I dissent. I cannot adopt the construction placed upon the instrument which is set forth in the early part of the majority opinion. To me it appears to create a mere license. As a background upon which to consider specific parts of the paper, it is to be observed that in phraseology and structure it is of the most informal character. It has none of the technical marks of a formal grant, but appears as a mere letter from one person to another. It evidently was not drawn by one accustomed to the terminology of conveyancing, and the language employed in it is therefore not necessarily to be given a technical meaning.
Viewing from this standpoint the letter which one of the parties handed to the other, the construction which by the majority opinion is placed upon the word "grant" is to my mind unwarranted. In my opinion, fitting the word to the context of the instrument and viewing it as part of a paper loosely drawn by a layman, it imports no more than the word "allow," the phrase in which it is employed then in effect reading "hereby allow the privilege."
In my opinion the phrase "his heirs or assigns" need not be given the force ascribed to it in the majority opinion. It is quite proper to assume that the writer and the addressee of the letter had no knowledge of the technical meaning of that collocation of words when employed in such a paper as the one before us, and, considering the instrument as a whole, it seems to me that the words mentioned may be disregarded as surplusage, this upon the assumption that they are in strictness to be taken as meaning what my associates *Page 571 assert that they mean. But is that meaning necessarily, or is it even properly, to be attributed to them? Authorities are cited to the effect that a license is not assignable and that an attempt to assign one operates as a termination of it. I doubt if these cases can be taken to import that one may notexpressly create a license in such manner that it may pass to successive persons. Suppose that the privilege here in question had its origin in parol. Suppose that at the moment of its creation Anita Piper knew that Moffit expected soon to make conveyance of his property to A, and suppose that the then existent fact was that Moffit was in ill health. Suppose, further, that at the moment, of its creation there were present Anita Piper, Moffit, A, and Moffit's sole heir, B. Suppose that, in creating the right, Anita Piper had said, "Moffit, you may have the right temporarily to pass over a ten-foot strip of my land," describing it, "and as I know that you intend soon to convey your land to A and that you are in ill health and may not survive until the conveyance is made, the privilege which I now allow you may be exercised by either A or B, as owners after you of the land you now possess, until I shall see fit to revoke it." Taking the letter now present as a whole, is it not just to assume that Anita Piper, using the words "heirs or assigns" without a knowledge of the refined legal distinctions between licenses and easements, intended exactly what we have supposed her to say in her imagined oral statement? In construing the paper before us we endeavor to ascertain the intention of the writer and the addressee, of course. In endeavoring to fathom the meaning of the phrase "heirs or assigns" it must distinctly be borne in mind that we are not concerned with the question whether a license can actually be created so as to be enjoyed by successive persons, but whether the writer and addressee of the letter attempted so to create one. If that was their intention, the thing not being legally possible, the words "heirs or assigns" would be pure surplusage for that reason and either a license would be created in Moffit alone, or the instrument would be wholly ineffective. My view is that the employment of the words, considering the instrument as a whole and endeavoring to harmonize its various parts, is far from making it necessary to determine that the paper does not create a mere license. *Page 572
I am of the opinion that the reasoning of my associates upon the clause "until such time as the extension of Alta Vista St. is completed" is not justified. The event thus specified was beyond the control of the parties and may never happen, even in the estimation of any person. Not only so, but the language employed is so uncertain that it cannot even be asserted in the future by any person with certainty that it has happened. When can it be said that the "extension" is "completed."