Steigleder v. Marshall

Opinion by Mr. Justice Thompson, The reservation in the deed of B. A. Mevey by which he reserved “ the six acre field now occupied by Dr. William Sarver and David Welsh, out of the above described land,” is the subject of contention in this ejectment. Mevey owned a farm situated upon one side of a run called Robinson’s Run, and disconnected from it and upon the opposite side of the run a field containing about six acres. In this field there was a fence which at one time ran along the run, and also a second one which fenced off between it and the run about sixty-three and five tenths perches, used for a house and garden. The appellees, the plaintiffs below, contended that by the reservation in the deed the field up to the run was reserved, while the appellants contended that the field up to the garden fence was reserved.. The evidence shows that the whole field was a separate piece of ground detached from Mevey’s farm, and was originally known as the six acre field. Mevey’s son testified substantially that it was known as the six acre field, that it was separate from the other [81] farm, that it was a piece by itself, that Welsh was living in the iouse and occupied the garden, and Doctor Sarver occupied the pasture field. The language of the reservation is “ the six acre field now occupied by Doctor Sarver and David Welsh,” and, as testified, the former occupied a portion of the field for pasture and the other the house and garden. The appellant’s contention was that the portion of the field used for pasture, excluding that portion used for the house and garden, was the extent of the reservation, because there was a joint user of such portion by Welsh and Sarver, one for pasture and the other for obtaining water from a spring upon it, and a small part of it for yard purposes, and because it was fenced off from the garden and house and thus made a distinctive field. When the grantor used the words “ now occupied by Doctor Sarver and David Weish ” it is clear they did not relate to the user of it in going to and from the spring, or that of a small piece used in connection with the house possibly as a yard, but an actual or distinctive occupancy such as was indicated by the use of the house and garden as such, and that for pasturage as such. He thus indicated the entire field not to be determined by the interior fence referred to, but by this obvious occupancy of the different parts of it by those two persons. As this piece of land was detached or disconnected from the grantor’s farm, as it was a six acre field, as it was occupied one part by Welsh for the house and garden and the other by Dr. Sarver for pasturage purposes, it is not within the range of probability that the grantor reserved the part used for pasture only and excepted from the reservation the part occupied by the house and'garden, thus isolating a small strip of sixty-three and five tenths perches. Upon the trial, without objection, the proofs were directed to the character of occupancy by Sarver and Welsh, and in view of them the court properly submitted to the jury as a question of fact whether the reservation applied to the whole of the field extending down to Robinson’s Run. The appellants’ first point, which was in effect that if the field was well marked and limited by fences, on or before April 1, 1865, and contained six acres or thereabouts, and was then in possession of Dr. Sarver, that David Welsh also had possession of a part thereof at the same time, and that no other inclosure or piece of the farm described in the deed from Mevey to Mitch [82] ell and Armstrong, dated April 1,1865, could be described by the same language, or words of description as embraced in the exception contained in the said deed, then the plaintiffs are not entitled to recover and the verdict should be for the defendants, which was affirmed by the court, and the proofs which were directed to the occupancy of the whole field, or to the part exclusive of the part used for house and garden, demonstrate that the question involved was one not relating to the construction of the reservation but to the identity of the location. It was one of location, not of construction. The grantor reserved the field occupied bjr Sarver and Welsh and used the words in regard to such occupancy to describe such field. Under the circumstances the locality of the field thus occupied was a question of fact to be determined by the jury. In Thompson on Trials, § 1461, it is said: “ A question of location or the application of the grant to its proper subject-matter is a question of fact to be determined by the jury by the aid of extrinsic evidence.” Again in § 1463 it is said: “ Whether land in controversy is included within a particular grant being a question .of identity is necessarily a question of fact for a jury.” There was therefore no error in submitting this question of fact to the jury, and this judgment is affirmed.