Buffalo City Mills v. George H. Toadvine Lumber Co.

after stating the case: The sole question raised by plaintiff’s contention is whether the contract to convey an easement in fee simple over the land is to be construed as a contract to convey the land itself. Conceding that there is no rule of construction leading to this conclusion, counsel contend that ah examination of the entire instrument discloses that such was the intention of the parties. He calls attention to the last clause, providing that in the event that Brown shall not purchase the right of way described in the former clause the defendant will convey a right of way on their property along Pine 'Street, etc., reserving to itself the right to lay water pipes and maintain the same, etc.. From this he draws the conclusion that if by paying $500 for the right of way, as described in the first clause, he gets nothing more than the easement, he is put in the attitude of paying for something which by the second clause he is entitled to demand without paying anything. This he says is an unreasonable construction to put upon the language of the entire deed. *116It is evident that the right secured to Brown in the second clause of the deed is not coextensive with that which he acquired by paying the sum of $500, as described in the first clause. There is no language in the deed explaining the extent of the difference, nor is it necessary for us to conjecture what it may be. It is manifest that Brown did'not contract to pay $500 for an easement which in the same contract is secured to him for nothing. In any aspect of the case, we find no authority for construing the contract to convey an easement into one to convey the land, and this is the result to which the plaintiff’s contention arrives. We concur with his Honor, and the judgment must be

Affirmed.