Clafiin v. Boston & A. R. Co., 157 Mass. 489, 20 L. R. A. 638, 32 N. E. 659; Bridger v. Pierson, 45 N. Y. 601. See ante, Sec. 362.

3. Post, this section, note 8.

4. Ante, Sec. 362.

5. Winthrop v. Fairbanks, 41 Me. 307; Hall v. Hall. 106 Me. 389, 76 Atl. 705; White v. N. Y. & N. E. R. Co., 156 Mass. 181. 30 N. E. 612; Hamlin v. Rail1608 Real. Property. [Sec. 436 involves an imputation of intention to the person using the words which is seldom, if ever, in accord with his actual intention. Some courts, on the other hand, regard as an exception a clause undertaking to create in favor of the grantor of the land an easement corresponding to a preexisting quasi easement, on the theory that in that case there is a retention by the grantor of a thing actually existent, while if the easement sought to be created does not correspond to a preexisting quasi easement, the clause is to be regarded as a reservation, as undertaking the creation of a thing not before existent.0 This latter distinction, though ingenious and readily capable of practical application, appears to ba without any foundation in principle. As heretofore explained,7 a quasi easement is said to exist when the owner of land uses part of his land for the benefit of another part, but this is merely a form of expression, and a quasi easement is not in itself a right recognized by the law. One uses part of his land for the benefit of another part by right of ownership, and not by reason of the existence of a quasi easement. Consequently an "exception" of an easement corresponding to a preexisting quasi easement involves the creation of a new and distinct legal right to the same extent as a "reservation" of an easement not corresponding to a use previously made of the land conveyed.

As above stated, in construing language creating, or attempting to create, rights in the land granted in favor of the grantor, the courts ignore the terms used, such as "except" and "reserve," and ordinarily consider it to constitute an exception or a reservation, according to the nature of the rights sought to be creroad Co., 160 Mass. 459, 36 N. E. 200; Lipsky v. Heller, 199 Mass. 310, 85 N. E. 453; Smiths Ex'cr v. Jones, 86 Vt. 258. 84 Atl. 866 (semble).

6. Hall v. Hall, 106 Me. 389,

Ated.8 Accordingly, applying what seems the proper distinction between an exception and a reservation, language which seeks to create rights in favor of the grantor in a certain part of the land will be regarded as constituting a reservation or an exception, accordingly as an easement in such part is created, or the ownership of such part is retained.9 And in case the conveyance provides that the grantor shall have rights as to timber on the land, the court will consider merely whether the intention is that the grantor shall retain the ownership of the timber, or shall have only a right to come on the land to take timber, and will regard the provision as an exception or a reservation accordingly.10 And a stipulation as to minerals may be either a reservation of a right to take minerals, or an exception of the minerals in place.11

76 Atl. 705 {semble); Claflin v. Boston & M. R. R., 157 Mass. 401; Foster v. Smith, 211 Mass. 411, 98 N. E. 693; Smith's Execu-v. Jones, 86 Vt. 258, 84 Atl. 866. 7. Ante. Sec. 363 (b).

8. Webb v. Jones, 163 Ala. 637, 50 So. 887; Van Slyke v. Arrowhead Reservoir & Power Co., 155 Cal. 675, 102 Pac. 816; Zimmerman v. Kirchner, 151 Iowa 483, 131 N. W. 756; Mc-intire v. Lauckner. 108 Me. 443, 81 Atl. 784; Claflin v. B. & A. R. R Co, 157 Mass. 489, 20 L. R. A. 639, 32 N. E. 659; Martin v. Cook, 102 Mich. 267, 60 N. W. 679; Smith v. Furbush, 68 N. H. 123, 47 L. R. A. 226, 44 Atl. 398; Hagerty v. Lee, 54 N. J. L. 580, 20 L. R. A. 631, 25 Atl. 319; Gill v. Fletcher, 74 Ohio St. 295, 113 Am. St. Rep. 962, 78 N. E. 433; Riefler & Sons v. Wayne Storage Water Power Co.. 232 Pa. 282, 81 Atl. 300; Coal Creek Min. Co. v. Heck, 15 Lea (Tenn.) 497; Watkins v. Tucker, 84 Texi 428, 19 S. W. 570; Bradley v. Virginia Ry. & Power Co., Us Va. 233. S7 S. E. 721: Studebaker v. Beek, 83 Wash.

260, 145 Pac. 225; Jones v. Hoffman, 149 Wis. 30 134 N. W. 1046.

9. Barnes v. Burt, 38 Conn. 541; Wellman v. Churchill, 92 -Me. 193, 42 Atl. 352; Winston v. Johnson, 42 Minn. 398, 45 N. W. 958; Jones v. De Lassus, 84 Mo. 541; Langdon v. New York, 6 Abb. N. Cas. 314, 93 N. Y. 129; Towne v. Salentine. 92 Wis. 404, 66 N. W. 395; Prichard v. Lewis, 125 Wis. 604, 1 L. R. A, (N. S.) 565, 110 Am. St. Rep. 873, 104 N. W. 989.

10. Van Slyke v. Arrowhead Reservoir & Power Co 155 Cal. 675, 102 Pac. 816; Knotts v. Hydrick, 12 Rich. L. (S. C.) 317: Rich v. Zeilsdorff, 22 Wis. 544, 99 Am. Dec. 81.

11. Gill v. Fletcher, 74 Ohio St. 295, 113 Am. St. Rep. 962, 78 N. E. 433; Snoddy v. Bolen, 122 Mo. 479, 24 L. R. A. 507. 24 S. W. 142. 25 S. W. 932; Barrett v. Kansas & Texas Coal

- Reservation in favor of third person. At common law a reservation of rent cannot, by the use of particular language, be made to operate in favor of a person other than the lessor or grantor.12 This rule has been said to be based on the consideration that, since the rent reserved is a return or compensation for the land granted, the one who grants the land is the only person entitled to the benefit of the reservation, and it was also said that a reservation of rent in favor of a stranger would involve the danger of maintenance.13 A like view, that a reservation must be in favor of the grantor, has been asserted in connection with the reservation of an easement or right of profit,14 but there are to be found occasional dicta or decisions to the effect that an easement may be reserved in favor of a person other than the grantor.15

Co., 70 Kan. 649, 79 Pac. 150; Preston v. White, 57 W. Va. 278, 50 S. E. 236; Whitaker v. Brown, 46 Pa. St. 197.

12. Litt. Sec. 346; Co. Litt. 143b, 213b. See 1 Tiffany, Landlord & Ten., Sec. 170.

13. Gilbert, Rents 54.