62 Iowa 508 | Iowa | 1883
The petition states that the plaintiff was the owner of certain described real estate. That the defendant was also the owner of certain other real estate, which, or a portion of which, abutted on that owned by the plaintiff. That plaintiff’s grantor in 1860 owned the land now owned by the defendant, and that the said grantor conveyed to John P. Hawkins, who in 1865 conveyed to Hines, who in 1880 conveyed to the defendant. The jdaintiff’s grantor had for his convenience a wagon way from his house over the premises belonging to the plaintiff, and the same was used by the plaintiff’s grantor, and other persons owning the defendant’s land, by sufferance of the plaintiff, but without legal right
II. "We think the facts in this case bring it within the rule established in Mills v. Hamilton, 49 Iowa, 105. We are, in substance, asked by counsel for appellee to overrule that case. This we are not prepared to do.
III. In addition to the foregoing, it must be stated that the allegations of the petition in relation to the ownership of the land and the use of the way by the defendant are admitted in the answer. That such use was by sufferance only is, however, denied. But we understand that the defendant seeks to justify the use of the way under claim of right derived from the plaintiff or his grantor. In substance, the defendant, it may be conceded, sets up a right which, if established, will defeat the relief asked by the plaintiff. This being so, we think the motion was correctly overruled, for the reason stated in Shriker v. Field, 9 Iowa, 366; Judd v. Hatch, 31 Id., 491; Fargo & Co. v. Ames et al., 45 Id., 494. If it can be said that defendant has shown that he is in the actual possession of the right of way under a claim of right, this is merely matter
Affirmed.