196 Iowa 136 | Iowa | 1923
Plaintiff, Henry Lembke, and intervener, Charles Lembke, are brothers. They are the owners of adjoining lands, which formerly they had occupied as neighbors, for many years. Originally, their adjoining lands comprised the northeast quarter of a certain Section 13. Henry owned the east half thereof, and Charles, the west half thereof. About 1898 or 1899, Charles Lembke purchased the east half of the southeast quarter of said Section 13, known in the record as the Newberry 80. It will be noted that the Newberry land joins the plaintiff’s land on its south line, whereas it only corners with the 80-acre tract of Charles Lembke, its purchaser. The following diagram will be an aid to an understanding of the evidence:
George Lembke, defendant, is a son of Charles Lembke’s, and is in possession of all the land of Charles Lembke herein involved. As to a part of such, he is in possession under a contract of purchase; and as to the remainder thereof, he is in possession as a lessee, and as an optionee to purchase.
The testimony on behalf of the defendant and intervener was that, before purchasing the Newberry 80, Charles Lembke
*139 “I had a talk with Charles Lembke about a roadway across my farm at the southwest corner. The conversation was about a mile north of Griswold, after I had lived there for four years. There was no conversation had near the place in dispute, as testified here, — nothing of the kind whatever. It is ridiculous. I never had any such conversation where I urged him to buy the farm, and that, if he would buy it, I would give him a roadway across there. One time, he came with his wife, for the very purpose to get permission, and I told him he could go across the corner of the farm. I told him that they should make two gates, a gate for each line fence, and to swing them on. their side of the line whenever they went through, so they would not antagonize my renters. I gave him permission to cross the corner of my land there. It is on a certain provision that he keep those gates and not interfere with my renters, and not intended for anybody else, — simply for his boys or others that was working for him; and that he should pay attention to them, and see that they would not interfere with them. In about six years, the renter I had then made complaint that George Lembke would swing the gates in towards my field. I thought I would let that go. I never executed any writing' giving that roadway across there. I just done it like a neighbor would say to another, ‘"Why, you can go across there.’ * * * In 1912, I told Charles Lembke that I had been pestered so much there that he couldn’t use this [roadway] any more.”
On cross-examination, he testified:
“I gave my brother the right to open that fence and go through there. I knew he was going through there and using*140 this as a driveway during the last twenty years. I knew he constructed a driveway there,' — at least he told me so. * * * I knew I had given him the right to go through there. I know that cattle or anything else couldn’t get on my farm with a fence across the corner there and a gate between the corner and the fence. If they left the gate open, cattle or horses or hogs or anything else couldn’t go any place except on their own land. My tenants were complaining that they were throwing the fence into the field. I think they were complaining about swinging the gates onto my land. They were not complaining because the fence had cut off about four square rods of my land. ’ ’
The defendant used this driveway from the fall of 1898 or' 1899 until February 28, 1921. There was- a temporary interference with his possession in 1912, when the diagonal fence was removed, and was replaced by the defendant within a few hours. From that time, acquiescence continued down to the beginning of this suit. It will be noted from plaintiff’s testimony as a witness that he claimed to have granted the right of way on condition that the gates should be swung so as to open upon the land of the intervener, and not upon the plaintiff’s land; and further, that his reason for withdrawing his promise was that the plaintiff’s renters had been “pestered” by the encroachment of the gates upon the land of plaintiff. The method of setting off the ground for the right of way that was adopted by the defendant was so adopted immediately. No gates whatever were constructed in the diagonal fence. The only gate constructed was one for the defendant’s own use. No complaint was ever made by plaintiff to his brother of the manner of cutting off the right of way. There was no “pestering” in fact of his tenants, though such was the reason given by him for changing his attitude. Computation shows that the quantity of land occupied for the right of way was exactly two square rods, which is the equivalent of one-eightieth part of an acre. The claim of plaintiff in his evidence that he imposed a condition upon the intervener to the effect that he should swing two gates from the southwest corner post, each of which should open upon the intervener’s land, is not at all persuasive, in the light of all the admitted circumstances. Such a condition would presuppose that no stock was to pass over such right of way. There is no claim that such
We see no escape from holding that the weight of the evidence sustains the contract as claimed by the defendant.
The trial court included in its decree a finding of facts which did not affirmatively contradict the material evidence for the defendants. It appears therefrom, however, that the trial court did not regard as material the question whether plaintiff’s agreement was made prior to the purchase of the Newberry land or after, and it made its finding in the alternative on the question of time. We think this probably accounts for the finding
It will be readily seen, therefore, that the use of this little corner right of way. Avas of -very great importance to the defend
Inasmuch, therefore, as the agreement itself operated as a substantial inducement to the intervener to purchase the New-berry land, and inasmuch as he did purchase it in reliance thereon, and as the plaintiff knew that he was relying thereon in the making of such purchase, and inasmuch as he took immediate and exclusive possession of the right of way thus agreed upon, and such exclusive possession was acquiesced in for at least 14 years, without objection, it cannot be said that the agreement was invalid, as being within the statute of frauds, or as being without consideration; nor can we say that there was any lack of substantial proof of the oral agreement.
Whether the agreement amounted to an irrevocable or executed license, or whether it amounted technically to an easement, is not material to the present decision. The pi’actical distinction between the two is very slight. See Ruthven v. Farmers Co-op Creamery Co., 140 Iowa 570; Arbaugh v. Alexander, 151 Iowa 552; Green v. Crain, 185 Iowa 1086.
The license or the easement, whichever it may be,' is not necessarily permanent. It is necessarily incident to the continued ownership or occupancy of these two tracts of land by the same-person. It will automatically cease whenever this relation in the ownership and occupancy of these two tracts ceases. That it should continue until such time and cease at such time is consistent with the manifest intention of the parties at the time the agreement was made. The intervener could not reasonably have expected more, nor the plaintiff have intended less. We are constrained, therefore, to disapprove the decree entered below, and it is accordingly reversed. — Reversed.