157 Iowa 570 | Iowa | 1912
— Plaintiff and defendant are the owners of adjoining buildings situated on lots 3 and 4, in block 19, in the city of Maquoketa, Iowa. These are inside lots fronting on the main street in said city, and there is no alley to the rear of plaintiff’s lot 3. The two lots were originally owned and improved by one John E. Goodenow, now deceased, and plaintiff obtained title to his lot through one Mrs. H. O. Tinker. Mrs. Tipker obtained her title from her father, John E. Goodenow, in the manner hereinafter stated. Defendant obtained her title to lot 4 through one B. D. Ely; the latter obtaining his title in virtue of a sale of the property by the executor of the estate óf John E. Goodenow, deceased, for the purpose of paying claims against his estate. In the year 1857 Goodenow erected a brick building upon lot 4, and on the inside of the morth wall of the building, which was placed approximately upon
2. I give and bequeath to my beloved daughter, Mrs. H. O. Tinker, living in Chicago, 111., the following premises situated in Jackson Co., Iowa, to wit: Lot No. 3, Blk. 19, in the city of Maquoketa, Iowa, according to Perrin’s survey, of 1813. ...
8. I have made and executed jointly with my wife a deed to the property given to my last named children, signed by myself and my wife, which deeds are to be left with my will and upon our death as aforesaid, my executor, D. H. Anderson, named shall hand to each of the persons therein named, a deed of the portion of property I intended for them.
Said deed I executed and duly acknowledged on the 15th day of November, 1901.
After the death of Goodenow, his executor made application to the probate court for authority to sell lot 4 for the purpose of paying claims against the estate, and Mrs. Tinker was made a party to that application, and was properly served with notice thereof. This application was made some time in the year 1904, and, after a hearing' was granted and pursuant thereto, the property was sold to B. D. Ely, and a deed of date of March 21 was executed and delivered to him. This deed described lot 4 by metes and bounds, and fixes the north boundary as the center of the brick wall between the two buildings. Mrs. Tinker made no appearance to the application,' and the order of sale was
Appellee relies, however, upon three propositions in support of the decree of the trial court: Eirst. She contends that the conveyance of lot 3 did not operate to transfer to the grantee an easement in lot 4, for the reason that the stairway was not essential to the use of the premises conveyed. Second. She insists and offered evidence to prove that plaintiff never made any claim to an easement in lot 4, but, on the contrary, distinctly asserted that he made no claim thereto, and that, by reason of these facts, he is estopped from claiming that any such thing exists. Third. She claims that the matter of an easement in lot 4 was adjudicated adversely to plaintiff in the proceedings
As to the first proposition, the record shows that the stairway was essential to the convenient use and enjoyment of lot 3, and we think it passed by the conveyance to Mrs. Tinker, and through her to the plaintiff.
However, it was not necessary, we think, that plaintiff show a way of necessity. His grantor had so constructed and used the two buildings as to create an easement in favor of lot 3 as soon as he destroyed the unity of title by the conveyance to his daughter. Of course, if there was another way whereby to reach the second story of the building on lot 3, that fact might, and should, be taken into consideration in .determining whether or not the stairway was intended as a common entrance to the two buildings, or was simply a temporary expedient, subject to change at any time. But here there was no other available entrance to the second story from any street, or alley, and it is clear to our minds that the stairway was erected to furnish that sort of entrance.
Plaintiff’s admissions should doubtless be considered upon the main question as to whether or not there was an easement in lot 4, but they are not conclusive upon him. In considering them for the only purpose for which they may legitimately be used, we must also take into account the circumstances under which they were made, the knowledge that plaintiff had of his legal rights in the premises, and all the other facts in the case. The law upon the subject of easements in stairways used in common is not generally understood by laymen, and the profession is not agreed upon it. Indeed, in this very ease, counsel, after seeking aid from the books, are not agreed, and it is not surprising to find that plaintiff did not know his full rights in the premises, and may have assumed that he did not own any rights in lot 4 because of his unfamiliarity with the law of easements and appurtenances to real estate. If there were any doubt as to what would pass by the conveyance, and plaintiff, after being advised as to his rights, had disclaimed any right of easement, he should be held to his disclaimer*. But that is not the record here, and he clearly is not estopped.
The decree will, therefore, be reversed, and the cause remanded for one in harmony with this opinion.
Reversed and remanded.