Polebitzke v. John Week Lumber Co.

Babees, J.

As we read the complaint, no claim is made in it for any damages resulting from permitting logs to lie-on the part of lots 1 and 2 of section 15, township 24 north, *380 of range 7 east, conveyed by the Webster Manufacturing Company to the Stevens Point Boom Company. We find the following admission in the record, made by plaintiffs’ counsel near the close of the trial: “I admit that we have no right — that is, the plaintiffs — to a strip of land one rod bordering on the Wisconsin river, and the bayou.” It was stipulated on the trial that the Webster Company owned this parcel of land when it conveyed the same and that the defendant had acquired such right to use this strip as the Boom Company possessed under this deed. It was also stipulated that the plaintiffs obtained their title through mesne conveyances from the Webster Company. There is no claim but that the conveyance to the Boom Company was prior in point of time or that its deed was not seasonably recorded. The •conveyance from the Webster Company under which plaintiffs claim does not appear to be in the record, so we have no means of knowing what recitals such deed contains. This is not material, however, the priority of the deed to the Boom Company being conceded. The circuit court construed this deed as granting an easement only, and charged the jury as follows:

“This right of rafting and boomage does not, however, include any right to allow logs to remain on this strip for a considerable period after they shall have lodged and the water has receded; nor the right to go 'on and remove the logs after they shall have so remained there, without paying for the injury occasioned by such remaining and subsequent removal.

“You are to consider whether the defendant in any or all of the years 1906, 1901, 1908, 1909 and 1910, allowed its logs to lodge and remain upon the one-rod strip longer than was reasonably necessary for their removal, . . . and in case you find that it did, then you should return a verdict in favor of the plaintiffs for the amount of such damage.”

The defendant excepted to each of these paragraphs of the charge. We find it difficult to ascertain from the evidence to what extent logs were permitted to remain on plaintiffs’ *381 land, outside of the one-rod strip, bnt there can he no doubt that damages were allowed under the charge for permitting them to remain on the parcel of land conveyed to the Boom ■Company. If the charge was incorrect the judgment must he reversed, and the only question presently involved is the ■extent of the rights acquired in this strip by the Boom Company under its deed.

In construing deeds, as in construing other instruments, the courts aim to arrive at the intention of the parties. ■Where there is no ambiguity in the language used, the intent must be arrived at from such language. Chicago, M. & St. P. R. Co. v. H. W. Wright L. Co. 123 Wis. 46, 50 , 100 N. W. 1034 ; Barkhausen v. C., M. & St. P. R. Co. 142 Wis. 292, 297 , 124 N. W. 649 , 125 N. W. 680 ; Wallis v. First Nat. Bank, 155 Wis. 306, 314 , 143 N W. 670. And it is the duty of the court in construing a deed to give effect to all of the provisions therein found if it can be done without doing violence to the language used. Chicago, M. & St. P. R. Co. v. H. W. Wright L. Co., supra; Williams v. Jones, 131 Wis. 361 , 111 N. W. 505 .

An easement is something quite different from a fee or a limited fee. In the one case title does not pass, but only a right of use or privilege in the land of another. In the other -cases the title does pass even though the use be limited. The .granting clause in this deed contains the most appropriate language that could be devised by expert conveyancers to convey a fee, except as it may be modified by the words “for the purpose of rafting and boomage.” The habendum clause is the one usually found in common-law forms of warranty ■deeds, as is the covenant of warranty. If the quoted words grant an easement only, then they are repugnant to the preceding words of grant contained in the deed, as well as to what follows. The grant of a fee may be coupled with a restriction of the right of use. This being so, a deed such as ■the one before us can be construed so as to give effect to every *382 part of it. The restriction may be a condition subsequent or a covenant, depending on circumstances, but we think it has rarely if ever been held that it creates an easement.

