¶1(dissenting). The court below considered the provision in question a reservation rather than an exception. Thereupon it became necessary to determine the duration of the estate or rights reserved. This presented a question'not of the mere omission of words of inheritance in the reservation, but also of the legal effect of the affirmative words employed therein. The whole property is first granted. Then, “saving, excepting and reserving for himself, the grantor herein, all the timber now growing and standing, . . . with the right at all times to enter on the said premises to cut and haul the said timber away during the next forty years, but the grantor herein agrees to cut and haul away each year what is necessary for him for firewood,” etc. I think this was a reservation within the rule of cases cited in the majority opinion. The words “exception” and “reservation” represent incompatible •ideas in the law, and if both terms be employed to describe the same thing one or the other must yield. The same thing can*368not be at once an exception and a reservation. It seems to me that here both terms are employed to describe the same estate or right. No such estate or right in the timber as the grantor has by this provision existed prior to the conveyance in question. No such estate or right as the grantor by this provision has in the timber could therefore be created by mere exception from the grant. It is a new right, differing from his former estate or right not only in point of duration, but also with respect to his duty to cut and remove each year. Under the disposition of this case made by the majority, what has become of the right of the grantee to enforce annual removal? If this-is a reservation instead of an exception, and there is not only an absence of words of inheritance but words in the instrument as well as extrinsic facts tending to show that the reservation was personal to or during the life of the grantor, the court below was justified in holding that the rights therein reserved did not survive the grantor, and consequently the judgment below should be affirmed.
131 Wis. 361
Williams v. Jones
Decided April 9, 1907
Wisconsin Supreme Court · decided 1907-04-09
On May 12, 1900, Thomas Williams sold the defendant Thomas H. J ones a forty-acre tract of land, and gave a deed therefor containing the following clause: “The southeast quarter of the southeast quarter of section eighteen (18), town six (6) north, of range four (4) east of the fourth principal meridian, saving, excepting and reserving for himself, the grantor herein, all the timber now growing and standing on the south half of the said premises, with the right at all times…
Good law ✅— No negative treatment on recordhow we know
Reversed · Decided 1907-04-09
How this case has been cited
Cited by 9 later decisions — most recently October 1953
8 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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