Akron Cold Spring Co. v. Unknown Heirs of Ely

Washburn, J. This matter is before tbis court on appeal, and presents for the most part questions — 75 — of law only. The action is to quiet title to land that the plaintiff has been in the possession of for more than seventy years. Justin Ely was the owner of certain real estate in the township of Portage, Summit county, Ohio, which is now a part of the city of Akron. On this property there was a valuable spring, concerning which there was an agreement between Justin Ely and “some of the members” of The Akron Cold Spring Company, which was then a corporation. Just what that agreement was cannot now be definitely established. On February 1, 1855, Justin Ely having died, the executors of his estate executed and delivered to Michael Hartman a warranty deed of all of said land, the conveyance “being subject to all legal highways, also to all rights of The Akron -Cold Spring Company to the spring of water on said land, together with not exceeding 60/100 of am acre of land for a reservoir at salid spring, with the right to use stone for the construction of said reservoir from the land so reserved to said company. It being understood that said reservoir is to be enclosed by a good fence by said company and maintained by them.” It appears from the records of The Akron Cold Spring Company, which are in evidence, that a charter was granted to the company by special act of the Legislature in 1848, and that the company was authorized in that charter to acquire a spring upon the property, the title to which is involved in this action, and for that purpose the corporation was authorized to purchase and hold such real and personal estate as was necessary for constructing, maintaining and keeping in repair an aqueduct and — 76 — its appendages, and was also authorized to dispose of the same by lease, deed or other conveyance. The record further discloses that the company immediately thereafter organized for business, and that in December, 1849, a contract was let for the digging of ditches and laying of pipe, and that as early as the year 1850 the company was delivering water and receiving pay therefor, and as early as the year 1851 the company began to pay dividends to its stockholders. It is apparent, therefore, that at the time of the execution and delivery of the foregoing deed to Michael Hartman on February 1, 1855, that company was in the possession and occupancy of the land surrounding the spring, under a contract, or agreement, between Justin Ely and ‘ ‘ some of the members ’ ’ of The Akron Cold Spring Company, acting for that corporation. In the light of subsequent events, which will be hereinafter referred to, we construe the above language of the deed as an exception from the grant to Hartman of the fee of at least ‘60/100 of an acre of land. It is true the provision is that the conveyance is subject to the rights of The Akron Cold Spring Company, and it is also true that the 60/100 acre of land is referred to as reserved to said company. A reservation is something taken back out of that which is. clearly granted, and an exception is some part of the estate not granted at all, and in determining whether the language used was intended by the parties to be a reservation or to constitute an exception courts generally ignore the terms used and determine the question according to the nature of the right sought to be created; if an easement is being created, the words — 77 — will be construed as a reservation, and if the ownership is retained, then they are considered as an exception. 2 Tiffany on Real Property (2 ed.), 1608, and Sloan v. Lawrence Furnace Co., 29 Ohio St., 568. While the language used in the deed in question is susceptible of the construction that it was the intention of the parties to create an easement, a part of the language used is susceptible of the construction that the parties intended to except from the grant not exceeding '60/100 acre of land.It seems to us that what the parties intended is made plain by what they subsequently did. It must be borne in mind that there was some sort of an agreement between Justin Ely and the Spring Company, or those who were promoting the Spring Company, and that the executors of Justin Ely, when they made the deed in question, had that agreement in mind. Subsequent to the agreement, and about seven months after the deed to Hartman, the executors of Justin Ely, in carrying out that agreement, executed and delivered to the Spring Company a warranty deed of 56/100 of an acre of land, which was the subject of the reservation or exception in the deed to Hartman. That deed from the executors of Justin Ely to the Spring Company recited that the Spring Company had made a good stone reservoir at the spring, and had laid an aqueduct of iron pipe leading from such reservoir, and had enclosed the land to be used in connection with the spring with a good and sufficient fence “in conformity with an agreement entered into between some of the members of said corporation and Justin Ely,” and the deed recites that for; — 78 — a consideration of $1 said executors “do give, grant, bargain and sell and confirm unto said Akron Gold Spring Company, the successors and assigns of said company forever,” 56/100 acres of land, described by metes and bounds, “to have and to hold to the said Akron Cold Spring Company in Akron and the successors and assigns of said company forever, in trust nevertheless, for the ends and purposes hereinafter declared, that is to say * * A provision follows that the land shall