190 N.W. 881 | S.D. | 1922
Plaintiff and defendants are owners of adjoining lots in a certain block in the city of Mitchell. Plaintiff occupies lot No. 3; defendants occupy lot No. 2. As the block is platted and laid out, there is. no alley at the rear of these lots, and no way of driving into the rear of them, except over the lot from the front or across, the rear end of the outer lots from1 the side street.
On and after the 23d day of March, 1883, one George' A. Johnson was . the owner of lots 1, 2, 3, and' 4 of said block. In October, 1886, said Johnson sold lots 3 and 4 to. Corrilda J. Hat-ton. The deed conveying these lots contains the following clause:
*91 “And a license is hereby granted to said Corrilda J. Hatton, to use as a way, or alley, io feet in width of the north ends of lots i and 2, * * * the same to be kept open as a private highway.”
In June, 1891, said Hatton conveyed lots 3 and 4 to James H. Sherill 'by deed which contains the following clause:
“A license is hereby granted to the said James H. Sherrill to use as a right of way or alley, 10 feet in width off the north end of lots 1 and 2, * * * the same to be kept open as a private highway.”
No mention is made of this license in- any subsequent conveyance. In June, 1888, the said Johnson. conveyed lot 2 to Phoebe S. Helwig, by deed which contains the following reservation:
“Except right of way, 10 feet wide, across north end.”
In October, 1899, Helwig conveyed lot 2 to Ellen M. Gregory, one of the defendants in this action, who is still owner and occupant thereof. This deed was filed! for record on the 16th day of October, 1899, and on the same date a deed was filed for record whereby the said Johnson conveyed to the city of Mitchell a right of way for an alley, 10 feet wide across the rear end of lot 1. During all the time from1 the month of March, 1883, to October, 1913, a driveway was kept open across the rear end of lots 1, 2, 3, and 4, and was used for that purpose by every -one who had occasion to- use it. In October, 1913, the defendants proceeded to construct a garage in this driveway, on the rear end ■of lot 2. Plaintiff protested' against the obstruction to the driveway, but to no purpose, and this action was brought'to have the said driveway declared a public highway and to compel the defendants to remove the said obstruction. In. addition to the above facts, the court found that the use of the said1 driveway by the plaintiff was necessary to her use and enjoyhient of lot 2, and -entered judgment whereby it is declared that plaintiff has an easement in the said driveway across the rear end of lot 2, and that defendants had no title or right therein adverse to. plaintiff and ordered defendant to remove the said obstruction. From this judgment, defendants appeal.
It is the contention of appellants that plaintiff has a means of reaching the rear of her lot from- the street at the front, that no
“It is a familiar rule that no particular form of dedication is necessary, and that any act clearfy indicating the intention of the owner to set apart lands for the use of the public as a highway constitutes a sufficient dedication. It is also- a familiar rule-that a mere dedication of land to such use will not constitute a public highway; that, in addition thereto', there must be an acceptance of the highway by the public, and the acts necessary to-show such acceptance are not -much more definitely defined than
The judgment and' order appealed from are affirmed.
Note — Reported in 190 N. W. 881. See American Key-Numbered Digest, (1) Easements, Key-No. 12(2), 19 C. J. Secs. 13 and 91; (2) Dedication, Key-No. 20(5), 37, 18 C. J. Secs. 35, 42, 73;. implied acceptance and user, 8 R. C. L. 900.
On right of grantee to claim an easement as against the grantor by a clause in the deed for a street or alley in which the grantor owns the fee, see note 14 L. R. A. (N. S.) 878.