Ragan testified that since tbe year 1874 or 1875 tbe open space west of tbe course, which includes tbe disputed strip of land, has been a part of tbe courthouse square, and so used by tbe county and tbe public, and W. H. Ragan further testified: “From tbe time I have known this property, either officially or unofficially, there has never been an alleyway or walkway leading from Market Street, running parallel with the courthouse going north and south next to tbe building, until tbe cement walkway was put down. Think the cement walkway was put down in 1900. It runs from tbe west side of tbe courthouse over to tbe walk running tbe other way along by Barker & Sockwell’s place. Then there is another cement walk. Neither one of these walks run immediately along tbe courthouse running north and south. One runs from tbe courthouse west and tbe other straight across, going next to Barker & Sockwell’s building. They meet in front of tbe office building. At no time when I was a member of tbe board, or its chairman, did tbe plaintiff in this case or testator, Mr. T. J. Patrick, ever make any claim to any portion of tbe property, or ask to pass over it.”

Tbe witness, W. H. Ragan, was for many years a member of tbe board of commissioners of tbe county and its chairman for seven years.

Tbe plaintiff’s witness, David Scott, testified: “Tbe fence extended entirely up and covered tbe space to tbe courthouse building. It went within a few feet of Barker & Sockwell’s store. It included Patrick’s drug store. I don’t know just bow close it went to Patrick & Sockwell’s store. It included all tbe open space., After tbe fence went down tbis property was plowed up and sown in grass several times. After tbe first fence rotted down there were small posts put up and wire stretched across that in tbe same territory where tbe original fence was. This prevented any passage from West Market Street into the open property west of tbe courthouse except by persons who would get over tbe fence and go in.”

There was much other testimony showing that tbe county was claiming to be tbe owner of tbis property as a part of tbe courthouse square, and that it was occupied and treated as such without any claim of title or ownership by tbe plaintiff until about the- time that tbis suit was commenced.

"Where there is such use and occupation of land as from its nature and character it is capable of, and it is dealt with in such a way as to indicate that the occupier is asserting tbe right of ownership over it in opposition to tbe world or to tbe true owner, and tbis is done openly and notoriously under a claim of right and under known and visible boundaries or color of title defining its boundaries, it is such adverse possession as, if continued for tbe statutory period — seven years under color and twenty years without color — will ripen tbe title to land if tbe State has parted with or lost its right and title to tbe same. It does, in tbe law, mean that tbe person must have bis feet on every square foot of ground before it can be said that be is in possession. It may be established by inclosure, by tbe erection of buildings or other improvements, by cultivation, or, in fact, by any use of it that clearly indicates the appropriation and actual occupancy of a person claiming to bold it. Tbe following cases support tbis view and state with fullness tbe nature of adverse possession as understood in tbis jurisdiction: Christman v. Hilliard, 167 N. C., 4, at p. 7; Bryan v. Spivey, 109 N. C., 57; Boomer v. Gibbs, 114 N. C., 76; Vanderbilt v. Johnson, 141 N. C., 370; Simmons v. Box Co., 153 N. C., 257; Ray v. Anders, 164 N. C., 311; Dobbins v. Dobbins, 141 N. C., 210; Berry v. McPherson, 153 N. C., 4; Locklear v. Savage, 159 N. C., 236; Coxe v. Carpenter, 157 N. C., 557.

It was held in Berry v. McPherson, supra, that “While tbe evidence of title by adverse possession must tend to prove tbe continuity of possession for tbe statutory period in plain terms or by 'necessary implication,’ it is sufficient to go to tbe jury if it was as decided and notorious as tbe nature of tbe land would permit.”

The possession here was, as decided, notorious and continuous, as tbe nature of tbe land would permit, and offered unequivocal indication that tbe defendant and those under whom it claims were exercising tbe dominion of owners, and were not pillaging as trespassers by occasionally going upon the land for special purposes, and not in the assertion of a general ownership, but were using the same and making continual claim thereto. The defendant and those under whom it claims were exposed to suits, either at law or in equity, though the plaintiff mistakenly supposed they were not. Boomer v. Gibbs, 114 N. C., 76; Osborne v. Johnson, 65 N. C., 22; Christman v. Hilliard, supra. See, also, on the question of adverse possession, Reynolds v. Palmer, 167 N. C., 454; Williams v. Buchanan, 23 N. C., 537, and other cases cited in 167 N. C., at 455.

