22 Iowa 160 | Iowa | 1867
The defendant introduced a warrantee deed of the same date from Jonathan Houpes, conveying to him certain premises, and also the right of way for a road one rod. wide, running through the above described tract and intersecting with a public road. Defendant also introduced in evidence a quitclaim deed from the plaintiff to Jonathan IToupes, dated June 27th, 1863, conveying the same premises and the same right of way. Defendant also introduced in evidence a written notice to plaintiff to remove said gates erected across the right of way own-''1
The soundness of this instruction, under the facts stated, is controverted. It is claimed that the right of way granted was absolute and unconditional, that, as such, it could not be interrupted by fences or gates, unless the right to do so had been reserved. ^Whether the grant or pSntract securing the right of way is of the character suggested in argument, we have no means of determining, as the same has. not been sent up with the record or otherwise shown in the evidence before us. We do learn, however, from the defendant’s answer, that the right of way, by the contract, ran angling jjhrough the eighty acre lot, and not along one of its. boundary lines. It is not therefore probable that it was within the contemplation of the contracting parties, that the same was to be fenced
Without knowing more of the terms of the contract granting the right of way, we are unprepared to hold that the erection of gates across the same is inconsistent with a reasonable use thereof by the defendant. It amounts to no other obstruction than the slight inconvenience of opening and closing the gates at the line of ingress and egress. The charge of the court above complained of, so for as we are advised by the record, expresses the law of the case, and the same is
Affirmed.