
    W. H. RUFFIN, Administrator, v. SEABOARD AIR LINE RAILWAY.
    (Filed 24 November, 1909.)
    1. Railroads — Deeds and Conveyances — Easement, Reservation of— Fee.
    A provision in a deed of lands to a railroad company for depot purposes, that tbe grantor should have the right to erect a warehouse partly on the lands described and conveyed, provided a width of 115 feet be left to the railroad company, reserves to the grantor a descendable, assignable and transferable easement therein for the stipulated purpose and to the extent specified in the deed.
    2. Same — Words of Inheritance.
    An easement in fee in lands reserved by the owner in his deed thereto, does not require the use of the words of inheritance, for the thing excepted is not granted and the grantor retains it by virtue of his original title.
    3. Same — Statute.
    Under the Code of 1883, see. 1280, a reservation by the grantor in his deed of an easement in the lands conveyed will be construed to be an easement in the fee unless the contrary intent appears from the conveyance.
    4. Same — Determinable Fee — Rights Appurtenant — Permissive User.
    A stipulation in a deed of land to a railroad company for depot purposes was that the grantor shall have the right to erect warehouses along certain sides of the lands, provided they do not encroach upon any portion of the depot ground of the width of 115 feet, and in accordance with such right the grantor erected a warehouse partly on his own land and extending upon the lands conveyed a distance of twenty-three feet, which was occupied continuously as such since its erection by the grantor, his heirs and assigns. Held, (1) whether by way of reservation or exception, the grantor retained for warehouse purposes, a determinable fee in the land conveyed to the extent of the twenty-three feet; -(2) that this right was appurtenant to the land covered by the other part of the warehouse; (3) that the question of whether a permissive user of a railroad right-of-way would ripen title to the easement reserved did not arise.
    Appeal from Goolee, J.,- January Term, 1909, of EkaNKLIN.
    On 17 July, 1885, J. F. Jones executed to tbe Louisburg Railroad Company a deed, conveying a depot site at Louisburg, N. C., tbe metes and bounds of wbicb are set forth in said deed. This deed contained tbe following stipulation: “It is further stipulated that tbe said parties of tbe first part shall have tbe right to erect a warehouse along tbe southwest side of said lands and upon tbe southwest margin of said road, provided they do
    
      
      
    
    
      not encroaph upon any portion of the depot ground, of the width of 115 feet on the grade, so that the railroad company shall have a width of depot grounds of at least 115 feet on the grade.”
    In 1885 or 1886 J. F. Jones erected upon the margin pf said land a warehouse, extending a distance of about twenty-three feet over upon the land of the said railroad, but leaving an unobstructed width of 115 feet of depot ground. This warehouse has been used and occupied by J. F. Jones and his heirs and assigns continuously since its erection, and is now so used as a warehouse.
    . J. E. Jones is dead, and William H. Ruffin has qualified as his administrator. In the course of the administration of the estate it became necessary for the administrator to file a petition to sell the land upon which the warehouse was erected, to make assets, and under said petition an order of sale was made and William H. Ruffin appointed commissioner.
    The lot was sold to J. M. Allen for the sum of $2,205, but upon investigation it developed • that the warehouse situated on the said lot extended twenty-three feet beyond the boundary of the land conveyed to the Louisburg Railroad Company, which lot now belongs to the Seaboard Railroad Company. J. M. Allen thereupon refused to complete the purchase unless some concession in price was made by the commissioner. The commissioner refused to make any concession and brought this action to force the said J. M. Allen to take the property and pay the price agreed upon.
    The Seaboard Air Line was made a party defendant in this action and filed answer therein, setting up its right to the entire tract conveyed to the Louisburg Railroad Company by J. F. Jones, free from any'right of the heirs or assigns of said J. F. Jones to occupy any part thereof for any purpose whatever.
    The facts were agreed upon and the matter submitted to Qoohe, J., at January Term, 1909, of Franklin. Upon the facts found, in accordance with the facts agreed, Judge Coolee rendered the following decree:
    “It is, therefore, by the court ordered, adjudged and decreed that the stipulation in said deed contained, reserved-to the said J. F. Jones a descendable, assignable and transferable easement in, 1o and upon said strip of land described in the pleadings, on the southwest side or margin of said depot site, of the width of about twenty-three feet, for the use and occupation thereof for warehouse purposes, and that such easement descended to the heirs and assigns of the said J. F. Jones, and that the same is therefore salable and assignable by the said administrator and commissioner. But it is further ordered, adjudged and decreed that such easement is limited to the use and occupation of said strip of land for warehouse purposes only.
    “It is further ordered, adjudged and decreed that said administrator and commissioner tender to the purchaser a deed for the land so sold, including said easement, as herein declared, and that upon the payment of the purchase price bid, to-wit, $2,205, with interest on the same from 25 May, 1908, till paid, at the rate of six per cent, per annum, the said commissioner deliver such deed to him.
    “In the event of the refusal of said purchaser to take conveyance, as aforesaid, it is further ordered, adjudged and decreed that said William H. Ruffin, commissioner, make resale of said premises, after thirty days’ advertisement in some newspaper, as required by law, and that at such sale he' shall sell separately the easement in, to and upon said strip of land, about twenty-three feet in width, along the southwest margin of the depot site of the defendant railway, as herein declared, and shall sell separately the remainder of said land and premises, to-wit., that part of the land owned by said J. F. Jones in fee.
    “Said commissioner will report his proceedings herein to this court.
    “It is further ordered that the costs of this action shall be paid by the commissioner, out of the proceeds of sale.”
    The defendant Seaboard Air Line Railway excepted to the foregoing decree and appealed.
    IF. H. Ruffin, Bichebt & White and Spruill & Ilolclen for plaintiff.
    
