Redemptorists v. Wenig

Robinson, O. J., delivered the opinion of the Court. Ware, from whom both of the parties to this suit derive title, was the owner of a tract of land containing seventy- ³⁵³ seven acres, fronting on the Trappe road, in Baltimore county. The lower part of this tract, binding on the Trappe road, he sold in 1866 to the appellee. The deed, after describing the land by metes and bounds, containing forty acres more or less, has the following clause or reservation: “ Clear of a road thirty feet wide running from the end of forty-five perches on the sixth line,” etc., “ and also clear of the one-half of a road thirty feet wide along the second line,” etc., “ which roads are for the use in common of the parties to this deed, their heirs and assigns.” This road thus described runs from the upper part of the tract, remaining in Ware, the grantor, in a straight line through the land conveyed to the appellee, to the Trappe road, a public highway.

In 1889, more than twenty years after the sale and conveyance to the appellee, Ware sold the upper part of the tract containing thirty-seven acres to Helldorfer, and the latter subsequently sold the same to the appellant. Beyond and to the north of the Ware tract, the appellant is the owner of another tract, which is laid out and used as a public cemetery. For the purpose of making the road described in the Ware deed a more convenient and available way to the thirty-seven acres bought of him, and to its cemetery, the appellant, without the leave of the appellee, and against his remonstrance, proceeded to alter and change the grade of the road. And in so grading it, the road is in some places elevated above the surface, and in others it is cut down to the depth of eight feet.

The effect of these alterations, by which it was changed from a surface road adapted and conforming to the natural rise and fall of the land, to a road with deep cuts in one part and fills in other parts, was not only to divide and separate the defendant’s land, and to interfere with his accustomed and convenient use of the same, but also to collect the surface water falling during heavy rains, and to discharge the same in great ³⁵⁴ volumes on and over the appellee’s land, carrying with it great quantities of sand and gravel, thereby destroying his crops and rendering the land unfit for cultivation. This is an action of trespass brought by the appellee to recover damages for the alleged wrongful acts on the part of the appellant. In its defence to the action the appellant contends, and so asked the 'Court to instruct the jury, that under the Ware deed the appellee was entitled to a mere easement in the road in question, and that the fee in the bed of the road was reserved by Ware, the grantor. This deed, we agree, is to be construed according to the intention of the parties, and this intention is to be ascertained from the language and terms of the deed itself; and if the language used be vague and uncertain, then the deed must be construed according to the well settled rules by which instruments of that kind are governed.

That Ware, the grantor, meant to reserve the right of way over this road for the use of the thirty-seven acres, the upper part of the tract which remained unsold, is clear beyond all question, for this is reserved in explicit terms. But it is by no means clear he meant to reserve the fee in the bed of the road which ran through the appellee’s land, and which was,, in fact, included within the metes and bounds described in his deed. The sale by Ware of the lower part of the tract binding on the public highway left him without the means of access from the upper part to the public road, except through the land of the appellee. And hence it was necessary to reserve the right of way over the land of the latter.

But we do not see any reason why he should reserve the fee in the road itself and which runs entirely through the land sold to the appellee. So construing the language of the deed, in connection with the subject-matter to which it refers, it was the intention of the parties, it seems to us, to reserve to the grantor merely the use of this road as the means of egress and ingress to the upper part of the tract, which be ³⁵⁵ longed to' him. Deeds are always construed in favor of the grantee and against the grantor, and a reservation in behalf of the latter will not be enlarged beyond the fair and natural import of the language used. The appellant is, of course, entitled to the reasonable and proper enjoyment of this