The inference from this record is that the plaintiff has never claimed ownership by paying the taxes on the property. It is a circumstance, if it existed, to be considered by the jury, though not a decisive one. Christman v. Hilliard, supra, and other cases cited on the point. For the law in other jurisdictions, see 1 Cyc., 984, 985, 987, 998, 999, and notes to the text.

But there is another ground upon which the plaintiff must fail. It is manifest from the entire case and a proper construction of the respective deeds that Mr. Patrick never intended to sever the strip from the lots he conveyed and to retain title to it as separate and distinct from the other land. His clear intention was to retain control over the strip for the purpose only of protecting the right of way over it for the use and benefit of the Porter & Gorrell lot and the one he owned adjoining and to the north of it. We have the right, when interpreting a transaction like this one, in order to ascertain its nature and purpose, to take into consideration the object and motive of the parties, or what they intended to accomplish, as shown by the several deeds for the property in dispute, and to survey the situation as a whole.

Mr. Patrick owned a lot back of the one he sold to Porter & Gorrell, and he desired an exit from it to West Market Street. It was necessary for the better and more convenient enjoyment of his tenement, and the same is true as to the lot he sold to Porter & Gorrell. These lots bordered on the alley and adjoined that part of it which he reserved as the right of way. As he owned that half of the alley, the fee in it, if nothing was said to the contrary, would have passed with the lots conveyed by him to Porter & Gorrell and to W. A. Caldwell. The following cases state and illustrate the principle:

“A conveyance describing a lot in a deed as bounded by an alley which is laid off on a certain plat will pass title to the center of the alley if the grantor’s title extended so far, and it is immaterial whether or not the alley is ever brought into public use.” Jacob v. Woodfolk, 90 Ky., 426.

“A conveyance of land bounded along a certain lane which, was laid out entirely on the grantor’s land, but on a margin thereof, carries the fee in theiwhole road-bed, and especially where all the land bordering on the lane was conveyed.” Haberman v. Baker, 128 N. Y., 253.

“Where an alleyway (owned by the grantor) was laid out on the extreme edge of a lot, a deed conveying it and referring to it in the general description by reciting its number was held to carry the bed of the alley, notwithstanding the alley was referred to in the particular description as the boundary of the lot. If the owner of the land conveyed in two parcels, describing them as the northern and southern halves by metes and bounds, and as bounded southerly and northerly, respectively, by an alley, and such metes and bounds would establish-an alley between them, while the strict division into halves would make the center line of such alley the division line between the parcels, the deeds should be so construed as to vest in each grantee title to the center of the alley.” Albert v. Thomas, 73 Md., 181; F. P. Church v. Kelar, 39 Mo. App., 441.

Of course, if the grantor does not own the bed of the alley, or the part of it on his side, the deed would not operate so as to pass any part of the fee in the alley, but would-stop at its boundary. The clear intention here was to convey to the center of the alley with Patrick’s one-half of the alley burdened with the right of way given by the deed. Mr. Patrick could derive no benefit from his half of the alley except by using it for the purpose of an exit from his lots and Porter & G-orrell’s lot. When Patrick comes to make a deed to the third lot on which the northern end of this alleyway abutted he made no reference to reserving any alleyway, or rights or title therein, as this was the only property owned by him in the block. ILenee after conveying it up to the line of the old county square, he, by the habendum clause in the deed, vests in the grantee whatever rights might attach to this lot by his ownership on account of the reservation of easements and rights of way in the Porter & Gorrell lots. The provision in the deed “to have and to hold, together with all appurtenances and privileges thereunto in any wise belonging and appertaining, unto him in fee simple,” etc., disposed of the last and remaining interests which he had in any land or easements in said square.

A case strikingly similar to the one at bar, in which a lot was conveyed bounded by an alleyway, and a reservation of the alleyway was provided for, as in this case, is Hennesy v. Murdock, 137 N. Y., 317 (33 N. E. 330). The Court there says: “Where the owner of a square divides it into two lots with an alley through the center, and conveys a lot bounded on the alley, ‘together with the right of way of the alley aforesaid, which is forever to be kept open for the benefit of the lot, and conveys tbe lot on the opposite side of the alley and bounded thereon to another grantee, the grantees take the fee to the center of the alley.”

