The clause in the deed of 1847 by Curtis to the railroad company respecting a crossing, could not constitute an exception. The office of a provision of that description is to exclude from the grant and retain to the grantor some portion of his estate; whatever is thus excluded remaining in him as of his former right and title, because it is not granted. Chappell v. New York, N. H. H.R. Co.,62 Conn. 195, 207. A reservation, on the other hand, is a new creation of something not previously existing. Barnes v.Burt, 38 Conn. 541. The grantee under the deed was subjected by its terms to the duty of building a crossing over the proposed railroad, to be used "to pass to the back land with cart or otherwise." The railroad was yet to be constructed. Whatever was thus to be done was to be done as a new thing in the future, and the words in question therefore are to be construed as a reservation.
Whether a reservation without words of limitation inures to the benefit of successors in title, is to be determined from the language employed, read in the light of the surrounding circumstances. One material circumstance was the situation in which the construction of the railroad would leave the back *Page 193 lot. Would there be any other means of access to it than that over the strip of land granted? As bearing on this point, the defendant's exception is well taken to the refusal of the trial court to find that this northerly parcel was surrounded on all sides by lands of private owners, across which it had no appurtenant rights of way. The only evidence as to this, adduced by either party, was the three deeds to and from Curtis. These disclosed no rights of way, and none were to be presumed. No other conclusion could be legally drawn from them than that the back lot was left by the deed in an inaccessible condition, except so far as either the deed itself or the law provided otherwise. No harm, however, was done to the defendant by the refusal to find this fact. If a way of necessity existed in favor of the back lot, it ceased when the necessity ceased, and that was when Danforth Knowlton, in 1885, acquired title to the adjoining land to the northward, bounding on a highway.
But whether one ever existed or not, did not affect the duty of the railroad company under the deed. The terms of that instrument required of it the construction of a crossing for a single purpose, and that was to allow some one, not named, "to pass to the back land with cart or otherwise." This reference to the "back land" naturally imports that the reservation was for the benefit of the owner of both lots, to enable him to go from one part of his farm to another. It was not a way between the back lot and the highway that the parties had in mind, but one between the back lot and the front lot. So long as there was unity of ownership as respects these two parcels, such a way was reserved to the grantor and his heirs or assigns. To limit it to his life would not satisfy the obvious purpose of the conveyance. But when the title was severed by the conveyance of the front lot by Booth to Chambers in 1880, the obligation of the railroad company to permit the use of the crossing came to an end. The two lots were thenceforth held by different owners, and there could be no occasion to go as a matter of right from one to the other.
The adverse user by Booth and his assigns since 1880 is *Page 194 unimportant, as it was stopped by the act of the defendant which is complained of, before the lapse of fifteen years.
The Superior Court had the right to take judicial notice of the historic fact that the railroad between New Haven and New York was opened by January 1st, 1849. The opening of a trunk railroad for public use is one of those events of public notoriety which are to be taken as known by the courts because they are known to everybody. It is a great geographical change, like the bursting out of a new river from the earth, to serve as a highway of commerce in new directions. But the user of the crossing after that date down to 1880 could found no prescriptive right, since it was authorized by the Curtis deed.
The reference in the deed of July, 1893, from the plaintiff to the defendant, to "any right of way or farm crossing that may exist" in his favor over the railroad, did not estop the defendant from denying that there was any such a right. Not only is it spoken of merely as something that "may" exist, but this is coupled with the provision, equally operative in favor of both parties, that the "conveyance is not to affect any such rights."
It is urged that the trial court has found as a fact that the intent of the Curtis deed was to retain in him and his heirs and assigns a permanent right of way over the railroad as an appurtenance to the land on each side of the granted premises, and that such an inference of fact from other facts is not the subject of review on appeal. The judgment obtained by the plaintiff is finally rested by the finding in the alternative upon one or the other of two inconsistent grounds: either that the provision in the Curtis deed as to a crossing constituted an exception, or, if this be not so, that the plaintiff had a prescriptive title by adverse use. These are expressly stated to be conclusions of law, and the preliminary finding as to a right of way under the Curtis deed, appurtenant to the entire premises, while described as an inference of fact, is essentially one of law, for it must be read in connection with the final adjudication that this right is of the character of an exception. The terms of the deed are before us, and *Page 195 also the situation of the premises and the acts of the parties in the nature of a practical construction of the right reserved. The main question is as to the meaning of the words they used, and proceedings in error would often be but an illusory remedy, were an appellate court to be considered as bound, in determining such a question, by the opinion of the court below, whenever that is based in part on circumstances attending or following the transaction, notwithstanding these are fully spread upon the record. Whitman v. Winchester ArmsCo., 55 Conn. 247, 249; Nolan v. New York, N. H. H.R.Co., 70 id. 159, 174, 176.
There is error and the judgment is reversed.
In this opinion the other judges concurred.