
    George B. Dee v. Francis King.
    October Term, 1904.
    Present: Rowell, C. J., Tyler, Munson,, Watson, Haselton, and Powers, JJ.
    Opinion filed January 26, 1905.
    
      Easements — Right of Way — Quasi Easements — Deeds—Exception and Reservation Distinguished — Witness—Incompetency' — Waiver.
    In a suit in chancery involving the existence of a right of way, when the orator called and used the defendant as a witness to show that orator’s father passed through and over the land in question, his habit and custom in so doing, to what extent, under what circumstances, and for what purpose, the orator thereby waived ■his right to object to the defendant on the ground of incompetency, when subsequently c#Ied in his own behalf.
    Although the strict office, of an exception in a deed is to exempt from the operation thereof something in esse and part of the thing granted, while a reservation creates in favor of the grantor some new right out of the thing granted and which was not before in esse, yet, in construing deeds, these terms are often treated as synonymous, and a clause intended to create an exception will have that effect though the word “reservation” is used.
    Beside technical easements, there are “quasi easements,” such as a visible and reasonably necessary drain or way used by the owner of land over one portion thereof, to the convenient enjoyment of another portion, though there has never been any separate ownership of the quasi dominant and the quasi servient tenements.
    Though the owner in fee of land cannot have a technical easement therein, he may have a quasi easement over one portion thereof in the nature of a visible, travelled way reasonably necessary to the convenient enjoyment of another portion; and in conveying the land over which such way is, such owner may treat the way as a thing in being and part of the estate granted, and may except it from the operation of the deed.
    Technical words of limitation are not applicable to an exception, for the part excepted remains in the grantor as of his former title.
    If, while over one portion of his farm there is a visible, travelled way which is reasonably necessary to the convenient enjoyment of another portion thereof, the owner conveys that portion over which such way is, and in the deed, immediately following the description of the land conveyed, is the clause, “reserving the privilege of a pass from the highway past the house to the railroad, in my usual place of crossing,” that clause must be construed, not as a reservation, but as an exception, and the way then retained became an easement over the land conveyed and appurtenant to the other land, and with the latter it would pass by descent, or by conveyance.
    A right of way appurtenant to land attaches to every part of it, though the land may go into the possession of several persons.
    Appear in Chancery. Heard on master’s report and exceptions thereto at the March Term, 1904, Franklin County, Start, Chancellor. Decree dismissing bill: The orator appealed.
    This case has been once before in the Supreme Court, and the decree was reversed pro forma for the reason stated in the opinion in this case. See 73 Vt. 375, for further statement of the facts involved.
    
      H. P. Dee, and Farrington & Post for the orators.
    
      George W. Burleson, and Alfred A. Hall for the defendant.
   Watson, J.

When this case was here before (73 Vt. 375) the decree was reversed pro forma and the cause remanded for additional findings of fact by the special master, as to the time when, with reference to Mhrch 16, 1882, Jared Dee asked and obtained permission of the defendant to cross his three-acre piece of land on the east side of the Central Vermont Railroad. On the hearing before the master for this purpose, the orator introduced no further evidence. The defendant testified in his own behalf, and from his testimony the fact is found that Jared Dee first asked and obtained of the defendant permission to cross that land in January, 1882. The orator seasonably objected and excepted to the defendant’s testifying to any conversation had between1 him and Jared Dee on this point, because Jared Dee was dead.

The defendant was called and used as a witness by the orator at the first hearing, upon the question, among other things, whether Jared Dee passed through and over the three-acre piece, his habit and custom in so doing, to what extent, under what circumstances, and for what purpose. The orator made the defendant a general witness upon that question, and he thereby waived the statutory incompetency of the defendant as a witness, — Paine v. McDowell, 71 Vt. 28, 41 Atl. 1042; Ainsworth v. Stone, 73 Vt. 101, 50 Atl. 805, — and he could not afterwards complain because the defendant gave testimony in his own behalf more fully upon the same subject matter.

Jared Dee having obtained permission of the defendant to cross the three-acre piece within fifteen years next after March 16, 1867, the orator can have no prescriptive way over it. A right of way over this land is neither set forth nor claimed by the orator in his bill; yet in one aspect of the case whether he has such a way is material.

