Mary Schaefer, Appellant, v. Cornelia J. Thompson, Respondent

Mary Schaefer, Appellant, v. Cornelia J. Thompson, Respondent. Second Department, January 11, 1907. Beal property — reservation of right of way by grantor — words of inheritance not necessary — evidence. A reservation by a grantor of a right of way is deemed a grant by the grantee, and at common law words of inheritance wei’e necessary or the reservation was personal to the grantor. That rule, however, has been abrogated by statute and the reservation of a right of way by the grantor although not reserved to his heirs is not personal but runs with the land. When the wording of such reservation is not ambiguous, paroi evidence is not admissible to explain its meaning. Appeal by the plaintiff, Mary Schaefer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 17tli day of October, 1897, upon the decision of the court rendered after a trial at the Suffolk Trial Term without a jury dismissing the complaint upon the merits. Hommel being the owner of a lot 50 feet front on Main street, Hortliport, conveyed (with his wife) the westerly part, 30 feet front, to Schaefer, and later the latter conveyed the same to his wife, the plaintiff. The deed of Hommel contained the following clause: - “ Subject however to the right of the said parties of the first part hereby reserved to them, their heirs and assigns to project cornices two feet over and above the easterly line of said premises, and the said parties of the first part also reserve a right of way for wagons and foot travel seven feet in width along the easterly line of said described premises.” Hommel afterwards conveyed the remainder of his lot, 20 feet front, and the defendant succeeded to that title. .The deed conveyed by metes and bounds, “ with the appurtenances.” This is an action brought under section 1638, et seq., of the Code of Civil Procedure to compel the determination of title to real property, the complaint being that the defendant unjustly claims an easement in the plaintiff’s lot, i. e., the easement of right of way in the said clause of Hommel’s deed set out above. David B. Cahn [Timothy M. Griffing with him on the brief], for the appellant. No appearance for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The plaintiff claims that the reservation clause-in the deed in respect of the right of way jvas personal to the grantor, and therefore ceased when he conveyed his land afterwards. I-t being plain and unambiguous, facts dehors may not be resorted to for its interpretation. It is not affected by the absence of the word “ heirs ” or other words of inheritance. A reservation by the grantor in a deed poll is deemed a grant by the -grantee to him, and operates as such (3 Wash, on Real Prop. 5th ed. pp. 461-2, 470-3 ; Reeves on Real Prop. p. 166; Claflin v. Boston & Albany Railroad, 157 Mass. 489 ; Stockbridge Iron Co. v. Hudson Iron Co., 107 id. 321). It was therefore necessary at common law for a reservation to be to the grantor and his heirs in order to make it perpetual instead of personal to him, that being the rule in respect of all grants in order to convey more than a life estate. But that rule was abrogated by statute in this State, and with us a grant without terms of inheritance conveys an estate of inheritance (1 R. S. p. 748, tit. 5, sec. 1). The judgment should be affirmed. Hirschberg, P: J., Woodward and Miller, JJ.,. concurred; Hirschberg, P. J., and- Miller, J., being also of the opinion that the language of- the reservation permits if it does not require the construction that the reservation of the right of way is to the grant- or’s heirs nnd assigns, as well as the reservation' of the right to project cornices ; Rich, J., concurred in result. t Judgment affirmed, with costs.