? If the strip of land over which the street may be expected to be laid out is condemned under the right of eminent domain, will the extension be completed without the removal of fences or other artificial barriers which may forbid its use? If it be condemned and artificial barriers be removed, but the natural surface of the ground is such, because of ditches or ravines, that the strip condemned is impassable, will the extension then be completed? It may be responded to these questions that an extension of the street contemplates the opening of a passable thoroughfare, for the reason that the temporary roadway provided for in the instrument before the court was allowed by Anita Piper across her land for the purpose of affording a practical means of egress from the westerly half of the lot. I am not satisfied that this answer disposes of the questions, but if it be granted that it does, we are not yet freed from difficulty. Suppose that, irrespective of the character of the ground and of the presence of artificial obstructions, a strip but ten feet wide be condemned as an extension of the street; will the clause then be satisfied? How wide is Alta Vista Street where it now exists? Nor is the expression "past the west 1/2 of said lot G" free from doubt. Suppose a condemnation of a strip of whatever width, suppose a removal of barriers, both natural and artificial, "past" the front of lot G and to the farthest side line of the lot or a few feet beyond, but not to an intersecting road or street, will the extension then be completed? It is to be observed, in clarifying this question, that if the street is expected to be extended toward the east, a feature of the situation as to which we are not informed, and it be thus extended to but a foot "past" the east line of the west half of lot G, it will form a cul-de-sac, with its terminus 299 feet short of Magnolia Avenue, for the roadway along the southerly *Page 573 side of Anita Piper's property is 300 feet long. Such a completion of the extension will not enable the owners of the west half of lot G to reach Magnolia Avenue over Alta Vista Street, a thing which they may now do over the temporary roadway, but it will satisfy the letter of the call for an extension "past" the west half of the lot. Not only do these questions and remarks indicate the informal character of the letter now present for the purposes of construction, but they tend to show that the portions of it to which the queries relate are meaningless. Nevertheless, my associates see in the part of the paper in question a strong circumstance upon which to meet appellant's argument as to the effect of the word "temporary." The avowed and indubitable result of this view is, of course, that if the extension is never completed, construing the clause as any person whatever may construe it, the easement granted subsists forever, or at least until it is destroyed by grant. Verily, Anita Piper is thus put under too heavy punishment for failing to employ counsel properly to express her intention toward Moffit, his heirs and assigns. In my opinion the only satisfactory view to be taken of the portions of the paper now under scrutiny is that Anita Piper is to determine not only how long the completion of the extension of Alta Vista Street is to be awaited, but when the extension has been made, and in either event to terminate the privilege allowed by her letter. Of course, if she can terminate it then she can do so at any time, and it is but a license.
I have reserved for final treatment the fact that the word "temporary" occurs in the writing. If the views above expressed are justified upon a consideration of the informal context of the instrument as a whole, with which theory I commenced, they are positively required by the employment in it of the word temporary, and with this theory I close. Whatever judicial acumen may discover in other members of the writing, it was drawn by lay people, and their assertion that the privilege allowed by the paper was to be temporary is the one outstanding special feature of it. They had no knowledge of the technical meaning of the word "grant"; they had no understanding of the technical bearing which might be discovered in the words "heirs or assigns," when used in a paper designed, as it appears to me this one was *Page 574 designed, to allow a fleeting privilege to pass along a strip of real property, but they did know the meaning of the word "temporary." Notwithstanding these facts, the majority opinion in effect expunges the latter word from the instrument. I cannot agree with my associates in the assertion that the word is elastic and indefinite. Certainly, it is the direct opposite of the word "permanent," which has by the majority opinion been inserted in its place. The factor of the paper which was to the parties undoubtedly the most important has now vanished into thin air. There is in my opinion no warrant for this feat of judicial legerdemain. All factors in the writing which might by close reasoning upon legal principles be discovered to convey any idea that the privilege was not to be evanescent should be so resolved, if possible, as to make them bend to the word "temporary." That they can be so resolved it has been the purpose of this dissent to show. The instrument before us, drawn by a lay hand, should receive, if possible, a lay construction. It is only upon such a construction that we may place ourselves in the position of the parties to the paper, and before we can determine what they meant we must sit where they sat and see what they saw. Even with the aid of the able opinion which is before me, I cannot bring myself to the view that Anita Piper intended to create or that Moffit understood that she was creating a right which might place the use of part of her property beyond her control forever.
The judgment should be reversed.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 3, 1924.
All the Justices concurred. *Page 575