117 Iowa 612 | Iowa | 1902
In March, 1880, John O’Reagan, Sr., being the owner of the west of section 15, township 80, range 2, east, in Dubuque county, conveyed the northwest i of said section to the plaintiff, and in April following conveyed the southwest ¿ to the defendant Michael Duggan. At the date of said conveyances the dwelling house, which had long been occupied by O’Reagan, Sr., was situated on the land conveyed to plaintiff. There was then no access to said northwest \ from the public highway without crossing the lands of third persons, except a traveled path extending from said residence in a southerly direction across the land now owned by Duggan to a highway spoken of in the record as the “Military Road.” From the time of the conveyance to him in 1889 to the year 1898, plaintiff continued to use this way to the public road without obstruction or interference, except that for some years gates have been maintained across the path in the line fence between the parties and in the fence bordering the highway. In the year last named, some dispute arose between the plaintiff and the defendant Webber, who is the tenant of Duggan, over an alleged failure to keep the gates closed when not in use, which dispute resulted in the locking of the gates by Webber, and the obstruction of the path against, plaintiff. In this action, plaintiff sets up the
I. A large part of the argument of appellants is devoted to the proposition that the facts attending the conveyance of the northwest \ to plaintiff were not such as to give him a right of way across the southwest ¿ by necessity, and that, if such right of way by necessity did pass, such necessity has since ceased, and, as a matter of law, the right ceased therewith. While this question is one of interest, and its application to this case would not be entirely free from difficulty, it is not presented by the pleadings, and we cannot properly undertake to decide it. The
II. It will not be profitable to enter into a particular recital of the testimony. Generally speaking, it tend 3 to show that John O’Reagan, Sr., was an early settler upon the lands now owned by plaintiff and defendant; that his residence was upon the northwest J; that the land was more or less rough and broken, and that the public road was reached by the way in controversy; that such way was so used for the convenience of the occupants of these lands for more than 10 years; that during the time since the conveyance to plaintiff he has put in and maintained a gate in the line fence to enable him to use the way, and has repeatedly worked upon and repaired the path at various points on the defendant’s tract; that he has at all times asserted his right to enjoy such use; and that such right was never disputed or contested by Duggan until the-year 1898. There is evidence, also, that O’Reagan, Sr.,, informed Duggan before making the conveyance to the' latter that his son, as the owner of the northwest £, had a right of way across the southwest and that Duggan responded that he and John would have no trouble over that matter. Witnesses also testify to admissions by Duggan indicating that he understood plaintiff’s claim, and recognized his right to use the way. Many of these things are denied by the defendant, but, in view of all the admitted
The record amply justifies the conclusion of the trial court, and the decree appealed from is affirmed.