102 Ky. 570 | Ky. Ct. App. | 1898
DELIVERED tiie? opinion of the court.’
It appears from the pleadings that at the beginning of 1886 William R. Brown and the Savings Bank of Louisville, were the joint owners in fee of a tract of some 156 acres in Jefferson county, west of Louisville, fronting on the Ohio river. The Savings Bank having assigned to Stephen f*.. Jones,’the property was divided into lots, as shown upon a plat on. file in the- case; and on February 25, 1886, Brown and wife, the Savings Bank amid the assignee conveyed in fee to John G-. Beinlein a lot numbered 9, which fronted on the Ohio river, and as this lot was completely cut off from any public road by the remaining lots composing the 156 acre tract and the land's of adjoining property ilioldiensi, the grantee, in common with the owners of lots Nos. 6 and 8 on the plat, was given an outlet or roadway thirty feet wide, running in a southerly direction from the comer of lot No. 9, and between lots 6 and 8, and called road A. The appellants are the widow and heirs of Bein-lein, who died in 1894.
On December 20, 1886, the same grantors conveyed to ap-pellee Ka'hlert about thirty-six acres, being part of lot No. 6 before referred to, the deed containing this recital, after referring to the Beinlein tract: “An outlet or passway thirty feet wide, leading from Bednlein’s northeast corner along the original Meriwether and Newman line * * * is reserved as an outlet for said Beinlein; also another outlet or passway thirty feet wide * * * is reserved as an outlet or passway for said Dienes and said Kahlert.”
It would seem that an agreement between the grantors •and Beinlein had been reached in regard to the latter’s outlet before the execution of this deed, for soon after its execution a deed was executed by Beinlein and wife to those grantors, reciting that the first parties, “for and in consideration of laying off and dedicating an avenue thirty feet wide from their northeast corner, along the original Meri-wether and Newman line (describing road B), as described in a deed from second parties to A. Kahlert, dated December, 1886, by these presents do relinquish, grant and convey to the said second parties all their interest, right and title in and to a. certain thirty-foot avenue (describing road A), said road or thirty foot avenue being included in the conveyance from said second parties to< said first party, as evidenced by deed recorded in deed book 290, page 108, this thirty-foot avenue being of no further use to said i’.einlein since the aibove-named avenue from Beinlein’s northeast coiner (road B) was laid out and dedicated t.o his use."’
On September 21, 1892, Kahlert sold to appellee Hiller-ich — the deed being executed to ilillerieh’s daughter, Mrs. Johns — the northern part of the lot purchased by him, along the northern edge of which ran road 13. Kahlert brought suit to enforce his lien for the note for the second deferred payment, and made the appellants parties defendant, stating that they claimed an interest iin the property and calling on them to set up what interest, if any, they had. Hillerich answrered, admitting the execution of the notes, stating
Appellants by an answer and amended answer, counterclaim and cross petition, allege the u'mcontroverted facts before recited, that their deed relinquishing their right of ■way over road A was executed for and in consideration that ¡Brown and Jones, as assignee, would lay off and dedicate road B, and that the latter parties did lay off and dedicate the said avenue thirty feet wide, but that Kahlert had conveyed a part of hite tract to Mrs. Johns, the daughter of Hillerich, ■ conveying by metes and bounds a tract embracing the thirty-foot right of way, and these facts are pleaded as an estoppel against the appellees. It was further alleged that Bei.nlein used and exercised and remained in the full enjoyment of the right of wav over road B, as appurtenant to his lot, until his death, but that the appellees were interfering with the use of such night, of way by the appellants.
A demurrer to the answer and cross petition was sustained, and a second amendment was filed, alleging, among other things, that ever since December, 20, 1886, the date of the deed to Kahlert, the appellants had an outlet and passage way over the lands of Kahlert (road B), and that they had not, at the time of the filing of this action, or before, an ■outlet or passage way over or through any other lands ad
A motion to strike out this second amendment was sustained upon the ground that the words “or before” were contradictory of the averments of thie original answer and the first amendment, which showed that they had once had an outlet via road A; and the court was of opinion that the remainder of the second amendment, after striking out these words, was demutrrable, and, therefore, that the motion to ■strike out the whole amendment should prevail.
• It is very earnestly insisted, and with'great showof authority, that an easement can not be created except by deed or by prescription, which presumes a deed; that Beinlein not having been a party to the deed relied on (the deed to Kahlert) could take no present interest under it; that a reservation in a deed can only be to the grantor, and not to a third person; that there were no words of limitation in the reservation in the Kahlert deed, and, therefore, it could not, even if otherwise valid, have given Beinlein right of way beyond, the term of his life, and that the statute of frauds applies to the creation of easements, and as Kahlert did not sign tha deed he is not bound by the reservation.
It may be admitted that, at common law, a reservation in; a deed “is always of a thing not in esse, but merely created or reserved out of the land or tenement demised (Co. Litt., 47a), and also that an easement being an interest in land, a parol ■ contract creating it is invalid under the statute of frauds unless such a part performance is shown as to take it out of the statute.” (Robinson v. Thraikill, 110 Ind., 117; Dillon v. Crook,, 11 Bush, 321; Barnes v. Beverly, 17 Ky. Law Rep., 586.)
But in tihis case we have an averment of an actual opening and dedication of the passway, an actual user thereof for some eight years, and an actual conveyance of a valuable easement in consideration of the night of way supposed to be thereby obtained. Admitting — although it seems to us the English, doctrine upon the subject is the more logical— that, the reservation, to be effective, could only be to the, grantor in the deed, nevertheless the reservation, though
Reservations of rights to open highways have been held valid, and to retain in the grantor the power to dedicate such ’highways to the public (Hart v. Conner, 25 Conn., 331; Dunn v. Sanford, 51 Conn., 443). And it has been held that the acceptance- of a deed containing a reservatioui in favor -of a third person will preclude the grantee’s, interfering with such third person’s exercise of the right, although the ■exception may not convey any right to the third person. ■(Hodge v. Boothby, 48 Me., 68). Moreover) in ome Kentucky case (Gibson v. Porter, 12 Ky. Law Rep., 917) the English doctrine appears to' be recognized that an easement may be created in favor of a stranger by reservation.
The remaining question necessary to the decision of this case is the contention that there being no words of limitation in the reservation, it could n!ot, even if otherwise valid, have given Beinlein a right extending beyond his lifetime.
■Assuming that the right does not depend upon the deed) to Kahlert, but upon the agreement averred between Brown et al., and Beinlein, it being undoubtedly a fact that the ease
.We concur in counsel's contention that the rule is that, iii order to give a right of way ex necessitate, the necessity therefor must exist at the time of the grant.
Judgment reversed and cause remanded for further proceedings consistent with this opinion.