Patton v. Western Carolina Educational Co.

Davis, J., (after staling the case). It is conceded that the deed from King to M. M. Patton included the streets obstructed by the defendants, and the effect of the admission of the defendants in regard to the judgment is to present the single question: Did the defendants have the right to obstruct the streets in the manner set out ? *411 The title being originally in M. M. Patton, through whom the plaintiffs claim, what was the effect of the reservation in the deed from him to M. Bowen? Conceding, as insisted by the defendants, that the deed conveyed the title to the soil, and that the reservation was only of an easement, the title to it is in the plaintiffs, who have been in possession since the death of Patton. Merrimon v. Russell, 2 Jones Eq., 470; Hays v. Askew, 5 Jones, 63. The reservation is not vague and uncertain, as was the case in Waugh v. Richardson, 8 Ired., 471, and McCormick v. Monroe, 1 Jones, 13, relied on by defendants. In those cases the exceptions in the deeds were held to be inoperative and void, because so vague and uncertain that no effect could be given to them. The case of Fisher v. Mining Company, 97 N. C., 95, cited by counsel, has no application. In that case the plaintiffs failed to show title in themselves, or in those through whom they claimed title to the excepted minerals. In the case before us it does appear that the title and’ rights to the easements reserved was in M. M. Patton, and in the plaintiffs who claim under him. The plaintiffs abandoned all claim to title in the land, and only insist upon their right to the unobstructed use of the street reserved. It is shown that there has been no abandonment or nonuser of the street, and there is no claim of title to the soil by length of possession, or otherwise. The plaintiffs have shown title to the easement reserved, and we think the obstructions admitted to have been made were invasions of their right. A street with gates or fences across it is not what was reserved, but a full and unob-strdcted “ 33 feet for a street.” Affirmed.