37 Iowa 602 | Iowa | 1873
The records show that prior to March 10, 1870, the plaintiff and the defendant were owners of adjoining farms. There was a public road along the east line of plaintiff ’s farm. The farm of the defendant was west of that of the plaintiff. The defendant had no road or way from his farm to the highway, the farm of the plaintiff lying immediately between defendant’s farm and the highway. On the day above mentioned the parties made and entered into the following agreement in writing, viz.:
“ This agreement made the 14th day of March, A. D. 1870, between Erick Amondson, of Paint Creek township, county of Allamakee, and State of Iowa, and Ole Severson, of said township, county and State: "Witnesseth, That whereas the said Erick Amondson is the owner of the west one-half of the west one-half of section No. four (4), township No. ninety-
“ In witness whereof, etc.
“Eriok Amondson.
“ Ole Severson.”
The parties on the trial stipulated that the plaintiff’s land at the time of making the above agreement was and still is inclosed and improved agricultural lands; that the plaintiff erected agate at the east end of the right of way granted to the defendant at road No. 201; that said gate was a suitable and convenient one; that when the same was left open the plaintiff’s inclosed fields were exposed and will remain exposed unless said gate is shut, or unless the plaintiff shall erect a fence along on each side of the right of way granted to the defendant. It was further stipulated that the question to be submitted to the court is whether the defendant is required to close the gate in question at the east end of the right of way as he passes through the same, and is not entitled to an open way; and if the court so finds, judgment to be entered.for plaintiff for one dollar and costs, but if the court finds that defendant is entitled to an open way and not required to shut said gate, then judgment to be entered for defendant for costs.
The court below was of opinion that the defendant was not entitled to an open road across the premises of the plaintiff, and was required to close the gate in question when passing through the same, and rendered judgment accordingly.
The doctrine is well settled upon authority that the facilities for passage where a private right of way exists are to be regulated by the nature of the case and the circumstances of the time and place. Cowling v. Higinson, 4 Mees. & Wels. 245 ; Hemphill v. The City of Boston, 8 Cush. 195. It is of course competent for the parties to regulate the facilities as well as the right of passage by contract, but where contract creates the right and is silent as to the facilities of passage, all of the cir
The easement granted to the defendant by the contract above set out is a right of way — a right of passage without defining the manner of its enjoyment, whether with or without gate or bars at the place where it intersects the public highway. Nothing passes as an incident to such a grant but what is requisite to its fair and reasonable enjoyment. The fee of the land still remains in the grantor, the plaintiff, and he may use the same and appropriate it to such purposes as he pleases, consistent with the defendant’s right of passage to and fro. This right of passage is all that is granted or stipulated for in connection with this way, in favor of defendant. The defendant claims that he is entitled to an open road through the farm of plaintiff to the public highway. His claim amounts to this : that the lands of the plaintiff shall be thrown open, exposed to cattle running at large on the public highway, or that he shall be required to erect a fence on each side the whole length of the right of way, leaving the entrance open at the east end. The first proposition would deprive the plaintiff of the use of his lands for cultivation, while the second would entail upon him an expense in building and maintaining fences almost as damaging in its consequences. To admit the claim of the defendant is unreasonable and contrary to established principles. The defendant, in his contract with the plaintiff, has not stipulated for such sacrifices on the part of the plaintiff. By the agreement he is entitled to a right of way across the plaintiff’s farm; with this grant passes only what is necessary to the fair and reasonable use of the easement.
The right of passage granted cannot fairly or reasonably extend to the destruction of plaintiff’s farm for agricultural purposes, or compel him to incur the expense of erecting and forever maintaining a fence on each side of the way through his farm. This is a burden not provided for in the contract.
It is urged, however, by counsel for appellant, that since the plaintiff had it stipulated in the contract that defendant should erect a gate at the west end of the right of way, therefore, no
The judgment of the court below will be
Affirmed.