The complaint alleges that the plaintiffs are the owners and entitled to the possession of the land mentioned in the complaint by virtue of a reservation contained in a deed from M. M. Patton to M. Bowen, under which defendants claim, and that the possession is wrongfully withheld; and, further, that they have been and are entitled to a free and unobstructed right of way over and upon said land and every part thereof, and that the defendants have obstructed the said right of way with gates, etc., and they ask judgment for possession of the land, for the removal of the obstructions, and for damages and for costs.

The material allegations of the complaint are denied.

The plaintiffs offered a deed from Mitchell King to M. M. Patton, dated 7 September, 1855, which (the defendants admitted) embraced in its boundaries the real estate in controversy, and that the plaintiffs were the heirs-at-law of M. M. Patton.

The defendants further admitted that M. M. Patton entered into possession of the land about the date of his deed, and continued (409) in possession from that time to the day of his death, which occurred on ________, 18__, and that his heirs, the plaintiffs, have been in possession at the same place ever since the last mentioned date to the bringing of this action.

The plaintiffs then introduced testimony tending to show that the defendants had obstructed the streets indicated in the deed. The defendants admitted that they had placed a gate and fence across the street, and also a gate and fence at another point, and that they had built a fence so as to take into the college lot the street there indicated, and to completely obstruct said street.

The defendants then introduced a deed from M. M. Patton to N. Bowen, chairman of the board of trustees of the college, dated 6 May, 1859, for the lot described on the map as college lot, and a deed from M. M. Patton to Joseph Jordan, described as the J. P. Jordan lot, dated 30 July, 1861, and a deed from N. Bowen to the defendant company, dated 7 February, 1876, for the college lot. The plaintiffs admitted that M. M. Patton never had possession of the college and Jordan lots after the date of his deeds to Bowen and Jordan. His deed to Bowen contained the following clause: "With the following reservation, that is to say, the said M. M. Patton reserves 33 feet for a street running from the cross street down L. Clayton's fence to J. P. Jordan's fence, thence up Jordan's fence to the street that leads down to M. M. Patton's house."

Patton's deed to Jordan contained the following clause: "And further, that the street now opened up through to the college land, thirty-three feet wide, shall be kept open." The defendants admitted that this street runs from the gate in the south line of the J. P. Jordan lot, as shown on the map, north.

The plaintiffs withdrew their claim to have the title declared to be in them of the said streets, and only insisted upon their right to have the gates and other obstructions removed from said street, (410) and for judgment for damages assessed by the jury.

The court, being of the opinion that the defendants had no right to erect gates and fences across said streets, gave judgment accordingly. Defendants excepted.

1. Because the reservations were for Patton's life only, and did not inure to the benefit of his heirs.

2. That, by the deeds, title to the soil passed to the defendants, and the reservations in the deeds gave to plaintiffs and those claiming under them only an easement, and that the defendants had the right to fence across the streets, so long as they kept a gate ten feet wide, through which plaintiffs might pass at pleasure. It was admitted that the plaintiffs could pass through gates from their house to K on the map, but the street from K to C was obstructed so they could not pass.

3. That Patton had not shown a possession sufficiently long to give him title to the land, taking the facts as admitted to be true, and that defendants were not estopped to deny his title by reason of their claim of title through him.

There was a judgment for the plaintiffs, from which the defendants appealed.

DAVIS, J., after stating the case:

It is conceded that the deed from King to M. M. Patton included the streets obstructed by the defendants, and the effect of the admission of the defendants in regard to the judgment is to present the single question, Did the defendants have the right to obstruct the streets in the manner set out?

The title being originally in M. M. Patton, through whom the plaintiffs claim, what was the effect of the reservation in the (411) deed from him to M. Bowen? Conceding, as insisted by the defendants, that the deed conveyed the title to the soil, and that the reservation was only of an easement, the title to it is in the plaintiffs, who have been in possession since the death of Patton. Merrimon v. Russell, 2 Jones Eq., 470; Hays v. Askew, 5 Jones, 63.

The reservation is not vague and uncertain, as was the case in Waugh v. Richardson, 8 Ired., 471, and McCormick v. Monroe, 1 Jones, 13, relied on by defendants. In those cases the exceptions in the deeds were held to be inoperative and void, because so vague and uncertain that no effect could be given to them.

The case of Fisher v. Mining Co., 97 N.C. 95, cited by counsel, has no application. In that case the plaintiffs failed to show title in themselves or in those through whom they claimed title to the excepted minerals.

In the case before us, it does appear that the title and rights to the easements reserved was in M. M. Patton, and in the plaintiffs who claim under him.

The plaintiffs abandoned all claim to title in the land, and only insist upon their right to the unobstructed use of the street reserved.

It is shown that there has been no abandonment or nonuser of the street, and there is no claim of title to the soil by length of possession or otherwise.

The plaintiffs have shown title to the easement reserved, and we think the obstructions admitted to have been made were invasions of their right. A street with gates or fences across it is not what was reserved, but a full and unobstructed "33 feet for a street."

Affirmed.

Cited: Ruffin v. R. R., 151 N.C. 335.

(412)