Arbaugh v. Alexander

• Decision Date: 05 July 1911
• Parties: ARBAUGH v. ALEXANDER.
• Court: Iowa Supreme Court

151 Iowa 552

132 N.W. 179

ARBAUGH

v.ALEXANDER.

Supreme Court of Iowa.

July 5, 1911.

Appeal from District Court, Harrison County; W. R. Green, Judge.

Action in equity to enjoin the defendant from obstructing an alleged right of way. A demurrer to the petition was sustained, and, plaintiff electing to stand on his pleading, judgment was entered against him for costs. Plaintiff appeals. Reversed.S. H. Cochran, for appellant.

C. A. Bolter, for appellee.

WEAVER, J.

So far as material to this appeal, the petition of the plaintiff is in the following words: “Plaintiff for cause of action alleges: That he is the owner of 200 acres of land which corners with 40 acres owned by the defendant, and about June 1, 1903, plaintiff and defendant made an oral agreement by the terms of which a highway which had been traveled by the public for over 20 years should be so arranged as to pass over the southeast corner of the defendant's land, so as to accommodate the plaintiff and the public to a better highway intersecting the regular highway known as the Steer Creek road; and it was further agreed that if plaintiff would build a bridge on the defendant's land in the southeast corner thereof, over Steer creek, making it part of said road, that plaintiff should have the right to use said road and bridge in common with defendant and other persons as long as defendant should live or owned the land, and the said bridge should be kept up by plaintiff. In keeping with the terms of said oral agreement, the plaintiff constructed the bridge and has kept it in proper repair ever since, and plaintiff and defendant have used the said road and bridge ever since and up to about June 20th, when defendant obstructed said road by placing a fence across the same so the plaintiff cannot go over said road and bridge, and said road and bridge is the only one plaintiff can use to go northwest to the intersection of the Steer Creek road, that the obstruction of said road and bridge was unlawful, constitutes a nuisance, and the plaintiff has sustained damages by reason thereof in the sum of $100, and still suffers damages different from the public generally by reason of the obstruction preventing him from getting out of his premises to the northwest.”

The grounds of the demurrer to this petition are (1) that the plaintiff pleads an oral contract for the creation or transfer of an interest in lands when by the statute of frauds such agreements are unenforceable; (2) that the petition shows that the contract relied upon was without consideration; and (3) that plaintiff is not the real party in interest, and the right to maintain the action, if any, is in the public and the constituted public authorities.

We are of the opinion that the petition states a good cause of action, and the trial court erred in sustaining the demurrer thereto. It is true the pleading is not a model of clearness, but it may fairly be gathered therefrom that the parties entered into an agreement by...