The express uses for which Patrick retained certain rights in the alleyway are nothing more than easements appurtenant to the lots; hence when the lots were sold the appurtenant easements went with them and no estate was left in Patrick such as would enable him, after a long residence in Virginia, or his devises yearly thirty years after his death, to assert against the county, which had been in open and notorious possession of both the lots and the strip of land for nearly fifty years.

In Jones on Easements, sec. 28, the doctrine is stated as follows: “An appurtenant easement cannot be conveyed by the party entitled to it separate from the land to which it is appurtenant. It can be conveyed only by a conveyance of such land. It adheres in the land and cannot exist separate from it. It cannot be converted into an easement in gross.”

We find cases similar to this one in the books, where a like construction was placed upon the deeds. “After a highway had been laid out and established pursuant to law, the owner of the land conveyed the same with the usual covenant of warranty and seisin, saving and excepting the said highway. It is held that the right of soil in the highway had vested in the grantee, subject to the right of j>assage to the public.” Tuck v. Smith, 1 Conn., 103.

“There is no rule of the common law better settled and more universally adopted in this country than that which prescribes that a grant of land bounded in general by a creek or river not navigable carries the land to the grantee usque ad filum aqua — to the middle, or thread, of the stream.” Rowe v. Lumber Co., 128 N. C., 301, and 133 N. C., 433.

In Smith v. Goldsboro, 121 N. C., 350, in discussing a similar question, the Court says: “In other words, he opens streets to induce parties to purchase lots, which they could not have done had not the streets been opened. While he may have retained the fee of the streets, inasmuch as he did not convey it to any one, he could not have expected any personal benefit therefrom as he now is not even an abutting owner, as appears from 'the record. He -was fortunate in being able to dispose of all his lots at prices presumably satisfactory to himself. This, which would otherwise have been impossible, he was able to do by opening the streets in controversy, and he should not now be heard to" assert any ownership in said streets to the injury of the parties whom he thus induced to purchase.”

The last case, decided by this Court, is very much in point. Mr. Patrick opened the alley, with the county, to render his lots salable by creating an easement appurtenant over the alley, for the purpose of accessibility to the street, without the intention, though', of ever claiming any interest otherwise in the alley, and dedicating it solely to that purpose. When the dominant tenements were purchased by the county and made a part of the square surrounding the courthouse, th'e right of way was no longer needed, and was, thereby extinguished, and the servient tenement, if we may so call it, or the strip of land which was used as a way to the street, was merged into and became a part of the square. When he reserved the “seizure” of the strip he simply meant that the fee should pass to his grantees, subject to the right of way, and in order to preserve this easement intact to him and his assigns he should have control of the strip so long as necessary for that purpose. This is the interpretation given to similar conveyances in the cases we have before cited.

We would not impute to Mr. Patrick the motive in making the reservation, that he did so for the purpose of annoying and harrassing his neighbors by excepting from his conveyance the fee of a narrow strip of land which, without the easement, could be of no conceivable benefit to bim, and holding it so that he could exact a high and unreasonable price for it from them. It would have no value to him after he had sold his lots, save for such an unworthy purpose, which should not be attributed except upon such convincing proof as to make the inference inevitable. He had a more benevolent end in view. ■ It is strange, too, as an additional reason for our construction, that so long a time — nearly one-half century — should elapse before any claim is made to this property. The deeds from W. C. Porter and the one from W. A. Caldwell to the county of Guilford were executed in February, 1873, the Gorrell deed to the county in 1873, the deed of Patrick to Gorrell in 1871.

As illustrating, and we think strongly emphasizing, the purpose and intention of Patrick in making the reservations in the deeds above referred to, and also as showing the interest which he understood was reserved to him thereby, we may well refer to his own conduct. After conveying the third lot at the end of the alleyway in the block to Porter in 1871, there is no evidence that Patrick ever exercised any ownership or control over the strip in question, or sought to do so, and although he lived for twenty years thereafter he never sought to assert any claim to the strip in question or objected to the county’s plowing it, planting the square in treés, and fencing it off, as a part of the square, from the street, and even after his death nearly thirty years elapsed before any one representing his estate conceived the idea of ownership in said strip of land. This recent claim was evidently founded upon a mistaken apprehension as to the nature and extent of Patrick’s right in this 4-foot strip of land.