      Murray Allen for defendant.
   Glare:, C. J.,

after stating the ease: This case presents a single question, i. e., the construction of the stipulation contained in the deed from J. F. Jones to the Louisburg Railroad Company, by which it was agreed that the said Jones should have the right to erect a warehouse on the land conveyed, provided an open space of 115 feet was left for use by the railroad company as depot grounds. It is admitted that the defendant has 115 feet of open space, and that the warehouse erected by J. F. Jones extends twenty-three feet over the southwest boundary of the land conveyed by the deed of 1885.

The court below took the view that this stipulation reserved to J. F. Jones a descendable, assignable and transferable easement in the twenty-three-foot strip of land, but that this easement is restricted to warehouse purposes.

The contention of the Seaboard Air Line Railway is that this stipulation in the deed is nothing more than an agreement between the Louisburg Railroad Company and J. E. Jones, or license, that he could erect a warehouse, and that the right to occupy the land for that purpose expired upon the death of the said Jones.

We do not think the clause in the deed from Jones can be construed to be a license to him — a license is granted by the owner of the -land; besides, as a rule, a license is voidable at the will of the owner (Washburn Easements, 3d Ed., sec. 15; Jones Easements, sec. 69), which certainly was not the intention here.

The defendant’s contention, that if this was an easement it expired at the death of the grantor, Jones, cannot be maintained. It was created by way of exception, and, “If created by way of exception, words of inheritance are not necessary to create an easement in fee, if the grantor owned the fee of the premises at the time of the conveyance, for the simple reason that the thing excepted is not granted, and the grantor retains a part of the estate by virtue of his original title.” 14 Cyc., 1165; Jones Easements, sec. 89.

Hamlin v. Railroad, 160 Mass., 459, held that a deed of a railroad right of way, releasing all claims for damages, but reserving to the grantor a private crossing over the track, along the course of a previously existing cartway, excepts the cartway from the grant and does not create a new right in the grantor by way of reservation; and hence the word “heirs” is not necessary to make the easement of crossing perpetual. This case is more especially in point, because that court, in common with North Carolina, holds to the common law distinction or doctrine. Washburn Easements, 3d Ed., p. 5.

If it be contended that the clause was in effect a reservation, and that under the strict rule of law an instrument creating an easement in fee by way of reservation must contain words of inheritance, such contention is met and avoided by the provisions of our statute in existence at the time of the conveyance (section 1280, Code of 1883), which provided that conveyances are held and construed to be in fee unless a contrary intention appears from the conveyance'.

