Brossart v. Corlett, 27 Iowa 288

Brossart v. Corlett

27 Iowa 288 | Iowa | 1869

Lead Opinion

Wright, J.

1. basement:: extent of: construction, This case was decided right. The rule, we grant, is that an easement appurtenant to an estate is so to every part thereof, whatever the subdi- , , *1 r . „ vision at the time or subsequently. Jout it is just as true that the servient estate is not to be burdened to a greater extent than was contemplated at the time of the creation of the easement.

Construing these title papers in the light of the surrounding circumstances, remembering that a subsequent sale of a part of the dominant estate shall not, and cannot, operate to extend the original right, nor to increase the burden upon the servient estate, and looking at the very language of the reservation, we have no difficulty in settling the rights of these parties. If we add to these considerations, their acts extending from eight to seventeen years (this action was not commenced until in 1869), the correctness of the judgment below is greatly strengthened.

g __ ri„M of way' Plaintiff took title with the knowledge of defendant’s rights, or the rights of Yan Fleet, under whom he holds. By his deed he is permitted to make use of the right of way as reserved and described in the conveyance from Lyon to Yan Fleet. It is true that it speaks of a right of way to the east end of said lot (the lot conveyed to plaintiff), but as against defendant this is of no avail, unless the right reserved by Lyon extended so far. And any argument drawn from the claimed contemporaneous construction given by Lyon to his grant, and the extension of his reservation, by the language used in his deed to plaintiff, cannot avail against defendant or his grantors, for he was not a party to such deed. He holds adverse to and not under that conveyance. Not only so, but by his act and language he has always denied this construction. Now we must remember that when Lyon sold to Yan Fleet he owned all of the ground (84 feet) along the west boundary of the tract conveyed, *298extending to Clinton street in front. He thus had reserved, and as his own, a tract of 96 feet by 84, excepting the piece 23 feet 4 inches by 17 feet 3 inches in the N. W. corner, at that time held by plaintiff. He was about selling a parcel in the rear of this, which in the hands of another, without reservation, might be so occupied as to completely cut him off from any approach to that which he still held, from the rear or from Washington street. To prevent this was his object, and this is what the parties contemplated. The premises' to be reached were on lots 5 and 6. Not all of these lots, nor all of either. He owned parts of, but not equally in, each. Now he says: “I reserve aright of wa¶ to and fro through said premises (the servient estate) for wagons and foot passengers from Washington street to the eastern boundary of my premises.” Not to and along, but to my premises. When, by going through said servient estate, the eastern boxmdary of the dominant estate was reached, the language, the meaning, the object of the parties was met and accomplished. More than this could not be claimed. If more was intended, it could have been made clear by the words “ and along,” in addition to those employed. The omission is most significant; for, if the way was to extend along defendant’s whole western boundary, it is most singular that these words, so apt to express the intent, were not inserted. The language used is clear enough; that omitted makes it even more so.' But, if indefinite — -that is, if the reservation was ambiguous — it would be located so as to impose as little burden upon the servient estate as consistent with a fair use of the way (with possibly the right to locate it, in the first instance at least, in the servient owner), and this again would sustain defendant’s claim.

As already intimated, the argument that the language of plaintiff’s deed from Byon (“the right of way to the *299east end of said lot ”) is without meaning, unless his con-. struction is correct, is of no force, because defendant is no party to it and does not claim under it. But why is it not of use to him even though not extended as he now claims ? The right reserved in the Yan Fleet deed was to Lyon, his heirs and assigns, not to all persons. Plaintiff may have regarded the assignment or transfer of the right to him (locating the way as defendant does) as of vital importance, relying upon a right of way from necessity, from subsequent negotiation, if not from his deed, over and along Lyon’s land. But, however this may be, the right conferred is limited, and is referred specifically to, and dependent upon that reserved in the deed, under which defendant claims and upon which lie relies. And this, as ive have seen, extends to Lyon’s east boundary, and not to the east end of plaintiff’s lot.

Affirmed.

Dissenting Opinion

Dillon, Oh. L

(dissenting). — Giving effect to all the language of the reservation in the deed from Lyon to Yan Fleet, on which the whole case turns, and reading this language in the light of the surrounding circumstances, suchas the situation and character of the dominant and servient estates, the location of the way, the objects for which it was reserved, the acts of the parties, etc., I am of opinion that the way in controversy was intended for the benefit of all the remaining premises of Lyon, and extended along the whole eastern boundary thereof.

The language of the reservation is as follows: “ The said Lyon, reserving to himself, his heirs and assigns, the right of way to and fro, through said premises for wagons and foot passengers, from ~Wasliington street to the eastern boundary of his premises, situated on said lots 5 and 6, forever.” No other construction than the one I adopt gives full effect, as I think, to all the language used. The right *300reserved is u through the premises” (not through part of th'eín),“ to the eastern boundary of Lyon’s premises,” to the boundary (not to the southeast corner) “ situated on said ‘lots 5 and 6,” and not lot 6 alone, as the opinion of the court holds. If the way was to end at the southeast corner of one of the lots, how easy and how natural it would have been to say so. When we consider that the estate retained by Lyon was business property, with frontage enough for four stores, shallow in depth, that there was no alley in the block, the necessity for a rear approach to the stores, the probable division and sale of the property, the unreasonableness of supposing that Lyon intended to benefit one portion thereof more than another, the fact that the burden on the servient estate is not onerous, since such a way does not take the valuable portion of it and is quite as advantageous to it as the dominant estate, the language of the other deeds in evidence, it seems to be the better construction — though I admit that the question is not free from some doubt — to hold that the way reserved was for the benefit of the whole of Lyon’s premises, and extended along the whole of “ the eastern boundary” line thereof, and did not terminate at the southeast corner of one of the lots. This is not a case of an indefinite location of a way, in which case I admit the correctness of the rule contended for by the defendant. It is simply a question as to the extent of the way, and this depends upon the meaning of the written reservation, to be determined from the language used, when it is applied to the subject-matter of the grant and the reservation. I content myself with this brief indication of the ground work of my dissent, without undertaking to state or enforce at length the arguments by which it might be supported. I concur very generally in the views presented.in the printed argument of the appellant’s counsel. Affirmed.