The following cases hold that a grant of land coupled with a restriction as to use conveys the fee and not a mere easement in the thing granted: Messer v. Oestreich, 52 Wis. 684 , 10 N. W. 6 ; Towne v. Salentine, 92 Wis. 404 , 66 N. W. 395 ; Strong v. Doty, 32 Wis. 381 ; Thorndike v. Milwaukee A. Co. 143 Wis. 1, 12, 13 , 126 N. W. 881 ; Rawson v. School Dist. 7 Allen, 125 ; Barker v. Barrows, 138 Mass. 578 , and cases cited; Abbott v. Curran, 98 N. Y. 665 ; Vail v. Long Island R. Co. 106 N. Y. 283 , 12 N. E. 607 ; Wilkes-Barre v. Wyoming H. & G. Soc. 134 Pa. St. 616, 19 Atl. 809 ; Fitzgerald v. Faunce, 46 N. J. Law, 536; Downen v. Rayburn, 214 Ill. 342 , 73 N. E. 364 ; Newpoint Lodge v. School Town, 138 Ind. 141 , 37 N. E. 650 ; Farnham v. Thompson, 34 Minn. 330 , 26 N. W. 9 . t A number of these cases also hold that the restriction clause does not create a condition subsequent where there is no provision for reversion in case the property is put to a different use from the one specified.

Had the provision restricting the' use to which the strip conveyed might be put been followed by a reverter clause in case the land was put to different use, a condition subsequent would or at least might have been created. Lawe v. Hyde, 39 Wis. 345 .

Under some circumstances restrictions or provisions in a deed will be held to create a condition subsequent without a reverter clause. Horner v. C., M. & St. P. R. Co. 38 Wis. 165 ; Glocke v. Glocke, 113 Wis. 303 , 89 N. W. 118 ; Wanner v. Wanner, 115 Wis. 196 , 91 N. W. 671 ; Western L. & C. Co. v. Copper River L. Co. 138 Wis. 404, 412 , 120 N. W. 277 ; Drew v. Baldwin, 48 Wis. 529 , 4 N. W. 576 ; Delong v. Delong, 56 Wis. 514 , 14 N. W. 591 . Such conditions, however, must either be created in express terms or by clear implication and are strictly construed. Burgson v. Jacobson, 124 Wis. 295 , 102 N. W. 563 ; Wier v. Simmons, 55 *383 Wis. 637 , 13 N. W. 873 . And they are most strongly con-strued against the grantor. Mills v. Evansville Seminary, 58 Wis. 135 , 15 N. W. 133 .

There is absolutely nothing in the record here to show that ■there was any intention to create a condition subsequent, aside from the inference that should be drawn from the recital that the land was to be used for rafting and boomage purposes. This language is in itself entirely inadequate to .create such a condition. Brugman v. Noyes, 6 Wis. 1 ; Strong v. Doty, 32 Wis. 381 ; Thorndike v. Milwaukee A. Co. 143 Wis. 1 , 126 N. W. 881 ; Horner v. C., M. & St. P. R. Co., supra, and cases above cited; Downen v. Rayburn ( 214 Ill. 342 , 73 N. E. 364 ), 3 Am. & Eng. Ann. Cas. 36, and cases cited in note, p. 38; Adams v. First Baptist Church ( 148 Mich. 140 , 111 N. W. 757 ), 12 Am. & Eng. Ann. Cas. 224, and cases cited in note, p. 227. The only case we have found in this state which might be said to conflict in any way with what has been said is Pepin Co. v. Prindle, 61 Wis. 301 , 21 N. W. 254 , and it was there admitted by counsel for the county that the deed contained a condition subsequent.

Circumstances might arise where the strip of land in question might be put to some use that would materially interfere with the use and enjoyment by the plaintiffs of the adjoining land which they own. In such a ease it might well be that •a court of equity would enjoin such use and that the damages resulting therefrom would be recoverable. The question is not before us. The Boom Company had the right to permit logs to lie on this strip as long as it desired, and so did the defendant. The Boom Company is the owner of at least a limited fee in this strip of land with the privileges and appurtenances belonging thereto, and plaintiffs are not entitled to collect any damages because logs were permitted to lie there■on. The charge of the court was erroneous and the judgment must be reversed.

By the Court. — Judgment reversed, and cause remanded for a new trial.