dissenting:
I am unable to concur in the opinion of the court- in this case. In my judgment the decision overturns a long-established and important canon of construction in the law of conveyancing in this Commonwealth, the tendency of which is to create confusion and unsettle titles to real property.
The undisputed facts are that prior to, and at the date of, the deed from Rhodes and wife to Mitchell, the plot of ground in dispute was used as a place of burial; that it “was fenced in, and cedar and other trees were growing on it;” that there was also a dividing fence separating the half of the lot set apart for the interment of members of the family from the servants’ half, *240and that Mr. Rhodes would not and did not sell the plot. This evidence repels the theory that Rhodes intended to create a new right in the nature of an easement in the grantee in the lot, and, unaided by extraneous evidence, the language of the stipulation quoted in the opinion does not admit of that construction.
The authorities agree that though .the distinction between the legal import of the terms “exception” and “reservation” in conveyancing is well understood, the words are not infrequently used indiscriminately. 2 Devlin on Real Estate (3d Ed.), sec. 980.
Professor Minor in his work on Real Property, observes: “In England the terms ‘reservation’ and ‘exception’ are separate and distinct in meaning, the term ‘reservation’ being applied to provisions in a conveyance which call for the return to the grantor of some profit or issue in future out of the land conveyed, as a part .of the future crops grown on the land, or a money rent, etc.; . . . while the term ‘exception’ applies to those provisions which except from the operation of the conveyance certain parts (already existent) of the thing conveyed, which without such exception would pass under the general terms of the, conveyance. . . . But in the United States very generally, the logical and historical significance of these terms has been lost sight of, and they are used almost interchangeably, or, rather, the courts, without regard to the particular terms used in the conveyance, construe the language as an exception or reservation, according to the character of the right intended to be created thereby—as a ‘reservation,’ if the right should properly arise by reservation, and as an ‘exception’ if that be the proper means of creating the right intended.” See authorities cited in n. 3.
The rule and distinction are clearly stated in 2 Devlin on Real Estate, secs. 919, 980. So, also, Bouvier’s Law Dictionary defines “exception” as “The exclusion of something from the effect or operation of the deed or contract which would *241otherwise he included.” On the other hand, “reservation” is defined as “That part of a deed or instrument which reserves a thing not in esse at the time of the grant, hut newly created.”
These authorities lead to the conclusion that the language of the clause, upon the correct interpretation of which this case rests, creates an exception and not a reservation, and vests no interest, present or future, in the lot in controversy in Mitchell and those claiming under him.
Affirmed.