147 Iowa 743 | Iowa | 1910
In the year 1908 plaintiff purchased the farm now used and occupied by him from one Jesse Clark, and as part of the consideration' therefor he, Clark conveyed to plaintiff the right of way in question over other lands belonging to Clark. The language of this conveyance was as follows: “Ohauncy R. Robbins to have the use of the road now used by Jesse Clark out to the street, not to be over sixteen feet wide, as long as he keeps the gates closed.”
The road thus conveyed and referred to while over other lands belonging to the grantor Clark is sufficiently identified by the testimony. The deed which conveyed the land and this right of way was duly acknowledged and recorded on the 8th day of November, 1900. Plaintiff immediately went into the possession of the premises conveyed, and commenced using the road and continued in the use and occupancy of the same until defendant, who had purchased the land over which the right of way was granted, fenced the same, and denied plaintiff’s right to use it. He told the plaintiff, however, that he could use another right of way across his, defendant’s farm, but, as this was not acceptable to plaintiff, he, plaintiff, commenced this action to compel the removal of the obstructions and
Defendant concedes that he huilt fences across the right of way so granted; but claimed that, as he offered plaintiff another right of way which was adequate, plaintiff was hound to accept it in lieu of the one granted, or, if not bound to accept, that' he could not have a mandatory injunction for the opening of the way granted, but must be confined to an action for damages. It is true that defendant did offer plaintiff another way, but plaintiff refused to accept it because it was over low ground and “seepy places,” rendering it unpassalble in wet weather, whereas the right of way given him by his deed was always passable. The trial court evidently found one road was as good as the other, and, proceeding upon the theory that the action was for trespass, denied the equitable relief
The cases cited by appellee’s counsel are not in point as they refer either to actions of trespass or to actions other than the protection of a definite easement or license. The judgment must be reversed, and the cause remanded for a decfee in harmony with this opinion, — Reversed and reminded.