179 Iowa 318 | Iowa | 1917
“Par. 15. That a year ago last spring it was necessary to replace a bridge which gave way, by reason of which giving way it was impossible for the defendants or either of them to reach their cottages with any team or conveyance of any kind, and thereupon plaintiff notified the defendants both orally and in writing that he could not keep and maintain for their use and that of their tenants, a private park
“Par. 16. That the expense of repairing the roads, bridges and culverts last year cost the plaintiff at least $150, and by reason of the heavy rains which came last fall it has cost plaintiff $75 last spring to maintain the same.
“Par. 17. That some of the cottage owners have willingly paid said assessment, but these defendants declined, and threaten to continue to enter upon plaintiff’s property and use the dock kept and maintained by plaintiff as aforesaid.
“Par. 18. The plaintiff has never desired, and does not now desire to shut these defendants off from reaching their property, and has always been willing to consent to have them use the roads, wells, closets and grounds of the plaintiff for themselves and tenants, and to have the privilege of roaming over plaintiff’s beautiful private park, provided they would co-operate with him in bearing at least a small portion of the burdens in furnishing the conveniences and privileges as aforesaid.”
Plaintiff also attached to his petition the following written demand which he had made upon the cottage owners:
“to THE COTTAGE OWNERS AT THE LOWER rALISADES :
“For ten years, I have, at my own expense, kept and maintained a private park, consisting of several hundred acres, built and maintained the bridges leading into the Palisades, have worked the roads leading to the Palisades, kept and maintained the grounds, have dug wells and spent time and money to keep the grounds from washing away,
“Whereas, I have a large investment in the Palisades property, all of which has been used by the coi tage owners and their tenants as a park, free of any expense to them thus far, and I have, therefore, concluded that I cannot, and will not, pennit the cottage owners or their tenants to further trespass upon the grounds or to receive and enjoy any privileges of the Palisades, unless they contribute towards the expense of keeping up said grounds, and have, therefore, made an assessment of $10 to each cottage, to be paid on or before June 10th, 1912, which money I shall use or cause to be used in building and repairing the bridges, working the roads leading into the Palisades, fixing up the grounds, etc.
“To those who shall refuse to comply with this assessment, they will be legally notified to keep off of the said premises and will be denied the use of the grounds. If there is no! some co-operate plan of this nature on the part of the cottage owners to act with me in the keeping up and improving of these grounds, as suggested, I shall be compelled, in justice to myself, to close the Palisades, after this year, as a resort, and use it for other purposes.
“We, the undersigned owners of the lower Palisades, hereby agree to accept of said assessment and pay the amount assessed to us on or before June 10th, 1912.
“Names Names”
To this part of the petition, the defendants responded with Paragraph 5 of their answer, as follows:
“Par. 5. These defendants have been willing to contribute something towards the maintenance of the road now claimed by plaintiff to be a private road, but deny the right of plaintiff to charge such sum as he sees fit, regardless of whether the money is expended on the road or not;
We shall, therefore, recognize the issue as foreshadowed in the foregoing and as the parties.have actually litigated it. The locality under consideration is known in this record as the Palisades. Counsel are agreed in argument that the roadway in question extending from the Palisades to the north line of the Minott land was the equivalent of a way of necessity, and that these cottage owners had a right to travel thereover, and to that extent had an easement therein.
In view of the professions and tenders of equity held up to the court by both parties, we think that neither is now in a position to urge that the court exceeded its power or authority in fixing the amount of reasonable contribution from the defendants. There is nothing apparently inequitable in the result. It seems to us entirely consistent with general equity that reasonable contribution to the expense of necessary maintenance of this road should be made by all property owners who use it as a way of necessity to their property; and we think this applies also to the extension of the road from the north line of plaintiff’s land to tlie public highway. The amount of contribution could not be fixed .with mathematical certainty. Approximation was the best that could be done. The general effect of the order was to charge one half the maintenance to the plaintiff and the other half to the cottage owners, the court reserving jurisdiction for the purpose of future adjustments between them.
“Upon the payment of said $5 on or before the 1st day of April of each year, except this year, which shall be within 20 days after filing this decree, the owners or lessees or assigns or guests of such paying cottagers shall have and enjoy the privileges of the road grounds and river front at said place. Should any cottager fail to pay said sum of $5 per year at the time above stated,, such cottager, his lessee and guests are restrained and prohibited and enjoined from using the said grounds and river front under penalty of being in contempt of this court.”
Both parties complain of this provision. The plaintiff complains of the first part thereof because, for the payment of $5, it appears to give to the defendants an easement generally in the “grounds'” of the plaintiff. The defendants complain of the last part thereof because it imposes upon them a harsh penalty for default in the payment of the $5 exacted from them. Prior provisions of the decree give the plaintiff a lien for the payment of such sum upon each cottage and its ground, and it is said this ought to be sufficient. In discussing this feature of the decree, it is made to appear in the briefs that there is a certain area of ground extending up to the docks and having dimensions of 200 feet by 500 feet, which is referred to as the Commons, or playgrounds. The defendants contend that they bought their lots with reference to these Commons, the same being in use as such at the time of the purchase. The .plaintiff contends that these Commons are a mere appurtenance of the hotel, and are strictly the private grounds of the plaintiff. The evidence bearing on this question is slight and unsatisfactory. The pleadings contain no intimation of such an issue. The cross-bill of defendants prayed only that
“The court further finds that the cottagers, their guests and tenants, have been for more than 10 years last past permitted as licensees only to enjoy the privileges of the rest and playgrounds, and the boat landing of the plaintiff, either by the plaintiff or his grantors.”
And the decree entered beloAV aauII be modified accordingly. Tn all oilier respects the decree will be — Affirmed.