be used and occupied for the sole and mere purpose of maintaining thereon a reservoir for the supply of water, and for no other purpose whatever. The deed also recites that “provided nevertheless and these presents are on the express condition following,” — and then follows an "enumeration of certain things that the Spring Company is to do, which if not done shall give said executors “the right to re-enter and repossess said premises and appurtenances as in our of their former estate or estates.” That deed was recorded September 8, 1855, and the Spring Company was then and has ever since been in the exclusive occupancy and possession of the land therein described. Said executors by giving to the- Spring Company a conditional fee, reserving to themselves the right of re-entry on condition broken, plainly indicates that it was their intention in their deed to Michael Hartman to except therefrom the fee of “not exceeding 60/100 of an acre of land for reservoir at said spring” and was not their intention by the language used to convey the land subject only to an easement of the Spring Company. The language of the Hartman deed is in — 79 — definite and uncertain, and this construction of the same by the executors, which clearly shows their intention in using the language they did in the Hartman deed, was duly filed and recorded in the records of the county, and if Hartman was not charged with notice thereof, his successors in title were charged with such notice. The deeds from Hartman and the succeeding deeds in the chain of title all contained a reference to the rights of the Spring Company, and notice of what those rights were claimed to be was contained in the deed to the Spring Company from the executors, which was on file. Hartman and his successors in' title have acquiesced all these years in the construction placed upon the language used in the Hartman deed by the grantors therein, and they ought not now to be permitted to repudiate a construction which was justified by the language used, and which has been acquiesced in for more than half a century. If this conclusion is right, the successors in title of Hartman have no interest in the land described in the deed to the Spring Company, and the title of the Spring Company in such land should be quieted against such successors in title, who are claiming an interest in the land, and who are parties to this suit. The same conclusion may be reached from an entirely different course of reasoning. If it be conceded that the deed to Hartman conveyed a fee simple title to the land which was afterwards conveyed by the executors to the Spring Company, it follows that the Spring Company obtained no right in the premises by the deed to it from such executors, and it is also truel — 80 — that the Spring Company received no right in said property from the language used in the Hartman deed, the same being construed as a reservation in the nature of an easement, for the reason that the Spring Company was not a party to that deed, and a reservation in a deed is ineffectual to create title in a stranger to the conveyance; a reservation is something issuing from or coming out of the thing granted, and must be to the grantor or party executing the conveyance and not to a stranger. 2 Tiffany on Real Property (2 ed.), 1614. Such reservation, for the purpose of this case, on the theory we are now considering the same, is simply void and of no effect whatever, and, in that view, Hartman received by his deed a fee simple title not subject to any rights of the Spring-Company. It follows, therefore, if the Spring Company obtained no rights in the property from the deed of the executors to it, or from the deed of the executors to Hartman, that then the Spring Company has been in the open, notorious, exclusive, adverse possession of the property for seventy years, and that the defendants, who are successors ■ in title from Hartman, have no valid claim of an interest therein. For that reason the title of the Spring Company should be quieted as against the claims of such parties. Independent of all the foregoing reasons why the title of the plaintiff should be quieted against the present successors in title to • Hartman is the fact that the plaintiff was in the actual possession of the real estate in question at the time the Hartman deed was delivered. This possession was no — 81 — tice to Hartman of the rights and claims of the plaintiff, a claim of conditional fee, as was shown by the deed which was subsequently delivered to it, and the adverse possession of the plaintiff started not later than the time the deed was delivered. The plaintiff was not bound by the recitation in the Hartman deed which in any way limited or attempted to describe its interest in the property which it had by contract with Justin Ely, and which was wholly protected by its actual possession of the property. As to the defendants, who are the unknown heirs of Justin Ely and his executors, the Spring Company has no right at this time to an order quieting its title, the facts being that the use of the property by the Spring Company has always been and is now in accordance with the conditions contained in the deed, and therefore such heirs have not had and do not now have any right of reentry. As to all defendants except the successors in title of Hartman the petition may be dismissed without prejudice, and a decree may be drawn quieting the title of the Spring Company as to the other defendants. Decree accordingly. Pardee, J., concurs in decree, and the reasons assigned therefor.