86 P. 26 | Wyo. | 1906
The statements contained in the petition, so far as necessary to an understanding of the questions presented for review, are, in substance, as follows: That in 1885 one Erasmus Nagle, being the owner of lot 7, and the east 38 feet of lot 6, block 358, in the City of Cheyenne, erected a
The answer of defendants denied the allegations of the petition in relation to the granting of any easement in or to that part of the driveway lying east of the land described in the deed to plaintiff, and denied that there was any mistake in the deed, or that it was the intention of Mrs. Nagle to convey any other property than that described in the deed.
The case was tried to the court and three findings of fact, and three conclusions of law made by the court, in substance as follows: (1) That the driveway in question was located, built and established in the year 1885 by Erasmus Nagle, the then owner of the premises, for the use and benefit of the owners and occupants of the two dwelling houses, one situated on the west 32 feet of the east 38 feet of lot 6, and the other on lot 7. (2) That continuously since the location and building of said driveway, the same has been used and enjoyed by said Nagle, his tenants and other persons deriving title to and occupying the premises including said two dwelling houses, in common, for the purpose of conveying fuel and other necessaries to said dwelling houses, and for convenient accesss to the barn, heretofore and until the 10th day of June, 1904, situated on the rear portion of said.lots. (3) That the error in the description of the land as set forth in the deed mentioned in plaintiff’s petition, and dated May 16th, 1904, whereby Emma J. Nagle conveyed to plaintiff the west 32 feet of the east 38 feet of said lot 6, was not occasioned by the mutual mistake of plaintiff and said Emma J. Nagle, nor did she intend by said deed to convey any other land or interest in land than that therein set forth and described.
Conclusions of law: (1) That both the plaintiff, his heirs and assigns, and said Emma J. Nagle, her heirs and assigns, are entitled to have said driveway kept open and unobstructed and to use and enjoy the same so long as the same shall be reasonably necessary and convenient to the use and occupation of said dwelling- houses or either of them. (2) That the attempted building of the fence and other acts of defendants alleged in the petition were wrongful interferences by defendants with plaintiff’s right to use and enjoy said driveway, and entitled plaintiff to injunctive relief. (3) That plaintiff is not lawfully entitled to have said deed reformed so as to convey other property than that therein stated and described.
To this third conclusion of law the plaintiff excepted upon the ground that it is not sustained by the evidence and is contrary to the evidence.
A decree was entered in accordance with the above findings of fact and conclusions of law, to which the following exception was taken by plaintiff: “Now at the time of the rendering of the foregoing findings of fact, conclusions of law and decree comes the plaintiff in person and waives all exceptions and objections for error in the same, save and excepting only, that he objects and excepts to the third finding of fact upon the grounds hereinbefore stated, and also to the third conclusion of law upon the grounds herein-before stated, and to so much of the decree proper as denies the reformation of said deed as prayed for.” Upon these exceptions, plaintiff brings the case here on error.
The only question presented by these exceptions is the sufficiency of the evidence to sustain the third finding of fact, the third conclusion of law and that part of the decree which denies a reformation of the deed.
Counsel for plaintiff in error had devoted considerable space in his brief to a discussion of the powers of a court of
In the case at bar, the plaintiff sought relief upon two grounds: One, that the driveway in question was an ease