Mannerback v. Pennsylvania Railroad , 16 Pa. Super. 622 ( 1901 )

Opinion by

William W. Porter, J.,

The first ground upon which the appellant plants his request for a reversal, is alleged error committed in the construction put by the court below upon certain language in the deed from Bitting to Spang. The clause is, “ excepting and forever reserving the graveyard on the lands hereby conveyed at all times hereafter to enter thereon without hindrance or denial of the said Daniel Spang, his heirs and assigns.” If this be an exception, it saved to the grantor the fee of the land used as a graveyard. If it be a reservation, the fee passed to the grantee. If a reservation, the plaintiff has no right of recovery, since the reservation would be but of an easement or incorporeal hereditament which will not ordinarily support an action of ejectment: Caldwell v. Fulton, 31 Pa. 483 ; Hancock v. McAvoy, 151 Pa. 464. The technical distinction between an exception and a reservation is well marked. The former is always of part of the thing granted and is the whole of the part excepted. The latter is the creation of a right or interest, which had no prior existence as such, in the thing or part of the thing granted: Kister v. Reeser, 98 Pa. 5; Whitaker v. Brown, 46 Pa. 197; Moffitt v. Lytle, 165 Pa. 173; 6 Am. & Eng. Ency. of Law (2d ed.), p. 515.

The deed, above mentioned, described a tract of land which included the graveyard. That which was withheld from the grantee, by the clause quoted, was a part of the tract conveyed. It was a piece of the land, described by the use to which it was then put. A “ graveyard ” is impossible of definition, if reference to the fact that it is a piece or parcel of land be denied. There was no creation of a right or interest which had no prior existence. Had the clause stopped with the word, “ graveyard,” no basis whatever could be found for the argument, so skilfully presented by counsel, that nothing bat a right of burial was reserved. The words following, describing the graveyard as “ on thé lands hereby conveyed,” followed by the reservation of a right of entry to the graveyard, are not those which a skilful conveyancer would have introduced. While it is true no allowance is usually made for unskilful use of language in construing deeds, yet we are constrained to regard the words appended to the exception of the graveyard as surplusage. This must be the result, if we are to view the subject-matter of the contract as “ the mass of mankind would view it: ” Foster v. Hunk, 109 Pa. 295. If the exception has been supplemented by the reservation of rights, which were involved in, a part of, or incident to, the title reserved, this may not be construed to change the character of the exception, nor to indicate an intention at variance with the explicit and descriptive language used in the substantial part of the exception itself. The position of the exception in the deed does not aid the appellant’s contention, since it matters not “ in what part of the conveyance the reservation is made, whether in the premises, the clause of grant, the habendum or reddendum : ” Stambaugh v. Hollabaugh, 10 S. & R. 362. We, therefore, find no basis for the appellant’s contention that the clause quoted was a reservation of a right and not of an exception of a part of the land.

The appellant further contends that Samuel Fix (the executors of whose will are of the parties plaintiff) waived any wrongful entry by the railroad company by bringing suit for damages for depreciation in value of his land resulting from the construction of the railroad, thereby disentitling himself, and those claiming under him, to recovery in ejectment. The record of the suit referred to seems to have been offered in evidence. The statement of claim is printed in the paper-books before us, together with an extract of a few lines from the testimony and the answer of the trial judge to a point of charge. We have thus but meager knowledge of the case. The appellee says in Ms argument, that the plaintiff there recovered a verdict which was set aside by the court on the ground that the form of the action was mistaken. The opinion of the trial judge in the motion for judgment non obstante, confirms the appellee’s statement. The learned judge holds, as do we, that “ there was nothing in the selection of an improper method of procedure which. could stand in the way of the plaintiff’s bringing another suit in proper form.”

The fifth assignment (which alone remains undisposed of) relates to a matter of fact which was submitted by the court to the jury upon evidence which warranted such submission. We find nothing to sustain the assignments of error and the judgment is therefore affirmed.