This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The purpose and effect of an exception in a conveyance is to except or exclude from the operation of the conveyance some part of the thing or things covered by the general words of description therein, as when one conveys a piece of land, excepting a certain part thereof, or the houses thereon, it being properly always a thing actually existent.93 A reservation in a conveyance, as defined by the common-law writers, is a clause by which the grantor of the land creates, in favor of himself, some new thing "issuing out of" the land, and not previously in existence, such as a rent, or some other service of a feudal or quasi feudal character.94
The expressions "reserve" and "reservation" have been applied, in a somewhat untechnical sense, in connection with a clause in a conveyance by which the
88. Webb v. Mullins, 78 Ala. Ill; Bell v. Mcduffie, 71 Ga. 264; Davis v. Davis, 43 Ind. 561; Brown v. Manter, 21 N. H. 528, 53 Am. Dec. 223; Weinrich v. Wolf, 24 W. Va. 299; Freuden-berger Oil Co. v. Simmons, 75 W. Va. 337, Ann. Cas. 1918A 873. 83 S. E. 995.
89. Mckinney v. Settles, :;1 Mo. 541.
90. Hummelman v. Mounts, 87 Ind. 178.
91-92. Caldwell v. Caldwell, 140 Ga. 736 ,79 S. E. 853.
93. Co. Litt, 21a; Sheppard's Touchstone, 77 ct seq.; Washington Mills Emery Mfg. Co. v. Commercial Fire Ins. Co. (C. C), 13 Fed. 646; Spencer v. Wabash
R. Co., 132 Iowa, 129, 109 N. W. 453; Brown v. Anderson, 88 Ky. 577, 11 S. W. 607; Snoddy v. Bolen, 122 Mo. 479, 24 L. R. A. 507, 24 S. W. 142; 25 S. W. 932; Edwards v. Brusha, 18 Okla. 234. 90 Pac. 727. See Truett v. Adams, 66 Cal. 218, 5 Pac. 96; Brown v. Allen, 43 Me. 590; King v. Wells, 94 N. C. 344; Woodcock v. Estey, 43 Vt. 515.
An exception in a covenant of title is not necessarily an exception or reservation for the purposes of the conveyance. Wen-dall v. Fisher. 187 Mass. 81, 72 N. E. 322; Towns v. Brown, (Ky.) 114 S. W. 773.
94. Co. Litt. 47a; Sheppard's Touchstone, 8<>; Doe d. Douglas grantor retains a power of disposition over the land conveyed,95 by which he is given a right to repurchase the property,96 by which he retains the right to recover damages for past injuries to the property conveyed,97 and by which he retains a limited estate in the land,98 and perhaps in other cases of stipulations in behalf of the grantor. Such cases evidently do not fall within the common-law definition of a reservation, but the use of the expression in these connections is highly convenient, and appears, in the ordinary case, to be free from objection.
- As creating easement. The nature of an exception and of a reservation being, at common law, such as above described, neither was strictly appropriate for the creation, on the conveyance of land, of an easement or right of profit in the land in favor of the grantor, and, accordingly, the English courts have decided that such an attempted exception or reservation must be construed as a grant back of an easement by the grantee of the land.99 In this country, however, a different view has been taken, and such a right has almost invariably been regarded as the proper subject of a reservation,1 and sometimes even of an exv. Lock, 3 Adol. & El. 743; Durham & S. Ry. Co. v. Walker, 2 Q. B. 940.
95. See Varner v. Rice, 44 Ark. 236; Bouton v. Doty, 69 Conn. 531, 37 Atl. 1064; Horn v. Broyles, (Tenn. Ch.) 62 S. W. 297; Van Ohlen's Appeal, 70 Pa. 57.
96. Saddler v. Taylor, 49 W. Va. 104, 38 S. E. 583.
97. Richardson v. Palmer, 38 N. H. 212; Shepard v. Manhattan Ry. Co. 169 N. Y. 160, 62 N. E. 151; Maurer v. Friedman, 197 N. Y. 248, 90 N. E. 814.
98. Wood v. Logue, 167 Iowa ception.2 The view that a right of use or profit may be created by reservation seems to involve but a slight extension of the common law conception of a reservation, and it is more or less justified by the fact that in this country the conveyance is usually executed by the grantor alone, so that the effect of regarding a stipulation for such a right in favor of the grantor as a grant back, as is done in England, would usually result in rendering it invalid. But to describe such a stipulation as an exception involves a complete departure from the common law view of the nature of an exception, as being in effect merely a part of the description of what is conveyed.
436 Ann. Cas. 1917B, 116, 149 N. W. 613; Vessey v. Dwyer, 116 Minn. 245, 133 N. W. 613; Merrill v. Publishers' Paper Co. 77 N. H. 285; 90 Atl. 786; In re Dixon, 156 N. C. 26, 72 S. E. 71; Rembert v. Vetoe, 89 S. C. 198, 71 S. E. 959.
99. Durham & S. Ry. Co. v. Walker, 2 Q. B. 940; Wickham v. Hawker, 7 M. & W. 63; Corporation of London v. Riggs, 13 Ch. Div. 798.
1. Chappell v. New York, N. H. & H. R. Co., 62 Conn. 195. 17 L. R. A. 420. 24 Atl. 997; Haggerty v. Lee, 50 N. J. Eq.
In so far as the courts, thus recognize the possibility of utilizing an exception as well as a reservation for the purpose of creating an easement, it being conceded that the particular expression used, whether "except" or "reserve" has little weight in this connection,3 it was to be anticipated that the determination, in any particular case, whether there is the reservation of an easement, or the exception of an easement, would be attended with considerable difficulty. In some decisions, upon the assumption that the word " heirs" is necessary for the creation of an easement in perpetuity, if it is by means of a reservation, while not necessary if it is by means of an exception,4 the absence of such word has been regarded as showing that the language used in the particular case was intended to operate as an exception and not a reservation,5 a view which
464, 26 Atl. 537; Claflin v. Boston & A. R. Co., 157 Mass. 489, 20 L. R. A. 638, 32 N. E. 659; Grafton v. Moir, 130 N. Y. 465, 27 Am. St. Rep. 533, 29 N. E. 974; Kister v. Reeser, 98 Pa. St. 1, 42 Am. Rep. 608. See cases cited post, this section, notes 5-8.
2. Inhabitants of Winthrop v. Fairbanks, 41 Me. 307; Ring v. Walker. 87 Me. 550, 33 Atl. 174;