87 Neb. 342 | Neb. | 1910
Lead Opinion
This is an action to enjoin the defendant from obstructing a right of way which the plaintiff asserts over the defendant’s real estate. The plaintiff prevailed, and the defendant appeals.
The plaintiff alleges in his petition that in 1902 one-Jam.es, the owner of the south 49 feet of lots 7 and 8 in block 45 in the village of Lexington, sold the south 2A¡¿ feet thereof to the defendant, subject to a contract between said parties which is set out at length in the petition. By its terms the north wall of a brick building upon, the tract conveyed by James became a party wall. The contract further provides: “That the said O. S. Kinney shall have the right to erect and maintain a coal shed, not exceeding six by six feet, on the east end of the tract owned by said James as aforesaid; and that the said James shall have the right of way of egress aud ingress, jointly with the said O. S. Kinney, over the east seven feet of the tract owned by said Kinney as aforesaid.” The parties further agree that the contract “shall remain in full force, and binding upon the parties hereto, and their successors in title, until * * * canceled or modified by mutual consent of such parties, or their successors, expressed in writing and duly signed and acknowledged as required by deeds to real estate.” The plaintiff further charges that he purchased the north fraction of the south 49 feet of said lots in 1906, and thereby succeeded to the easement vested in his grantor; that the defendant has converted said strip of land into a room for the manufacture of ice cream, and obstructs said path by maintaining thereon a gasoline engine, an ice cream freezer and other obstacles, so that it “has become useless
It is true, as suggested by counsel for the defendant, that no reference is made to appurtenances in the deed
The evidence and the law sustain the decree of the district court, and it is
Affirmed.
Dissenting Opinion
dissenting.
The real matter in dispute between these parties is whether the defendant must leave the whole 7 feet open for plaintiff’s “ingress and egress,” or may make such use of this part of his property as will not prevent plaintiff’s “ingress and egress.” This requires a construction of the contract as to what sort of ingress and egress was intended by the parties. The majority opinion does not discuss this question, and so the real controversy is ignored. By the- decree complained of “the defendant and all persons claiming under him be, and are hereby, perpetually enjoined from maintaining on said east 7 feet of said tract owned by him any obstruction or obstructions that will in any manner interfere with or prevent the plaintiff or his tenants from the use of the whole said 7 feet, * * * as a right of way.” Thus the contract is construed to mean that this 7-foot strip shall be devoted-wholly to ingress and egress by the respective parties, one party having no more right to this part of the real estate than the other, virtually making them owners and tenants in common of the said 7-foot strip. It is said there is no ambiguity in the contract. This is the clear and undoubted meaning. Nevertheless, it was said in the opinion that “the obstructions were in their present position at the time the plaintiff purchased his property and the evidence tends to prove that James made no complaint on that score.” In 1902 James was the owner of both
This action was begun on the 14th day of May, 1908. James sold this property to Kinney on the 2d day of February, 1902. For more than six years these parties have by their actions construed this contract to reserve to James and his grantees the right of ingress and egress, and nothing more. This I think was the necessary construction of the plain language. James built a hardware store on the tract retained by him soon after he sold to Kinney. By the terms of the contract the parties are to have equal joint right of ingress and egress, but they have no joint right in the property except the right to pass through it. Subject to this right to pass through the property, the land belongs to defendant, and he has all the beneficial interest and use of it that does not interfere with the plaintiff’s right of ingress and egress. Under this injunction he must remove the inclosure at the south end and keep everything off from this land, so that the plaintiff can not only have ingress and egress thereon, but can go over any part as he may desire. There must be nothing there, no use of the land, that will “in
It is not a question whether James or his grantees could oust the defendant “from his unlawful use of the way,” which seems to be the point decided in the opinion. The question is: What is the lawful use provided by the contract that the plaintiff and defendant are respectively authorized to make? It is said in the opinion that “the defendant admits the plaintiff stated his tenant complained and desired the way opened to which the defendant made no answer.” The record shows that the tenant himself was upon the witness-stand and stated under oath that he had never complained to the defendant in regard to obstructions in the right of way, and when questioned lie refused to say that he had any further use of a passageway on this land than was already accorded him. There is nothing in the contract from which to determine for what purpose it was intended the plaintiff should use this right of ingress and egress. The real intention and meaning of the contract therefore in this regard should be determined from the circumstances and the practical con struction, if any, that the parties put upon the contract by their conduct after it was entered into. In these respects the petition is deficient, and the evidence is not as satisfactory as it might be. In construing this contract to ascertain the real meaning of the parties thereto we must take into consideration the circumstances and conditions existing at that time and the practical construction that the parties have put upon the contract in the succeeding years. It was of course understood between the parties at that time what sort of business would be