Whether the right is by way of exception or reservation, the intention of the grantor, to be ascertained from the language used and the attendant facts and circumstances, was not to except or reserve a mere life estate, but a perpetual right of user, provided always that the grantee held absolutely 115 feet. As was said by this Court in Merriman v. Russell, 55 N. C., 470, “Few would be at tbe expense of erecting a mill if tbe supply depended upon tbe uncertainty of.life.” And tbe grantor would not bave excepted or reserved tbe right in tbis .case to erect an expensive warehouse — a building ordinarily erected for time, so far as human foresight and power can extend — if tbe tenure depended on tbe uncertain term of bis own life. Taking into consideration that tbe erection of such a building was to tbe direct benefit of tbe railroad by making it a contributing factor in building up tbe business of the then new railroad, and taking into consideration, further, that such buildings always bave been and always will be contributing agencies to tbe business of railroads, it is clear that tbe intention of both parties was to create a perpetual user. It was deemed by them to be one which would always be of benefit to both grantor and grantee. Hall v. Turner, 110 N. C., 292, indicates that the grantor’s right in the twenty-three feet was a determinable fee.

Jones on Easements, secs. 92 and 106, says: “When it appears by tbe true construction of tbe terms of a grant that it was tbe well-understood purpose of tbe parties to create or reserve a right, in tbe nature of a servitude or easement, in tbe property granted, for tbe benefit of other land owned by the grantor, no matter in what form such purpose may be expressed, whether it be in tbe form of a condition, or covenant, or reservation, or exception, such right, if not against public policy, will be held to be appurtenant to tbe land and binding on that conveyed to tbe grantee, and tbe right and burden thus created and imposed will pass with tbe lands to all subsequent grantees.” Jones on Easements, secs. 92 and 106.

“That a reservation naturally operates to enhance tbe value of tbe grantor’s other lands is a strong indication of bis intention that it should be appurtenant to bis estate and not merely personal to himself.” Jones on Easements, sec. 94, p. 76.

“A reservation of an easement which is intended to be appurtenant to tbe land retained by tbe grantor is not within tbe rule that tbe word ‘heirs’ must be used to create an estate which will extend beyond tbe party making tbe reservation,” etc. J ones on Easements, sec. 93.

Patton v. Educational Co., 101 N. C., 408, is very much like tbe case at bar. In that case there was a grant of lands in fee, reserving an easement, as follows: “With tbe following reservation — that is to say, the said M. M. Patton reserves thirty-three feet for a street running from tbe cross street down L. C. Clayton’s fence to J. P. J ordan’s fence; then up J ordan’s fence to the street that leads down to. Patton’s bouse.” There was in tbe deed, as in the case at bar, a conveyance of lands by metes and bounds, and the reservation was made within such bounds and was made without words of inheritance. The heirs of Patton brought suit for the enjoyment of the easement, which had been obstructed, and the defendant there, as here, contended that the user was confined to the life of the grantor; but the Court, held that the easement descended to the heirs. It will be noted that this was not the case of a dedication of a street for public use, but the reservation of an easement for a private right of way, though it was called a street. No interest of the public apxoears. That ease contains a review of the authorities on this point.

In the ease at bar, in any event, the reservation was at the least a determinable fee, even without words of inheritance or without construction to ascertain the intent of the parties to the deed (Hall v. Turner, 110 N. C., 292), and under it the perpetual user of the land for warehouse purposes was retained. Our conclusion is, that, whether by way of exception or reservation is immaterial; the grantor retained for warehouse purposes a determinable fee in the land conveyed to the railroad company, outside of the 115 feet, for the length of the warehouse he erected — -this right -appurtenant to the ownership of the land covered by the other part of the warehouse. No rights of the defendant railroad, as a common carrier, in respect to rights of way, etc., are involved; it is not a question of permissive user of a part of its right of way, which cannot ripen into an easement, but this is the exception of a portion of the land granted, or a reservation at the least of it to the grantor; and the railroad, in its relation thereto, stands just as any other grantee not a common carrier would stand. It was a right that lay in grant, and the railroad granted nothing — had nothing then to grant — but got the clear depot space of 115 feet, as provided in the exception contained in the deed.

The judgment below is

Affirmed.  