109 S.W. 654 (Mo. 1908), Bunch v. Wheeler

Citation:109 S.W. 654, 210 Mo. 622
Opinion Judge:GANTT, J.
Party Name:HUGH J. BUNCH v. GEORGE H. WHEELER, Appellant
Attorney:Mann & Daniel for appellant. Jno. A. Gilbreath and J. C. Hargus for respondent.
Judge Panel:GANTT, J. Fox, P. J., and Burgess, J., concur.
Case Date:March 31, 1908
Court:Supreme Court of Missouri

Page 654

109 S.W. 654 (Mo. 1908)

210 Mo. 622




Supreme Court of Missouri, Second Division

March 31, 1908

Appeal from St. Clair Circuit Court. -- Hon. W. W. Graves, Judge.

Reversed (with directions).

Mann & Daniel for appellant.

(1) The attempted reservation in the deed from plaintiff Bunch to Fisher of a right of way through the premises conveyed was void for want of certainty. "The right of a way near the original road" describes nothing and reserves nothing. Peterson v. Beha, 161 Mo. 513; Railroad v. Story, 96 Mo. 621; Barrett v. County Court, 44 Mo. 202; Railroad v. Newsom, 54 Ind. 125; Sonnells v. Minnesota Lake, 50 Minn. 556. (2) There is absolutely no evidence that plaintiff ever took possession under the deed, and used and traveled the particular strip of land twenty feet wide, described in plaintiff's petition and in the judgment of the court. (3) The evidence utterly fails to support the judgment, in this: The judgment describes a definite strip of ground twenty feet wide, running through the premises of defendant in an irregular, meandering course, and forever prohibits defendant from obstructing this strip of land. If the judgment is allowed to stand defendant, in order to comply with it, must, if he wants to use his other lands, fence this twenty-foot strip into a lane, and leave it open at each end, giving plaintiff possession of, and title to, a private road, definitely located on the site of the old "original road" across defendant's lands. The reservation in the deed, taken alone, certainly does not support the judgment. The evidence of possession and use under the deed does not support the judgment because all plaintiff was ever permitted to use after deeding the land to Fisher was a gateway through the land, the location of which gateway is not definitely shown by the evidence.

Jno. A. Gilbreath and J. C. Hargus for respondent.

(1) The reservation in the deed was not void for want of certainty. Parol evidence is admissible to locate or identify things mentioned in the deed so as to satisfy the description therein. Bank v. Bates, 17 Mo. 583; Hart v. Rector, 7 Mo. 532; Landes v. Perkins, 12 Mo. 239; Bates v. Bank, 15 Mo. 309; Charles v. Patch, 87 Mo. 466; Hammond v. Johnston, 93 Mo. 214; Davis v. Watson, 89 Mo.App. 29; Lakeman v. Railroad, 36 Mo.App. 370; 14 Cyc., 1160; Kronenberger v. Hoffner, 44 Mo. 192; McAlister v. Honea, 71 Miss. 256; 1 Ballard on Real Prop., 113; 3 Ib. 212-215; 4 Ib. 187; 5 Ib. 200; 6 Ib. 224; 7 Ib. 183; 8 Ib. 188; 9 Ib. 175; 10 Ib. 162. (2) Where the width of the right of way granted be not defined in the deed, it will be construed to be a grant of so much as is reasonably necessary for the purpose for which it is granted. Davis v. Watson, 89 Mo.App. 30; Washburn, Real Property (11 Ed.), 311; 14 Cyc., 1160, 1161. (3) If the way granted is not definitely located, practical location and use of such a way by grantee under his deed, acquiesced in by the grantor at the time of the grant and for a time subsequent thereto, may operate as an assignment of the right and may be deemed that which it was intended to convey, and the same, in legal effect, as if fully described by the terms of the grant. French v. Hayes, 80 Am. Dec. 127; Wolf v. Dyer, 95 Mo. 545; Carter v. Foster, 145 Mo. 383; Davis v. Watson, 89 Mo.App. 30; Lawson on Contracts (2 Ed.), sec. 400; 14 Cyc., 1161; Atty.-Gen. v. Drummond, 1 Dr. & W. 353; Matthews v. Danby, 26 Mo.App. 660. (4) Construction put on a deed by the parties...

To continue reading