145 Iowa 638 | Iowa | 1910
— In 1893 William Lyons, who was then the owner of the ten-acre tract of land situated in Lucas County to which this controversy relates, executed to defendant an instrument duly acknowledged and recorded, of which the following is the material portion:
Know all men by these presents: That we, Wm. Lyons and Cecelia Lyons, his wife, of the township of Whitbreast, -county of Lucas and state of Iowa, parties of the first part, for and in consideration of the sum of one hundred and fifty dollars, lawful money of the United States, to be paid by Michael Kenney, of the township of Whitbreast, county of Lucas and state of Iowa, party of the second part, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant and convey unto the said party of the second part, his executors, administrators and assigns, all timber and growth of timber on the north fourth ■ of the S. E. of the N. E. of Sec. 11, Twp. 72, R. 22 West, jvith privilege at all times to enter upon the above-described lands for the purpose of cutting, hauling timber therefrom. The said Wm. Lyons to make proper openings in his fence for the passage of teams to haul timber therefrom, and the
The plaintiff as the grantee of Lyons asks in this action that his title be quieted as to any remaining right which defendant may claim or assert under this instrument, and that it be canceled and defendant directed to execute his quitclaim deed; or, if the court concludes that defendant has not had a reasonable time to remove the timber from said land, and that he is entitled to further time to do so, then the court fix the time within which-defendant may remove said timber after which his rights under the instrument shall terminate. In his answer defendant alleges the circumstances under which the instrument was executed as tending to show a purpose on the part of defendant to acquire in perpetuity a right to take timber for fence post, firewood, and other uses from the land described, to be enjoyed by him in connection with the ownership of a farm not far distant, which right was also to be enjoyed by his executors, administrators, and assigns forever. Defendant also pleads a custom and usage of the neighborhood as to the meaning of the words “timber” and “growth of timber,” by which the latter term had the meaning of-the future growth of any 'and all timber on the land, and he alleges that there is now on the land a growth consisting of small trees, shrubs, and sprouts of no value for immediate removal, but which will mature into usable timber, The answer also contains allegations
„3. Same: con-ofa°timb[raale construction. It is clear that whatever right the defendant acquired in this land was irrevocable and was an interest in the land itself, and we have to determine from the language of the instrument the nature and extent of that right. If is plainly of the general nature Q£ an ¿asemen£? but differs from an easement in that it involves the right to appropriate and take away that which is a part of the land itself, the growing timber. Such a right is usually described as “profit' a prendre ” which term is used to include also such rights in regard to another’s land as that of cutting grass or pasturing cattle, of taking coal or mineral from the soil, of taking water that has been artificially accumulated or restrained so as
But some rights of easement and many rights of profit a prendre are of such character that they may be acquired and exercised in gross, and not merely as appurtenant. While language is to be found in some text-books and opinions of courts to'the effect that an easement in gross is a personal privilege not assignable or transmissible by inheritance, it will be found on examination that these expressions of opinion relate to particular kinds of easements which are in the nature of personal privileges only. See, for example, Boatman v. Lasley, 23 Ohio St. 614, involving a private right of way which the court held to be a personal privilege, and Cadwalader v. Bailey, 17 R. I. 495 (23 Atl. 20, 14 L. R. A. 300), where a restriction on building to obstruct a view of the sea from certain premises was held to be extinguished if severed from the premises for the benefit of which it was made. See, also, Wash-burn, Easements (3d Ed.) 10. In 2 Blackstone, Commentaries, 35, it is said that a right of way granted to a particular person not appurtenant dies with the person. But a right profit a prendre which involves the beneficial use by one person of the land of another to derive profit therefrom may in its very nature exist in gross, and not merely as appurtenant. One example of such a right is
There is no «foundation for the claim that a right to the perpetual use of water must be ■ dependfent on a particular estate with which it is connected. Some confusion has perhaps been caused by an attempt among writers to create symmetry in the law by putting all rights connected with lands or springing from them into classes-, and by speaking of these particular rights as easements, which very commonly require both a dominant and a servient estate. But every right of property must usually have some peculiar qualities of its own, which must not be destroyed by inappropriate attempts to classify it with different kinds. The old maxim, ‘Omnis definitio periculosa,’ is especially true when things of essentially different qualities are placed together under one head. The value of.water as a distinct inheritance, either for creating power or for other purposes of use or consumption, has been recognized in all periods, and its ownership is well established as not dependent on lands to which it may be appurtenant, but as having a separate and intrinsic importance. There may be an occasional dictum, and possibly .some decisions to the contrary; but most cases where any doubt seems raised on this question will be found to rest on peculiar facts which in no way involved the general doctrine. The facts are often such as to confine the use of water, not only to special places, but also to specified' purposes. But this limited use is the exception, and not the rule.
The decree of the trial court by which the right of defendant under this instrument is declared to be in effect only a personal privilege which must be exercised within a reasonable time fixed by the decree as two years from the date of its rendition is reversed, and the case is remanded to the lower court, with direction that plaintiff’s petition be dismissed, or the defendant at his election may have a decree to the same effect entered in this court.— Reversed.