Putnam v. Pere Marquette Railroad

Brooke, J.

(after stating the facts). It is the contention of defendant that the instrument under consideration conveys to it the fee; and that complainants reserved only the right to cultivate during their lives, for an agreed rental (payment of taxes), such portion of the land described in the deed as should not be used by the defendant. *251 For an interference with this right of cultivation, if is urged that the law affords an adequate remedy. Complainants’ position is that the deed conveys to defendant only the gravel lying between the top soil and a point down to which, this land could be drained, as specified in the deed; that after the gravel has been removed the defendant has no further title to or interest in the premises. This contention involves the further proposition that the fee remains in the complainants; and that the alleged unlawful removal of the top soil constitutes such an injury to the inheritance as to warrant interference by a court of equity.

The language of this instrument is peculiar and ambiguous; but a careful perusal of the whole paper convinces us that it was the intention of the grantors to sell, and of the grantee to buy, only the gravel lying between the top soil and the point fixed in the deed. Several considerations lead to this conclusion. In the first place, the deed recites that “the above-described property is purchased as and for a gravel pit.”

While the granting clause conveys “all gravel, sand, stone and earth ” upon the description, the instrument recites that in removing the gravel “the top soil not fit for its [grantee’s] use shall be thrown off in the cut last made and leveled off reasonably level so it can be plowed ”; and, further, that “ the excavation in said gravel pit is not to be so low as to prevent its drainage into the ditch southwesterly of said gravel pit.” The habendum clause is significant. The grantee is to have and to hold “ the said gravel, sand, stone and earth, as above described.”

It seems to us that the conclusion is irresistible that the parties intended that, as fast as the gravel was removed, the grantors should have the right to resume possession and cultivation of that portion of the premises denuded of its gravel; and when all the gravel (within the limits fixed by the deed) had been removed the interest of the grantee in the property should cease. It is to be noted and again emphasized that the grantee takes to itself, its *252 successors and assigns forever, not the premises above described, but “ the said gravel, sand, stone, and earth, as above described.”

In the construction of deeds or other contracts, the primary end to be attained is, if possible, to ascertain clearly the intention of the parties. Smith v. Smith, 71 Mich. 633 ( 40 N. W. 21 ). Mr. Justice Cooley, speaking for the court in McConnell v. Rathbun, 46 Mich. 305 ( 9 N. W. 426 ), said,

“All grants must be construed reasonably and in the light of the surrounding circumstances.”

While the general rule is well settled that, when the habendum is repugnant and contrary to the granting clause, it is void (see cases cited in Smith v. Smith, supra), that rule is subject to qualifications, and is not always to be invoked. In Powers v. Hibbard, 114 Mich. 533 , at page 552 ( 72 N. W. 346 ), it is said:

“But these rules must be understood and taken in connection with other rules of construction, as, where the grant is uncertain or indefinite concerning the estate intended to be vested in the grantee, the habendum performs the office of defining, qualifying, or controlling. Sumner v. Williams, 8 Mass. 162 [ 5 Am. Dec. 83 ]. Again, where it is impossible to determine from the deed and the surrounding circumstances that the grantor intended the habendum to control, the granting words will govern; but, if it clearly appears that it was the intention of the grantor to enlarge or restrict the granting clause by the habendum, the latter must control.”

This court, speaking through Justice Montgomery, again announced its policy in the case of Mullreed v. Thumb, 116 Mich. 440 ( 74 N. W. 710 ), in the following language:

“ The general rule is that the intention of the parties to an instrument is to be ascertained from a reading of the entire instrument. * * * Another rule is that a repugnancy between different clauses of the deed must be resolved in favor of the first. This latter rule is usually invoked when there has been an attempt to limit the grant *253 ing clause by the habendum, or where there is an attempt to except something specifically granted. This rule should be acted on only as a last resort, and generally the first inquiry is: What was the intention of the parties as expressed by the instrument? Bassett v. Budlong, 77 Mich. 338 [ 43 N. W. 984 , 18 Am. St. Rep. 404 ]. It is true that courts have in some cases subordinated this rule of construction to that which gives preference to the first expression of the grantor, and have done so in some cases at the expense of sacrificing the intent of the parties as plainly expressed. * * * This court has, however, not so applied this latter rule as to subvert the intent of the parties, when plainly expressed ” — citing cases.

See, also, Moran v. Lezotte, 54 Mich. 83 ( 19 N. W. 757 ); Waldron v. Railway Co., 55 Mich. 420 ( 21 N. W. 870 ); Martin v. Cook, 102 Mich. 267 ( 60 N. W. 679 ); Wilson v. Terry, 130 Mich. 73 ( 89 N. W. 566 ); Bolio v. Marvin, 130 Mich. 82 ( 89 N. W. 563 ); Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264 ( 96 N. W. 468 ); Sharp v. Sharp, 148 Mich. 278 ( 111 N. W. 767 ); 18 Cyc. p. 618, and notes.

Assuming, then, that complainants are still the owners of the fee, has equity jurisdiction of the matter ?

The averment in the bill is, in effect that the defendant, by wrongfully removing the rich top soil, and by wrongfully refusing to transfer it to the cut last made and level it off fit for husbandry, as required by the terms of the deed, is inflicting a permanent injury to the freehold. We think the bill states a case for equitable relief under the following decisions: Rhoadesv. McNamara, 135 Mich. 644 ( 98 N. W. 392 ), and cases there cited; Harbor Springs Lumber Co. v. Emmet Circuit Judge, 160 Mich. 497 ( 125 N. W. 390 ); 22 Cyc. p. 825 et seq.

It is contended by the defendant that the bill does not aver that the defendant is removing top soil not fit for its use; that it is only such soil that it, by the terms of the instrument, is compelled to throw off into the cut last made; and therefore that no breach is alleged. We think the instrument is open to the construction that it was *254 agreed at the time of its execution that the top soil was not fit for grantee’s use; but whether this be true or not there can be no doubt that the bill, in effect, avers, in section 3, that the taking of the top soil by defendant is contrary to the contract. Upon the coming in of the answer and the taking of proofs, this question can be determined.

The order overruling the demurrer is affirmed, with costs.

Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.