A very similar effort was made in the case of Casserly v. Alameda Co., 153 Cal., 170, where an action was brought to quiet title of a fractional interest in certain public squares which had been in the open and notorious possession of the city for more than twenty years. The Court took occasion to say that indisputably the claim of plaintiff was barred by the statute of limitations. The evidence in this case clearly shows that the defendant insurance company and the county, from which is acquired title, have been in the open and notorious adverse possession and control of this strip of land for nearly fifty years. There were ample facts to sustain the jury’s verdict upon the second issue, which of itself disposes of plaintiff’s right to recover in this action. The court’s determination of the law upon the third issue, without regard to the jury’s finding upon the second issue, was correct, and if either conclusion is right, the judgment below should stand.

The presiding judge alludes to a merger of the easements. A merger, technical or ideal, takes place when the owner of one of the estates, dominant or servient, acquires the other, because an owner of land cannot have an easement in his own estate in fee, for the plain and obvious reason that in having the jus disponendi — the full and unlimited right and power to make any and every possible use of the land — all subordinate and inferior derivative rights are necessarily merged and lost in the higher right. 14 Cyc., p. 1188; Barringer v. Trust Co., 132 N. C., 409.

We are permitted to scan the entire field of inquiry and to consider the transaction as a whole and with reference to all its parts in order to ascertain the true meaning of the grantor. Gudger v. White, 141 N. C., 507; Triplett v. Williams, 149 N. C., 394; Beacon v. Amos, 161 N. C., 357; Brown v. Brown, 168 N. C., 4; Mining Co. v. Lumber Co., 170 N. C., 273.

Courts are always desirous of giving effect to instruments according to the intention of the parties so far as the law will allow. It is so just and reasonable that it should be so, that it has long grown into a maxim that favorable constructions are put on deeds. Kea v. Robinson, 40 N. C., 373; Rowland v. Rowland, 93 N. C., 214.

Chief Justice Taylor expressed this idea when he said that the very purpose of the law would seem to be to ascertain with more particularity what it was apprehended might not have been otherwise sufficiently described. Campbell v. McArthur, 9 N. C., 38. It may be taken as settled that courts will, for the purpose of ascertaining the intention of the parties, endeavor to place themselves in the position of the parties at the time of the conveyance. Cox v. McGowan, 116 N. C., 131, 133, and Justice Connor in Modlin v. R. R. Co., 145 N. C., 229. It all is bottomed upon the ancient maxim that contemporaneous exposition is the best and strongest in law. (Contemporánea expositio est optima et fortissima in lege.) Our best and surest guide, therefore, in construing instruments is found in referring to tbe time when, and tbe circumstances under wbicb, they were made. Broom’s Legal Maxims (6 Am. Ed.), star page 654. It is not difficult, by reading tbe deeds and considering tbe attendant circumstances, to reach a satisfactory conclusion as to wbat tbe parties meant, and we are required by tbe settled canon of construction so to interpret tbem as to ascertain and effectuate tbe intention of tbe parties. Tbeir meaning, it is true, must be expressed in tbe instruments, but it is proper t-o seek for a rational purpose in tbe language and provisions of tbe deed and to construe tbem consistently witb reason and common sense. If there is any doubt entertained as to the real intention, we should reject that interpretation wbicb plainly leads to injustice and adopt that one wbicb conforms more to tbe presumed meaning, because it does not produce unusual and unjust results. All this is subject, however, to tbe inflexible rule that tbe intention must be gathered from tbe entire transaction “after looking,” as tbe phrase is, “at tbe four corners of it.” If we adopt this course, wbicb is strongly commended to us, we can easily see that Mr. Patrick bad no idea of retaining any title to tbe land except for the'purpose of tbe easement, and then so long only as it lasted.

There was no error in tbe trial, and tbe judgment must stand.

No error.