221 S.W. 265 | Tex. Comm'n App. | 1920
The plaintiff, Arden, on January 29, 1913, conveyed to the defendant,
“It is understood and agreed, as a part of the consideration for this land, that the said O. A. Boone, his heirs and assigns, are to keep open for a permanent roadway 15 feet wide on the extreme east of said 100-acre tract hereby conveyed, so that said J. O. Arden and his assigns may have access to the public road from the land on the north of said 100-acre tract.”
The 15-foot strip described was at the time of the execution of the deed, and for many years prior thereto, used as a passway, with gates at the northern and southern extremities thereof. Plaintiff continued to use the passway with gates until June 17, 1915, when he filed this suit in the nature of an action for specific performance to require the defendant to remove the gates and to “keep said roadway open and unobstructed at all times in the future.”
The case was submitted to the jury on special issues, the issues submitted and the answers thereto being as follows:
“(1) Did the defendant, Boone, or his agent, Eddleman, know of the condition in the deed that provided for an open road on the land in controversy at the time of the execution or delivery of the deed? A. No.
“(2) Did the deed from Arden to Boone express the understanding and agreement, of the parties with reference to the road or passway over the strip of land in controversy? A. No.
“(3) Was it the intention and understanding between the parties at the time of the execution of the deed, or at the time of making the contract, that the 15 feet of land in controversy was to be for an open road, or was it to be a passway with gates? A. Passway with gates.”
Upon these answers the trial court rendered judgment for defendant, which was affirmed by the Court of Civil Appeals. 187 S. W. 995.
The sole question for determination is: Docs the provision in the deed above quoted 'entitle the plaintiff to a roadway unobstructed by gates? If so, the judgment should be reversed. If not, the judgment should be affirmed.
“Whether the grantee of a right of way is entitled to a way unobstructed by gates or bars depends upon the terms of the grant, the provision for which it was made, the nature and situation of the property, and the manner in which it has been used.”
One of the accepted definitions of “keep” is: “To maintain; to cause to continue without essential change of condition.” The term “to keep open,” we think, was used in this sense in the reservation under consideration. Collins v. Degler, 74 W. Va. 455, 82 S. E. 265; Garland v. Furber, 47 N. H. 301; Frazier v. Myers, 132 Ind. 71, 31 N. E. 536; Methodist Protestant Church v. Laws, 4 O. C. D. 562, 48 L. R. A. (N. S.) 87, Note.
We are of opinion that the judgment of the Court of Civil Appeals and that of the trial court should be affirmed.
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