70 Iowa 650 | Iowa | 1886
The defendants deny that the plaintiff ever had an easement in the stairway or hallway, or even a license to use the same. The evidence, as bearing upon these questions, is voluminous and conflicting, and we might not be agreed as to what it should be held to show. But we do not necessarily reach such questions. It is contended by the defendants that if the plaintiff at one time had the rights which he contends that he had, his rights were afterwards cut off by the foreclosure of a mortgage. The question as to the effect of the foreclosure lies upon the threshold. If this shall be determined adversely to the plaintiff, it is manifest that it is immaterial what rights he had before that time.
The plaintiff and the defendants, Calhoun and Brown, own a brick block erected upon lot 6, in the city of Marshalltown. This lot fronts north on Main street, and is bounded on the west by Eirst street. The plaintiff owns the west third, to-wit, that next to First street. Calhoun owns the middle third, and Brown the east third. On the line between Calhoun’s part and Brown’s part is a stairway leading to the floor of the second story, and in the second story a hall extends from near the head of the stairway westward across Calhoun’s part to Willard’s part. The stairway thus constructed on Calhoun’s and Brown’s premises, and the hall constructed on Calhoun’s premises, the plaintiff has heen accustomed to use in gaining access to the second floor of his part. In this way he has had the enjoyment of an inside stairway, and has not been put to the expense of erecting and maintaining an outside stairway. But recently Calhoun and Brown have become desirous of executing certain plans which require the closing up of the hall the use of which plaintiff has enjoyed, and without which the stairway is of no service to him, and, Calhoun and Brown being about to execute their plans, the plaintiff brought this his action to enjoin them; and he prays, not only that they be enjoined from interfering with his use of the hall, but of the stairway.
With this preliminary statement, we come to consider the effect of the foreclosure, which it is claimed by the defend-
Willard, the present plaintiff, made no appearance in the action, and was defaulted, and a decree was entered barring
But we do not think that we should be justified in treating, that part of the decree rendered in Wood’s favor void; that is, distinct from the other part. According to the plaintiff’s own theory, he could not have protected himself without redeeming from Wood’s claim. We see no reason, then, why the decree in respect to that should be held void. Willard was made defendant by Wood, and had due notice of all that Wood claimed. If there had been no consolidation, Wood’s action would have proceeded to a decree, and the result, so far as Wood’s claim is concerned, would have been the same. There was nothing of which Willard could complain except the fact that the other two claims were held paramount to his easement. It was enough for him to claim that the decree in respect to such priority was void. But if it were conceded that it was, he had still to redeem from the Wood claim. This he did not do, but he allowed the property to be sold under it, and the year of redemption to expire, and a deed to issue. We think that his rights, as the decree provided, became barred.
But it appears to us that we should be obliged to reach the same result upon different ground. The plaintiff avers in
It is insisted, however, by the plaintiff, that, even if his easement was extinguished by the deed to Brown, he gained
It is conceded that Calhoun and Brown own the stairway together, with a right to use the same in common. The
We think that the decree of the circuit court must be
REVERSED.