120 Iowa 254 | Iowa | 1903
The forty acres were for many years unfenced and uncultivated. The south ten acres was sold to Davis. The west half of the remainder now beloiigs to the plaintiff. Between it and the highway is the other half, which is the property of the defendants. That the plaintiff was awarded the right of way across the -east fifteen acres in partition proceedings between himself and brother A. D. Dickinson in 1883 is not questioned. • That decree stipulated “that said O. B. Dickinson shall take, have, and hold the west half of the southeast of the northeast quarter of section five (5), township eighty-nine (89), range
Were defendants charged with constructive notice of the easement awarded in this decree? As contended, there were no deeds from the one tenant in common to the
II. Appellant insists, however, that the right of way has never been established, and, as more than ten years have elapsed since the right thereto accrued, this action
A careful examination of the record has convinced us that a well-defined road, referred to by the witness as the “ridge road,” passing through defendant’s land a little north of the middle of the forty to that of plaintiff, has existed and been used since 1865, and that it was practically the only track through the timber which could be traveled at all seasons of the year. For thirteen years previous to the partition proceedings, and during several years subsequent thereto, it was the one mainly traveled by the Dickinsons in hauling out wood — the only purpose for which they entered - upon the land. Near the south end was an irregular way, by which, when the ground was frozen or very dry, the neighbors often went over the land to that beyond, and at times plaintiff used it when he could reach the highway by going a shorter distance with his loads. Because of the swampy character of the ground, this was not ordinarily passable. There was also a track several rods north of the ridge road, which ran into it near the division line. And no doubt people generally drove over the land wherever they pleased, for it was never cultivated or fenced until purchased by the defendants. The particular road mentioned, however, was that ordinarily traveled by the Dick-insons, in using their wood lots both before and after the