146 Iowa 679 | Iowa | 1910
T,he original defendant in this case was J. C. Hubinger. After the trial in the court below, he died, and his executor has been substituted as the defendant. It will be more convenient for us in the discussion to ' take no account of • this substitution and to refer to Hubinger as the defendant, inasmuch as he so appears throughout the record of the court below.
The property in which an easement is claimed is the residence property of the defendant. This property consists of spacious grounds highly improved as a residence, and comprises thirteen lots in block forty-five in the city of Keokuk. These lots run parallel across the block, and comprise approximately the south half of the block. This block is a long, narrow block, and its lots are numbered consecutively from one to twenty-seven, beginning at the south end. This block is on the crest of a high bluff overlooking the Mississippi River to the east and abutting on the east line of Grand Avenue. The bluff upon which
In 1900 Hubinger entered into negotiations with one Wallace for the sale of the electric plant Wallace was acting for undisclosed principals. These negotiations resulted in the purchase of the plant by the present plaintiff. For two or three years after this purchase, the present plaintiff continued the use of the lead of poles and wire and the footway for pedestrians over defendant’s residence property in the same manner as before, and without any question of right thereto being raised by the de^fendant. In 1901, one year after the transfer, at the request' of Hubinger, the lead of poles for the conduct of electric wires was changed, in this: that higher poles were substituted and two poles were used in lieu of three. The substituted poles were fifty-five feet in height, whereas the former were only thirty-five feet. The detailed method whereby the power plant was sold and conveyed was that the present plaintiff was organized as a new corporation. Three thousand nine hundred and ninety-five shares of its stock (being all the shares of such stock except five) were issued to the Hubinger Company. Two hundred and fifty thousand dollars of bonds of the new company were also issued, and these were all issued to the Hubinger Com
The J. C. Hubinger Company sold the bonds and stock and received for them $182,000. Granger Farwell and J. B. Wilber furnished the money. There was no consideration paid directly in money by the Keokuk Electric Bailway & Power Company to J. C. Hubinger Company. The consideration was the bonds, and the money was raised by the sale of them. Before this sale, the J. C. Hubinger Company was the owner of this plant, and J. C. Hubinger was the owner of all but four or five shares in the J. C. Hubinger Company. Immediately after the sale, the J. C. Hubinger Company was the owner of all but five shares of the Keokuk Electric Bailway & Power Company, and all of its bonds. The plaintiff is seeking to treat itself as an independent purchaser of this plant, as a sort of an innocent purchaser. This transfer was conducted for the J. C. Hubinger Company and for the Keokuk Electric Bailway & Power Company by Mr. Hubinger. No money whatever was paid. It was merely an exchange of property for an exchange of stock in a corporation. There is not the slightest evidence that J. C. Hubinger, as the Keokuk Electric Bailway & Power Company, relied upon any oral representation of J. C. Hubinger. in making this exchange. While the technical title of the plant changed, there was in fact no change in the beneficial ownership. No person can create an estoppel in favor of himself. Mr., Hubinger’s relations to both of these companies at the time of the transfer were such that it was impossible to create any estoppel arising directly in favor of the Keokuk Electric Bailway & Power Company.
The following quotations from the foregoing oases are a sufficient exemplification of the rule, as applied to the facts in this case.
It may be considered as settled that, on the conveyance of one of several parcels of land belonging to the same .owner, there is an implied grant or reservation, as the case may be, of all apparent or continuous easements or incidents of property which have been created or used by him during the unity of possession, though they could then have had- no legal existence apart from his general ownership. ...
The principle is that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement or portion sold with all the benefits and burdens which appear at the time of the sale to belong to it as between it and
We reach the conclusion that Hubinger must be
Another case was consolidated herewith, and is referred to in the caption herein. It is, in fact, the same case between the same parties involving precisely the same controversy, and carrying a reverse title. After the commencement of this case, the defendant herein brought an action as plaintiff naming the plaintiff herein as defendant therein. Hubinger’s petition in the second action is used as a cross-bill in the first action, and the plaintiff’s petition in this action is used as a cross-bill in the second action, a most intolerable practice, which the trial court ought not to have permitted. The decree entered below ' granted the plaintiff the relief prayed in the first case and dismissed Hubinger’s petition in the second case.
The decree was right, and it is in all respects, affirmed.