Definition
Reserving is the present participle of "to reserve" — the act of holding back, retaining, or setting aside a right, power, interest, or question from an otherwise broader transfer, disposition, or determination. It appears in legal texts as an active process rather than a completed state, and its meaning shifts substantially depending on context.
1. In property law: The act by a grantor of holding back a right or interest from land being conveyed. A deed "reserving a right of way" retains that easement or interest for the grantor rather than passing it to the grantee. This is the creation mechanism behind a reservation in a deed.
2. In contract and auction law: The act of maintaining a minimum condition or threshold before a transaction becomes binding. An auction "reserving" a minimum bid means the seller retains the right to refuse inadequate offers — the foundation of the "with reserve" auction structure.
3. In procedural and judicial contexts: A court or judge "reserving" a question, ruling, or judgment means deferring a decision rather than disposing of it immediately. The Rapalje & Lawrence source material reflects this usage — a judge reserving judgment after trial, with authority to direct that no judgment be entered until a subsequent order. This procedural sense is common in older practice and continues in appellate and trial courts today.
4. In constitutional law: The concept of "reserving" powers to the states or the people, as expressed in the Tenth Amendment. Here "reserving" describes what was not delegated to the federal government — powers withheld from the constitutional grant.
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Common Language
Modern common usage (Wiktionary): Present participle and gerund of "reserve" — holding something back for future or special use (reserving a table, reserving judgment, reserving the right to object).
Historical common usage (Webster's 1913): To keep back; to retain; to hold over to a future time; to keep in store for some purpose.
The ordinary sense of holding something back is close to the legal sense, but the legal usage carries structural consequences that the common meaning does not. In property law, reserving an interest in a deed is not merely setting something aside informally — it is a formal legal act that creates or preserves a real property right enforceable against successors in title. In procedural law, a judge reserving a ruling is not simply postponing a decision; it invokes specific procedural rules governing when and how judgment may subsequently be entered.
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Common Confusion
Reserving is frequently confused with excepting in deed construction. An exception removes something from the grant entirely — the thing excepted was never conveyed. A reservation creates or retains a new right in favor of the grantor — typically an easement or similar interest. The distinction matters because the chain of title, the nature of the interest, and the rules governing its duration or transfer differ. Older deeds often used the terms interchangeably, and courts have sometimes treated them as equivalent; researchers should not assume uniformity across jurisdictions or time periods.
Reserving a question (procedural) should not be confused with withdrawing a question or deciding it sub silentio. A reserved question is live and awaiting resolution.
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Why It Matters in Research
The participial form "reserving" flags an active transaction in progress and appears as a drafting word in instruments rather than as a standalone defined term. Researchers working with historical deeds, pleadings, or court orders will encounter it as part of operative language rather than as a headword — which means index and digest searches may underperform. Look for it embedded in granting clauses, judgment entries, and constitutional commentary.
The procedural sense is particularly prone to misreading in historical sources. Rapalje & Lawrence's entry context — where a judge reserves judgment after trial and may later direct entry or denial of judgment — reflects nineteenth-century nisi prius practice. Modern procedure has formalized these mechanics in rules of civil procedure, but the underlying concept is continuous. Researchers tracing the history of reserved judgments or directed verdicts should be alert to the older participial usage as a term of art in trial records.
In property research, the shift from "reserving" language in older instruments to more precise modern drafting means that the legal effect of a historical reservation may need to be construed under the law of the period of conveyance, not modern doctrine. The question of whether a grantor could reserve an easement in favor of a third party (rather than themselves) was contested and resolved differently across jurisdictions and eras.
In constitutional research, "reserving" as used in Tenth Amendment doctrine carries significant interpretive weight — what was reserved versus what was delegated is the central analytical question of federalism disputes.
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Historical Dictionary Support
Rapalje & Lawrence address "reserving" in the context of judicial practice at trial, specifically the mechanism by which a judge defers entry of judgment following a verdict or findings. The passage describes a judge reserving authority to later set aside, vary, or decline to enter judgment — with or without leave to the parties to move. This reflects the reserved case and reserved point practice familiar to common law courts, where a legal question arising at trial was held for deliberate post-trial resolution rather than ruled on immediately.
The dictionary entry does not address the property or constitutional senses, which are treated elsewhere in nineteenth-century legal literature under "reservation" as the nominal form. This gap is typical: historical legal dictionaries often indexed the noun form (reservation) as the substantive entry while leaving the participial form to context. Researchers should cross-reference reservation entries in Black's and Bouvier's for the property and constitutional dimensions not covered by Rapalje & Lawrence's procedural focus.
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Jurisdictional Note
In property law, the rule that a grantor cannot reserve an easement in favor of a stranger to the deed was the traditional common law position but has been modified by statute or rejected by courts in a number of American jurisdictions. Researchers should not assume the traditional rule applies in modern transactions without checking current state authority.
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Encyclopedia Cross-Reference
Easements — Creation by Express Grant or Reservation (The Law Mind Property Law Encyclopedia)
Contracts — Auctions (With and Without Reserve) (The Law Mind Contracts & Commercial Law Encyclopedia)
The Tenth Amendment — Reserved Powers and State Sovereignty (The Law Mind Constitutional Law Encyclopedia)
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