85 Iowa 137 | Iowa | 1892
The evidence in this case discloses the following facts: Sophia Shaw, the ancestor of the appellees, on April 17, 1873, conveyed to the plaintiff a lot twenty-three feet front by eighty feet deep in the city of Maquolreta. At the same time, she entered into-a written agreement with the plaintiff, granting him the free use for the purpose of a private alley, of a strip-of land seven feet in width from east to west by twenty-three feet in length from north to south, and lying-west of and adjoining the lot sold him; said land to be used in connection with five feet of his own lot. This-alley extended, as it appears, over Mrs. Shaw’s land, in the rear of the other lots, onto Pleasant street. The-, plaintiff used the alley without interference or dispute until 1881, when Sophia Shaw sold to C. M. Sanborn the corner lot, and he erected a permanent building thereon, entirely shutting up the end of said alley on-
In June, 1881, the plaintiff brought suit against-Sophia Shaw, and in his petition set out the purchase' of the lot; the granting of the alley furnishing passage way to Pleasant street; averring the performance of all the conditions agreed to by him in said written contract granting said alley; averring the sale by Sophia Shaw to Sanborn of a part of said alley, extending' north from Pleasant street to the north line of the-premises owned and occupied by Sanborn; that Sanborn had begun the erection of a brick dwelling-thereon, had shut up said .alley, thereby cutting the-plaintiff off from all means of passing from Pleasant street or any other public street to the rear of his premises except by passing over adjacent land of Mrs. Shaw; and that she, by her said acts, had rendered the grant of the alley made to him useless. The petition also-averred that the plaintiff had suffered great loss and damage in depreciation of the actual and rental value of his premises. He prayed that Sanborn’s-building might be abated as a nuisance, or that Mrs. Shaw might be ordered by the court to fix and establish for the plaintiff’s use a new, suitable, and sufficient, way or means of access across her adjoining land from Pleasant street to the west or rear end of his premises, and demanded judgment for two thousand dollars damages. Some other allegations were made, which, in-view of the evidence in this ease, need not be stated. The defendant Sophia Shaw answered the petition, admitting the plaintiff’s purchase of his lot, and the-execution of the deed therefor; also admitting the execution of the written agreement, the making deed to Sanborn, and his erection of a building; averring that the plaintiff had forfeited his rights under the grant of the alley by failing to perform certain conditions, not necessary to be stated here. The plaintiff filed a reply
In 1887, Mrs. Shaw died intestate, and the defendants are her children and heirs-at-law. Austin F. Shaw died during the pendency of the present suit, and the other defendants, prior to his death, acquired his interest in the real estate in controversy. In 1889, the defendants, being the owners of the land lying west of Sanborn, the plaintiff, and others, laid out a public alley sixteen feet wide, running to the rear of the plaintiff’s lot, but with a strip of land thirty-three feet wide, between this new alley and the private alley granted to plaintiff. Thus this new alley left about thirty-three feet of ground back 'of the plaintiff’s lot and the adjoining lots, and lying between the new and old alleys. The portion of this strip of thirty-three feet lying, in the rear of other lot owners was sold by the defendants to such lot owners, thereby extending their lots back to the new alley, they paying therefor from thirty-five dollars to fifty-five dollars each, but a much larger sum was asked the plaintiff. ,
The defendants began preparations to erect a building on the thirty-three feet in the rear of the plaintiff’s building, and between it and the new alley, and on September 4, 1889, the plaintiff began this suit, alleging the 'agreement of Mrs. Shaw to give him the private alley; the location and situation of his property with relation to the old alley and the adjacent streets; the representations of Mrs. Shaw, made to him at the time he purchased his lot, that she had laid out and dedicated an alley in the rear of all the lots adjacent to him, and reaching to Pleasant street; the written
I. The question for our determination is, were the matters pleaded in this action by the plaintiff
II. It is contended that this is'a case where the damages are continuing, and that successive suits may be brought; that the plaintiff’s rights are
Our view of the case renders it unnecessary to discuss other questions raised. The decree of the district COUrt ÍS AEEIEMED.