Lott v. Payne

Whiteiekd, O. J\, delivered the opinion of the court. It is perfectly manifest that the language, “said strip of ground to be used as a private easement or for street purposes only,” was meant to clearly limit the estate granted by Durham to Witherspoon, and by Witherspoon to appellees. Hart v. Gardner, 74 Miss., 153; 20 South., 877; Robinson v. Miss. R. Co., 59 Vt., 426; 10 Atl., 522; Richards v. The Church, 20 How. Prac., 317, and other authorities cited by counsel for appellant. It was manifest error to refuse! to reopen the case and permit Durham, the grantor, to show the whole environment— the situation of the parties and of the property at the time of the execution of the deed to Witherspoon, and at the time-of [222] the execution of the deed of Witherspoon to appellees. But sufficient appears from the testimony admitted to show that the parties all intended the words quoted as qualifying and) limiting Witherspoon’s and appellee’s right to the mere easement and use of the strip in controversy as a right of way for street purposes, and that the action of all parties has conformed to this intention. Thd thing to be ascertained in the construction of a deed, as in the construction of any other contract, is the intention of the parties, and that intention is perfectly manifest here. Under the two deeds in evidence, appellees have the easement, but Mrs. Lott the title to the fee; and under the testimony showing that appellees have taken exclusive possession of the strip, and appropriated it as if it were their own, to the utter exclusion from it of the appellant, it is clear that ejectment was maintainable by appellant against appellees. This is expressly decided in this state in Gordon v. Sizer, 39 Miss., 805, and announced as the correct rule in the Am. & Eng. Enc. Law (2d ed.), vol. 10, pp. 473, 474. Reversed and remanded.