Langdon v. Mayor, &c. of N. Y.

out of the thing granted, and not a part of the thing granted.

These definitions undoubtedly correctly set forth the distinction between a reservation and an exception.

It is then said that in the case now before the court, the clause in the deed under discussion constitutes a reservation, because the reservation is for a street, not then in esse, to be kept for all time as a public street where none was before.

I have been unable to find anywhere anything which alludes in any way to the reservation of a street. Upon the contrary, the thing saved and reserved from the granted, is part of that which was before granted, viz.: so much of the several water lots and soil under water above mentioned as will be necessary to make Washington street sixty feet wide and West street seventy feet wide. It is not the streets which are saved and reserved, but the land under water upon which the streets were to be built, and which land under water was included in the general description contained in the grant, and by the clause in question is severed from the estate granted.

The words which follow in the saving clause, viz.: "the said streets to be extended and continued, &c." only refer to the position of the streets in respect to the premises described in the deed.

Neither is this exception void because it is as large as the grant itself and therefore repugnant to the deed, as is the case where a person grants two acres excepting one of them. But, this exception is good, because the granting part of the deed is in general terms, and a particular part of the premises granted is excepted from the operation of the grant. In the grant of a piece of land, excepting the trees and woods, the exception is good.

"So if one have a manor wherein is a wood called the great wood, and he grant his manor, excepting all

Langdon v. Mayor, &c. of N. Y.

the woods and underwood that grow in the great wood and all the trees that grow elsewhere, this is a good exception" (Shepard's Touchstone, 76).

In the case of Cunningham v. Knight, 1 Barb. 399, there was a conveyance of one hundred acres, undoubtedly described by metes and bounds, "reserving and exempting seven acres from the southwesterly part of said piece of land, &c.," and this was held to be a good exception. The only difference between this case and the one at bar being the use of the word "exempting" instead of "saving." The common definition of the word "saving" is "with the exception of," and this is precisely what is meant by "exempting."

Thus it would appear that, testing this exception by the most technical rules, there is little doubt of its validity; but when we come to consider that at the present time the tendency of modern decisions is to give effect to the intention of the parties in a grant rather than to defeat such intent by an adherence to arbitrary rules of construction, there seems to be but little difficulty in coming to the conclusion that there was no intention upon the part of the city of New York, in these grants, to part with the fee of the streets included within their limits.

It had become part of the settled policy of this city long before this grant was made to acquire the fee to all the streets which it caused to be opened for public use, and can it be supposed for a moment that in a grant of land which it owned, it would, contrary to this settled policy, have conveyed the fee of the streets included within the limit of the grant?

The exception contained in the deed under consideration shows that this policy was in the minds of the parties at the time of the making of the grant.

But it is argued, if the fee of that portion of the premises granted which was included within the limits of West and Washington streets was intended to be

Langdon . Mayor, &c. of N. Y.

reserved in the city, why did the city take a covenant from the grantee in the deed, "that the said wharves and streets shall forever thereafter continue to be and remain public streets and highways"?-that it would be absurd to make such a covenant in respect to lands the title to which remained in the grantor.

The deed, after having given a description of the premises granted, as above mentioned, and after having set forth the terms upon which the same shall be held, proceeds as follows: "And that the said party of the second part, his heirs and assigns, or some or one of them, shall or will, at his and their own proper cost and charges, within three months next after he and they shall be thereunto required by the said party of the first part, but not until he or they shall be so required or permitted, build, erect, make and finish, or cause to be built, erected, made and finished such good, sufficient and firm wharves and streets as shall be necessary to make Washington street sixty feet wide and West street seventy feet wide, as may be included within the boundaries of the above mentioned and described water lot, or soil under water, situate on the northerly side of King street, or such other plan as may be adopted, and in such manner as shall be directed by the said party of the first part or their successors." And after referring to other premises mentioned in the grant, not affected by this action, contains as follows: "And, also, that he, the said party of the second part, his heirs or assigns, or some or one of them, shall and will, from time to time (and at all times), forever hereafter, at his and their own proper cost and charges, pave, uphold, and keep in order and repair the said wharves and streets above mentioned; and that the said wharves or streets shall forever thereafter continue to be and remain public streets or highways, for the free and common use and passage of the inhabitants of said city, and all others passing through the same, and in

Langdon v. Mayor, &c. of N. Y.

like manner as the other public streets or wharves of the city now are or lawfully ought to be."

It thus appears that the grantee was to erect and build such streets and wharves as should be necessary to make Washington street sixty feet wide and West street seventy feet wide, and he was bound to keep in good order and repair the said wharves and streets, and then follows the covenant for public use, and it will be subsequently seen that the grantee was to have the exclusive right to the wharfage to arise from the wharf to be maintained by him. This covenant may have been taken as a precaution against the assertion of any exclusive right by the grantee to the wharves and streets built by him, because of the fact of their erection at his cost and expense, and his right to wharfage arising therefrom, and to place beyond controversy the rights of the public in their use, and such a construction would make harmonize all the parts of the deed, and give due effect to each.

If the construction above contended for is not a true one, what could the grantor have supposed he was saving and reserving by the saving clause above mentioned, and what did the grantee suppose was being saved? Because, if the plaintiff is right, then the whole clause is meaningless, as the covenants of the grantee compelled him to build the streets and wharves and dedicate them to public use, and this embraces the whole of the right which the city can claim in respect to these streets and wharves. It seems to me to be much more absurd to hold that it was not the understanding of the parties that the fee of the streets was not excepted from the grant, than that the covenant for public use contained in the deed was intended to set at rest any claim for the exclusive enjoyment of the streets and wharves by the grantee, because of their being built and maintained by him. The latter con

struction gives effect to every part of the deed, whereas

Langdon v. Mayor, &c. of N. Y.

the former nullifies an important part thereof, which was certainly inserted for a well-defined purpose.

In the case of Borell v. Mayor, &c., 2 Sandf. 552, where the grantee in the very deed in question desired to escape taxation upon this bulkhead, it was strenuously urged upon his part that he had no fee in the land covered by West and Washington streets and the bulkheads in question, and the court expressly held, that the title to the land never passed out of the city by this conveyance, and that they were the legal owners of the bulkhead and wharf created thereon by Mr. Astor under the covenants in the grant. It is true that in the opinion the learned judge holds that the grantee's right to collect wharfage is a grant, but a grant of what character? This plainly appears when he speaks of the grant as being a transfer by the corporation of New York to Mr. Astor of a right simply to collect wharfage, without any right to the soil. The crown having granted to the corporation of New York all the wharfage arising and to be collected from the whole island, this right to wharfage was simply a transfer of a part of this franchise.

In the case of Van Zandt v. Mayor, 8 Bosw. 375, the court expressly place the plaintiff's right to damages upon the ground that he was the owner of the fee of the land upon which the bulkhead stood, and the right to collect wharfage was a necessary incident to the fee in the land.

It is further agreed upon the part of the plaintiff, that the defendants cannot raise this question, because they have admitted in the stipulation as to facts that the title was in the grantee. The admission is as follows:

"That the said John Jacob Astor died seized of the said granted premises, and of the improvements thereon, and of the bulkheads hereinbefore referred to." The previous part of the stipulation is, "that on