The only right of way claimed by the orator over the defendant’s land so far as appears by the bill, is over the one-half-acre piece on the west side of the Central Vermont Railroad, as reserved by Jared Dee in his deed dated October 7, 1862, conveying that land to William W. Pettingill. In that deed immediately following the description of the land conveyed is the clause “reserving the privilege of a pass from the highway past the house to the railroad in my usual place of crossing.” The defendant contends'that these words are. only a reservation of a personal privilege to Jared Dee which could not pass to his heirs or assigns because no words of inheritance or assignment were used in connection therewith; while the orator contends that the clause has the force of an exception, and that the servient estate thereby created passed, to the subsequent owners of the dominant estate without such words of limitation being used. Much depends upon the construction given in this regard, in the disposition of the case. Dord Coke says that “reserving” sometimes has the force of saving or excepting, “so as sometime it serveth to reserve a new thing, viz. a rent, and sometime to except part of the thing in esse that is granted.” Co-. Ditt. 143, a. Sheppard says that “a reservation is a clause of a deed whereby the feoffor, donor, lessor, grantor, etc., doth reserve some new1 thing to himself out of that which he granted before. And this doth, most commonly, and properly, succeed the tenendum, * * *. This part of the deed doth differ from an exception, which'is ever of part of the thing granted, and oif a thing in esse at the time, but this is of a thing newly created or reserved out of a thing demised that was not in «íe-.before, so1 that this clause doth always reserve that which was not before, or abridge the tenure of that which was before.” Shepp. Touch. 80. Again the same author says, that an exception clause most commonly and properly succeeds the setting down ©f the things granted; that the thing excepted is exempted and does not pass.by the grant, p. 77. The same principles were largely laid down by this Court in Roberts v. Robertson, 53 Vt. 690. There the deed given by the plaintiff contained a specific description of the land conveyed, and a clause “reserving lots * . * * 32, 33,” etc. Under this clause the plaintiff claimed title to the-two lots above named. The court, after stating the offices of an exception and of a reservation the same as above, said these-terms, as used in deeds, are often treated as synonymous and that words creating an exception are to- have that effect, although the word reservation is used. It was held that the clause should be construed as an exception.

In England it has been held that a right of way cannot in strictness be made the subject of either an exception or a reservation; for it is neither parcel of "the thing granted, an essential to an exception, nor is it issuing out of the thing" granted, an essential to a reservation. Doe v. Lock, 2 Ad. & E. 705; Durham, Etc. R. R. Co. v. Walker, 2 Q. B. 945. But there, as in this country, quasi easements are recognized in law, such as a visible and reasonably necessary drain-or way-used by the owner of land over one portion of it to- the convenient enjoyment of another portion, and there hás -never-been any separate ownership of the quasi dominant and the quasi servient tenements. As such easement, a drain is classed as continuous, because it may be used continuously without the intervention of man; and a right of wajr as noncontinuous because to its use the act of man is essential at each time of enjoyment. In Barnes v. Loach (1879), 4 Q. N. B. 494, it was said regarding such easements of an apparent and continuous character, that if the owner aliens the quasi dominant part to one person and the quasi servient to another, the respective alienees, in the absence of express stipulation, will take the land burdened or benefited, as the case may be, by the qualities which the previous owner had a right to attach to them. And in Brown v. Alabaster (1888), 37 Ch. D. 490, it was said that although a right of way by an artificially formed path over one part of the owner’s land for the benefit of the other portion, could not be brought within the definition-of a continuous easement, it might be governed by the same-rules as are apparent and continuous easements.

