21 S.D. 65 | S.D. | 1906
On this appeal by the defendants in an action to determine adverse claims to certain- real property in the city of Sioux Falls, there is no dispute about the facts as found by the court, and their sufficiency to sustain the conclusions of law and a judgment quieting fee-simple title in respondent, together with the right of exclusive possession, is all that is challenged by the assign
The property of respondent over and across which appellants claim an easement in the nature of a roadway right or public alley was once a part of the southwest quarter of section 16, township ioi north, of range 49 west, of the fifth principal meridian in Minnehaha county, and consists of city lots and certain contiguous tracts of land described ■ regularity or by metes and bounds in finding of fact No. 3, as follows: “The south half of lot four (4), all of lot five (5), and the north half of lot six (6) in block twenty-three (23) of J. L. Phillips’ addition to Sioux Falls, according- to the recorded plat thereof, and the tract of land adjoining said south half
In order to show upon what appellants’ claim of an easement or right of way over the property in controversy • is predicated, it will be necessary to notice certain reservations Contained in various deeds constituting respondent’s chain of title, the first of which was from one AVilley and his wife h> Ben J. Clark, dated December 5, 1885, and conveying “an undivided one-half of the south half of lot four (4), said lot five (5), and the north half of said lot six (6)” by warranty deed containing the following clause: “Except that the party of the first part reserves the right of a wagon road on the north nine (9) feet of the aforesaid lots to his lands in the rear of aforesaid lots; said wagon road to be open to the free use of both owners of the aforesaid lots and to the owners of the land in the rear of aforesaid lots.” On the 12th day of February, 1886, these same grantors conveyed to said Ben J. Clark their remaining “undivided one-half of the. south half of lot four (4), said lot five (5), and the north half of lot six (6),” by a deed containing the following reservation: “Reserving a wagon road nine (9) feet wide on the north side of said lots to' property of grantors in the rear; said road to be open to the free use of both parties.” On the 17th day of March, 1888, Ben J. Clark and Emily, his wife, conveyed the “south half of lot four (4), all of said lot five (5), and the north half of lot six (6),” to David F. AVyman by warran
That portion of respondent’s property adjoining the south half
As shown by the record and the accompanying plat, Warner E. Willey and Rozannah Willey owned all of tract A when they conveyed the south half of lot 4, lot 5, and the north half of lot 6 to" Len J. Clark, “reserving a wagon road nine feet wide on the north side of said lots h> property of grantors in the rear, said road to be open to the free use of both parties,” and their intention to limit such private right of way to the use of the immediate grantors and grantee is clearly apparent from the fact-.that tract A, retained by the Willeys, would be otherwise absolutely inaccessible. In the case of Burchard v. Wa-lther, 58 Neb., at page 542, 78 N. W., at page 1061, the court say: “A reservation in a deed must be to the grantor, or to one of them, where there are two or more; but an estate cannot be created in a stranger to a deed by a reservation or recital therein.” Through mesne conve3ances containing similar clauses, which were never intended to' enlarge or extend to strangers the private right originally created, respondent has become the owner of all the land to which the reservation ever extended, and appellants, whose property all fronts upon a public street, have no right to a driveway across liis premises.
Thus considered, in the light of- surrounding circumstances, and with reference to the situation of the respective pieces of land, the conclusion from the facts found is irresistible that the various grantors never intended to- reserve a driveway for the benefit of property other than their own, and the judgment appealed from is affirmed..