Town of Farmington v. Riley

Prentice, C. J. There are several questions presented by this record to which counsel upon argument have devoted a measure of attention, which, under the conditions presented to us, do not call for our answer. *56 It is, for instance, wholly immaterial whether or not the word "reserving,” as used in the deed of the town to Gleason in connection with the privilege of digging and removing gravel and sand from the described premises, was the strictly correct one to use there. The words "reserve” and “reserving” and "except” and "excepting” are frequently used inartificially and interchangeably. The law, however, looks beyond the form of expression to the substance of the thing expressed, and gives effect to the intent of the parties thus discovered. No technical words are necessary in order to create either a reservation or an exception. Bryan v. Bradley, 16 Conn. 474, 482; Barnes v. Burt, 38 Conn. 541; New Haven v. Hotchkiss, 77 Conn. 168, 174, 58 Atl. 753. It is also unnecessary for us to determine whether the so-called reservation clause in fact imported into the deed an exception of some portion of the premises from the grant, the grantor then remaining the owner of a corporeal hereditament, or a reservation of a mere right or privilege to be exercised upon the land conveyed,—an incorporeal hereditament in the nature of a profit a prendre. If the former, Mrs. Riley certainly has no cause for complaint; if the latter, she has none unless the plaintiff has, to the diminution of her right, been protected in the exercise of a larger right than it reserved. It is equally unnecessary to inquire whether or not the reservation clause in the deed was sufficient to give to the individual members of the local public, other than Gleason and his successors in title, any beneficial right or interest. The judgment appealed from neither recognizes such right or interest, nor is predicated in any way upon such recognition. As Mrs. Riley is not restrained in her enjoyment of the material of the hill for her personal use, and as the reservation attempted to be made in favor of individuals is palpably limited to such use, we are not here con *57 cerned with any aspect of the situation which arises from the provision in favor of individuals. If Mrs. Riley has any grievance, it must arise from some other source. The judgment complained of does nothing more than restrain her from selling or removing, or aiding in the removal, of sand and gravel from the hill in so far as she has no need of it for her personal use. It does not forbid her appropriating the material from time to time for such use to the extent of her needs. She can have no cause of complaint, therefore, unless she has some larger right than that thus accorded to her. Beyond question the effect of the deed was to retain in the grantor some right or privilege to be exercised upon the premises described in the instrument, or a title to some portion of them. Whatever the right, privilege, or title was, the law will protect it, and the appellant cannot complain of the judgment if it does no more. The controlling question, therefore, is, did the deed, whether by force of an exception or of a reservation, leave the grantor town in the enjoyment of the right to dig and carry away the sand and gravel of the hill as its needs might from time to time require, and without limitation of time, save only so much of it as the landowner might need for personal use. The answer to this question must be found in the language of the deed read in the light of the surrounding circumstances. Bryan v. Bradley, 16 Conn. 474, 482. A most significant feature of the reservation clause is that the town was authorized to take and carry away any quantity of the material needed until the whole hill should be removed. Provisions of this character relating to material upon or under the ground have been construed as contemplating an exclusive use, and thus in effect conveying or retaining title to the material where it lay. Caldwell v. Fulton, 31 Pa. St. 475, 478; Gloninger v. Franklin Coal Co., 55 Pa. St. 9, 11; Sanderson v. *58 Scranton, 105 Pa. St. 469, 473; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290, 322. We have no occasion to go to that length. But the language of the instrument is certainly indicative of an intent to retain in the town something far more substantial and enduring than the mere privilege of entering and taking away any material from the premises which should chance to remain unappropriated by others under the landowner’s authority. Plainly it was not contemplated that the rights of the general landowner should be paramount. It was, of course, intended that he should have the right to remove such of the material as he might need for personal use. But the plain indications are that it was intended that his rights should not extend beyond this privilege, and that'beyond it the rights of the community and its members should be paramount. The deed contains no suggestion of any right in the grantee and his assigns to appropriate the stone and gravel except such as they, as individual members of the local public, might have in common with everybody else. It is apparent that the parties in framing the reservation clause intended that the hill should supply the needs, both public and private, of the community, and scarcely less apparent that it was in contemplation that this service should continue for a long period of years. Apparently it was even a matter of conjecture whether or not the time would ever come when the resources of the hill would become exhausted in supplying the demands permitted to be made upon it. The provisions of the clause in question were formulated with palpable reference to community service and the long continuance of such service. Careful regulation was made of the manner in which the material was to be removed as wanted. Haphazard, disorderly, or wasteful removal was not permitted. The controlling purpose of the parties, whether made effective or not, ap *59 pears to have been to secure the dedication and devotion of the useful material of which the hill was composed to the use and benefit of the local public and of its individual members for so long a time as might be. It is difficult to believe that it was in contemplation that the grantee in the deed and his successors in title should take such a right or title as would enable them by the simplest and most apparent means to defeat the underlying purpose of the parties, and turn what was designed for an enduring community benefit into a source of financial profit for themselves. We are of the opinion that it was the intent of the parties that Gleason, the grantee, and his assigns should acquire no greater right to the use of the material of the hill than that which the judgment below accorded to Mrs. Riley, and that the conveyance to Gleason secured to him and them no greater right. The appellant’s brief presents a claim that the plaintiff can have no right or interest in the premises whatsoever, since they were, when conveyed, located within highway limits, and that, therefore, no title to or interest in them which it could either convey or preserve to itself was vested in the town. This claim was not made below, and error is not predicated upon it in the appeal. Presumably the finding was made without reference to it. The appellant is not entitled to its consideration by us, and we should not under the circumstances be justified in considering it. Banks v. Warner, 85 Conn. 613, 617, 84 Atl. 325. There is no error. In this opinion the other judges concurred.