Cases involving quasi easements have been before this-Court. In Harwood v. Benton & Jones, 32 Vt. 724, the owner of a water privilege, dam, and mill, also owned land surrounding and bordering upon the mill pond and mill, which he subjected to the use and convenience of the mill privilege and mills. A part -of these adjacent lands thus subjected was conveyed without any stipulation in the deed that any servient condition attached thereto. The condition of the estate had been continuous, was obvious, and of a character showing that it was designed to continue as it had been. The Court said this was a palpable and impressed condition, made upon the property by the voluntary act of the owner. It was held that without any stipulation in the deed upon that subject, the law was that the grantee took the land purchased by him-, in that impressed condition, with a continuance of the servitude of that parcel to the convenience and beneficial use of the mill. It was there laid down as an unquestioned proposition that “upon the severance of a heritage, a grant will be implied of all those continuous and apparent easements which have in fact been used by the owner during the unity, though they have had no legal existence as easements;” and that the-doctrine was equally well settled that the law will imply a reservation of like easements in favor of the part of the inheritance retained by the grantor. In Goodall v. Godfrey, 53 Vt. Vt. 219, a “visible, defined way in use for the obvious convenience of the whole building” was in question, consequent on a division of the property among the representatives of the deceased owner, and the same principles of law were applied. And in Willey, Admx. v. Thwing, 68 Vt. 128, 34 Atl. 428, applying the same doctrines, a right of way was upheld under an implied reservation.

In this country it is commonly held that a way may be the subject of a reservation, and in many cases courts of high standing have held that it may properly be the subject of an exception in a grant. While it is true that an owner of land cannot have an easement in his own estate in fee, he may as before seen have a quasi easement over one portion in the character of a visible, travelled way reasonably necessary to the convenient enjoyment of another portion, and when such a way exists, there would seem to be no substantial legal reason why it may not be treated as a thing in being, and as a part of the estate included in the description of the grant be made an exception in a deed of the land over which the way is, when such appears to have been the intention of the parties. That this is the principle upon which a clause reserving a way is construed as an exception appears from Chappell v. N. Y., N. H., & H. R. R. Co., 62 Conn. 195, which is more particularly referred to later. There the Court said: “Then too the right to cross was, in a certain sense, a right existing in the grantors at the date of the deed. It was a part of their full dominion over the strip about to' be conveyed by the deed, and not a right to be, in effect, conferred upon them by the grantees. It was something which the ‘reservation’ in effect ‘excepted’ out of the operation of the grant.”

The distinction between a reservation and an exception of a way is best understood by an examination of cases involving clauses very similar to the one here under consideration, yet SO' unlike as to require different constructions in this regard. In Ashcroft v. Eastern R. R. Co.. 126 Mass. 196, 30 Am. Rep. 672, the clause was “reserving to myself the right of passing and re-passing, and repairing my aqueduct logs forever, through a culvert * * * to be built and kept in repair by said company; which culvert shall cross the ’ railroad at right angles,” etc. It was held that the provision that the grantee should build and keep in repair the culvert was an essential part of the grant, and clearly indicated that the intention of the parties was to confer upon the grantor a new right not before vested in him', which, therefore, could not be the subject of an exception. In Claflin v. Boston & Albany R. Co. 157 Mass. 489, 20 L. R. A. 638, the clause was “reserving to ourselves the right of a passage way to be constructed and kept in repair by ourselves.” There was no evidence of an existing way across the land. It was held to be a reservation and not an exception. In Chappell v. N. Y., N. H. & H. R. R. Co. before cited, John W. and Benjamin F. Brown, in 1851, owned a piece of land in New London fronting on the river Thames and lying between that river and Bank street. On the river front was a wharf and docks. Between the wharf and Bank street was about one and one-half acres of land used by the Browns in carrying on a coal and wharfage business. ' The wharf was valuable. In that year the Browns conveyed, for railroad purposes, a strip of this land, twenty-five feet wide, running through the land and separating the wharf from the land lying westerly of the strip conveyed, and rendering it inaccessible except by crossing the strip. This right of crossing was indispensable to the Browns and all who might thereafter own the premises then owned by them. The deed thus conveying this strip contained the clause “And we reserve to- ourselves the privilege of crossing and re-crossing said piece of land described, or any part thereof within said bounds.” The way at the time of the date of the deed was an existing- one plainly visible, necessary, and in almost constant use. The clause was construed to be an exception. In Bridger v. Pierson, 45 N. Y. 601, the defendant conveyed land to the plaintiff and immediately following the description the deed contained the clause “reserving always a right of way as now used on the west side of the above described premises * * * from the public highway to a piece of land now owned by” R. It was held to be an exception. In White v. N. Y. & N. E. R. R. Co. 156 Mass. 181, the action was tort for the obstruction'of a private way claimed by the plaintiff over the location of the defendant’s railroad, under a clause in a deed which read “reserving the passway at grade over said railroad where now made.” This way had existed as a defined roadway or cart track, and had been used in passing to> and from a highway to and from parts of the lot north of the tracks before the railroad was located, and before the deed referred to was given. The clause was held to be an exception. These are but a few of 'the many decisions in different jurisdictions -which might be referred to upon this question, but more are unnecessary.

