Ryckman v. . Gillis

Lott, Ch. C. The question presented for our decision on this appeal is whether the defendant, in the exercise of the right, reserved to him in and by his deed to Mrs. Shutes, to enter upon a certain and specific portion of the land granted to her and “ to dig and take therefrom the clay and sand that may be found thereon fit for .brick-making” without any restriction or- qualification in the terms of the reservation, can, as decided by the courts below, excavate and remove the same “ only to such an extent as shall leave the plaintiff sufficient lateral support to sustain her lands adjoining thereto.” Such is not a proper construction of the reservation. The defendant in his grant conveyed to his grantee the title to the whole of the land included in the general description thereof. There was no exception from its operation of the one and three-quarters of an acre specifically described and designated in the reserving clause of the deed, but the tenure thereof was only abridged to the extent of the right mentioned and specified in that clause. The legal effect of the deed was the same as if the entire property, without the reserving clause, had been absolutely conveyed to Mrs. Shutes, and she had immediately granted to the defendant the same right as was reserved to him thereby. There was consequently no severance of the ownership of the land de°scribed therein from the residue of the premises granted. The whole, became vested in Mrs., Shutes, and was afterward conveyed by her to the plaintiff subject only to the rights of the defendant secured to him by the reservation. The plaintiff and defendant were, there *73 fore, not contiguous owners of different pieces of land. The plaintiff alone was owner in fee of the entire property described in the deed to her, while the defendant had only an incorporeal right to excavate such reserved clay and sand fit for briek-maldng in the one and three-quarter acres, specifically described to define the extent of the land in which that right could be exercised. It follows, that the doctrine of lateral support and other rights incident to, and affecting lands adjoining and adjacent to each other, owned by different proprietors, has no application in this case. The opinions of the courts below, both at Special Term and the General Terms, show that they based their decisions on the assumption that, as to the clay and sand, the defendant occupied the position of an adjoining proprietor to the plaintiff, and was subject to the rule of the common law, that every person must so use his own property as not to do any damage to that of another. They were mistaken as to the nature and character of the defendant’s right. As I have before shown, the freehold in the one and three-quarters- of an acre, was in the plaintiff. It was not divided so as to vest the title to the clay and sand thereon in the defendant absolutely, as a distinct and separate freehold, the plaintiff having the title to the residue. The defendant was the owner only of an incorporeal right to dig for and take away the clay and sand found within the boundaries of the land to which the right extended for the sole purpose of brick-making, and not the absolute proprietor thereof for all purposes. The ownership of mineral lands is distinguishable from that in this case. In-thosé the surface and the subjacent mines may be, and often are, owned by different parties and by separate titles, the division being by a horizontal line. There is a distinct freehold in each of them, and the subjacent lands or mineral strata must be so occupied and used as not to divest or interfere with a reasonable and proper support of the surface lands. Such are the cases cited by the respondent’s counsel, of Harris v. Ryding (5 M. & W., 59); Humphries v. Brogden (12 Ad. & Ell. [N. R.], 739; Smart v. Morton (5 Ell. & Bl., 30); and *74 the case in the House of Lords of Buchanan v. Andrews (Law R., Appellate Series, Scotch Appeals, 2d July 1873, vol. 2, p. 290). The rights of the mineral owners were considered as freehold estates and not as mere reservations of a right to dig for ores in the land of another. Assuming, then, that the right of lateral support is not incident to the plaintiff’s ownership of the lands outside of the one and three-quarter acres, it remains to be considered whether, under a proper and reasonable construction of the defendant’s right, as granted or reserved to him as above stated, he can exercise it within the boundaries of the land described in the reservation to such an extent only as shall leave the plaintiff lateral support to sustain her lands adjoining thereto. There is no express restriction to that effect in the terms of the grant itself, and I find nothing in the deed from which a restriction to that effect can be inferred. The defendant, it must be borne in mind, was the owner of the entire twelve acres, when he conveyed the same to Mrs. Shutes. He had been previously engaged in the manufacturing of brick, and for that purpose had removed from time to time, such clay and sand, as were required by him. He knew, and his grantee must be assumed to have known, not only that there was a quantity of both clay and sand fit for brick-making, but also that the natural and inevitable effect of digging it out and removing it from the land in which it was imbedded, was to cause the-adjoining land more or less to break off and fall into the pit caused by such digging and removal. With such knowledge, the parties agree that the defendant may, notwithstanding his grant of the entire twelve acres, enter upon a specific portion thereof) clearly defined by distinct and unmistakable monuments, “ to dig and take away therefrom, the clay and sand that may be found thereon fit for brick-making,” at all times thereafter “ so long as the clay and sand may last or be used for brick-making purpose.” There is no limitation to or a qualification of that right prescribed or declared, nor is there anything in the deed to indicate an intention to. limit or restrict it. On *75 the contrary, the fair and reasonable inference, from the particular designation of the land on which it was to be exercised, is that it was to extend to the whole thereof irrespective of its effect on the adjoining property, and that the defendant’s grantee being fully aware and cognizant of the injury that might naturally and reasonably be expected to result from its exercise, was willing to bear the loss occasioned thereby. At all events the defendant as owner, about to part with the title to the entire property, was at liberty to prescribe the terms and conditions on which he would do it; and his grantee, by acceding to his requirement in that respect, was bound thereby and must now abide by the consequences resulting therefrom. The intention of the parties is carried out by a reservation, of the right, and that form of securing it was, I think, adopted with the intent of relieving the land designated for its exercise, from the burden of supporting that adjoining thereto, to which an exception of the land itself from the grant would have subjected it. It is proper to assume that the price paid for the land was fixed with reference to the nature, extent and' effect of the right reserved to the defendant, and if the contract, deliberately entered into, was improvident on the part of either party, that fact cannot alter or affect its construction. There is no ambiguity in the terms of the reservation and there is no reason to believe that the defendant’s grantee did not fully understand them or what was its effect on the grant made to her, It was said by the learned judge who delivered the opinion of the court at General Term, that the deed in question contained a covenant for the quiet enjoyment of the land granted, apparently for the purpose of raising an inference that the right to dig for the clay and soil, so as to affect the adjoining lands, could not have been intended. Such a construction cannot properly be given to that covenant. It applies to the enjoyment of the property conveyed, as qualified or restricted by the reservation and cannot impair or affect the extent of the right reserved. " Entertaining the above views of the plaintiff’s rights, my *76 conclnsion is that the judgment rendered by the court at Special Term, and the affirmance thereof by the General Term, were both erroneous. They must, therefore, be reversed and a new trial ordered, costs to abide the event.