The language of the clause under consideration cannot be said to be unequivocal. We therefore look at the surrounding circumstances existing when the deed containing it was made, the situation of the parties, and the subject matter of the instrument; and in the light thereof the clause should be construed according to the intent of the parties. At the time of making this deed Jared Dee was the owner of land on the opposite side of the railroad, consisting of a three-acre piece of tillage land, and a hill lot adjoining it on the north, chiefly valuable for its sugar works, for its pasturage, and as a wood and timber lot. The last named lot is traversed its entire length from north to' south and about a third of its width from west to east by a considerable hill, more or less ledgy and making it extremely inconvenient to cross from the grantor’s own land north of the Fairbanks land, but easily-reached by the now disputed right of way across the one-half-acre piece, and over the three-acre piece of tillage land. The greater portion of Jared Dee’s sugar orchard, timber, and wood was on top and east of this hill. There was no way to •or out of the hill lot except over the hill on Jared Dee’s -own land west of the Fairbanks land, or out through the three-acre piece and the one-half-acre piece onto' the public -highway leading westerly to Jared Dee’s house. For more •than ten years next prior to the time when Jared Dee gave the deed to Pettingill, the Dees had passed over the one-half-acre piece and through the three-acre piece almost exclusively for all purposes whenever they went to or from the hill lot, whether with team, on foot, or in any other manner, except when they got wood on the west side of the lot they went from the highway across the Fairbanks .farm west of the railroad, thence over the railroad at the “middle crossing” onto the hill lot. And on rare occasions they used still another route further north wholly over Dee’s land. It appears from the ■deed itself that in crossing the one-half-acre piece they had •a particular place of travelling then known to both the grantor and the grantee, for the words used in the deed in describing it are “from .the highway past the house to the railroad in my usual place of crossing.” Thus showing the intention of •the parties toi be that the grantor should retain the right to pass through this land over a visible, travelled way then in existence, and that no new way was thereby being created for his benefit.

Clearly under the law and in the light of the foregoing •circumstances, the clause must be construed, not as a reservation, but as an exception. When' given this construction, technical words of limitation are not applicable, for the part excepted remained in the grantor as of his former title, because not granted. Cardigan v. Armitage, 2 Barn. & C. 197; Chappell v. N. Y., N. H. & H. R. R. Co. before cited; Winthrop v. Fairbanks, 41 Me. 307. We think the parties intended that by this provision the grantor should permanently retain from the grant for the benefit of his land east of the railroad, the way over the one-half-acre piece, which he had been accustomed to use in crossing that land to and from the land first named. The way, thus retained became an easement over the half-acre piece of land and an' appurtenant to the other land; and with the latter it would pass by descent or assignment.

Subsequent to conveying the one-half-acre lot to Pettingill, Jared Dee sold and conveyed the three-acre piece, which throqgh mesne conveyances has become the property of the defendant. But this cannot affect the easement as an appurtenant to- the hill lot; for a right of way appurtenant to land attaches to every part of it, even though it may go' into the possession of several persons. Lansing v. Wiswall, 5 Denio, 213; Underwood v. Carney, 1 Cush. 285. -

The master finds that if upon the facts reported the orator has a right of way or a right to cross over defendant’s land to the hill lot, then the orator has suffered damage by reason of the acts of the defendant complained of in the bill, to the amount of sixty-five dollars. The orator can recover only such damages as he has suffered by acts of the defendant ins obstructing the way across the one-half-acre piece, considering the fact that the orator had no right of way over or right to cross the defendant’s three-acre piece. Upon this basis the damages have not been assessed. The report should therefore be recommitted for that purpose, and upon such damages being reported, a decree should be rendered that the injunction be made perpetual, and that the defendant pay to the orator the damages found with costs in this Court. The costs in the court below should be there determined.

The decree dismissing the bill with costs to the defendant is reversed and cause remanded with mandate. \¡ /  