Bina v. Bina

• Decision Date: 24 November 1931
• Docket Number: No. 41074.,41074.
• Citation: 213 Iowa 432,239 N.W. 68
• Parties: BINA v. BINA ET AL.
• Court: Iowa Supreme Court

213 Iowa 432

239 N.W. 68

BINA

v.BINA ET AL.

No. 41074.

Supreme Court of Iowa.

Nov. 24, 1931.

Appeal from District Court, Winneshiek County; H. E. Taylor, Judge.

This was a proceeding by the plaintiff praying: First, that a previously existing easement, for a right of way over land, be terminated; and, second, if that relief is not granted, that the defendants be enjoined from leaving gates open, plowing up the adjacent land, and trespassing upon plaintiff's crops while using said right of way. By way of cross-petition, the defendants asked: First, that the easement of right of way be recognized and permanently established; second, that the plaintiff be enjoined from interfering with the defendants' right to use the right of way; and, third, that the defendants be permitted to repair the right of way. The district court denied the plaintiff relief, and granted the prayer of defendants' cross-petition. From the judgment entered, the plaintiff appeals.

Modified and affirmed.Frank Sayre and E. P. Shea, both of Decorah, for appellant.

Goheen, Goheen & Neuzil, of Calmar, for appellees.

KINDIG, J.

This controversy involves a quarrel over a private right of way. The plaintiff-appellant, Wencel Bina, and the defendant-appellee Mathias Bina, are brothers. Frances Bina, a defendant-appellee, is the wife of the appellee Mathias Bina. Ernest and Victor Bina, defendants and appellees, are the sons of Mathias and Frances Bina.

On and for a long time before March 22, 1905, the land involved, consisting of approximately 230 acres, was owned by Mary Bina and Mathias Bina, Sr. These owners were the father and mother, respectively, of the appellant Wencel Bina and the appellee Mathias Bina. A sale of 70 acres of the aforesaid land on the date named was made by the father and mother to the appellee Mathias Bina. In addition to the 70 acres of land thus sold, the father and mother also bargained to give the appellee Mathias Bina a right of way over the other 160 acres of the first-named land. Accordingly, a deed of conveyance was made transferring the 70 acres of land and right of way from the father and mother to the appellee Mathias Bina. Likewise, on the same date, for a consideration of $2,200, the father and mother sold to the appellant the remaining 160 acres of the first-described land, subject to said right of way. To complete the transaction, the parents gave the appellant a deed to the 160 acres, subject to the right of way.

One of the farms is located on a public road running between Calmar and Spillville; while the other has no access to that public thoroughfare. Appellant's 160-acre tract abuts upon the aforesaid public road, but appellee's 70-acre farm has no access to such highway except over the former's land. Consequently, when conveying this real estate to their sons, the parents were careful to provide a right of way over appellant's land for the appellee in order that the latter could reach the public highway from his premises. This was the road used by the parents before the conveyance and thereafter utilized by the appellant for his own convenience. It seems that appellant's house and farm buildings are a considerable distance from the highway, and the private road running from the farm belonging to the appellee Mathias Bina proceeds near the buildings named. There is much irregularity in the land along the private right of way. Some of it is level, but much is hilly and rocky. That private highway had existed for many years before the deeds above named were executed by the parents who formerly occupied the house on appellant's farm above described. On each side of part of this private way extending between appellant's house and the public highway, there is a fence forming sort of a lane, but the rest of the private way is unfenced over appellant's fields. Said fence extends for a distance of approximately 300 feet. Some years ago a bridge or culvert was built on this private road, with the common consent of both appellant and the appellee Mathias Bina. Thus the bridge or culvert now is a part of the right of way.

For many years, the appellant and the appellee Mathias Bina were compatible and used the private right of way in harmony. More recently, however, there has been discord and strife. Appellees have tried to repair the private road, and appellant now complains of their so doing. At times the gates were not closed by appellees, as required by the above-named deed to the appellee Mathias Bina. In many ways the appellant obstructed appellees' use of the private way. Upon one occasion, one of the appellees was using the private road near a culvert, and appellant, approaching in the opposite direction with a team and wagon, stopped and unhitched the team. Therefore said appellee could not proceed with his automobile. Fights ensued, pitchforks were used, and there was much loud and objectionable talking. Obviously these brothers were prone to disregard the Scriptural mandate: “Be reconciled to thy brother.”

The present action in any event was commenced by appellant, as said in the preliminary statement: First, to nullify and set aside the provision in the deed creating the right of way; and, second, to enjoin the appellees from leaving gates open along the right of way, plowing up the adjacent land, and trespassing upon appellant's crops while using said private way.

By way of cross-petition, the appellees prayed: First, that the easement of right of way be recognized and permanently established; second, that the appellant be enjoined from interfering with the appellees' right to use the private road; and, third, that the appellees be permitted to repair the right of way. After the hearing, the district court denied the relief asked by appellant and granted the appellees the redress enumerated in their cross-petition, as above specified. From the judgment and decree thus entered, the appellant appeals.

[1][2] I. A careful consideration has been given to all the facts and circumstances revealed in the record, and we are constrained to hold that the appellee Mathias Bina, through the deed from his father and mother, is entitled to use the private right of way in question. Such use, of course, must be in conjunction with the right of appellant to likewise utilize the private road for the purposes of his own farm. Of course, the appellant in so using the private road cannot in any way interfere with the appellee Mathias Bina's utilization thereof. Furthermore, appellant has a right to occupy and use his farm over which the private right of way runs, subject to the appellee Mathias Bina's easement. Restricted by those conditions, however, the appellee Mathias Bina does own the easement.

Accordingly, because the district court did not in all respects limit the rights of the respective parties in that manner and way, its judgment and decree is modified to that extent.

[3] II. Much confusion, nevertheless, arises concerning the width of that easement. Several witnesses, however, testified that the road used is approximately eighteen feet wide. Some indication of this may be found in the fact that the lane aforesaid, forming part of this private way, is in fact eighteen feet wide. Were the private way not of that width, the appellant and appellees would have difficulty in passing each other on the road. That fact, together with the other circumstances, indicates that the private way is approximately eighteen feet wide. Consequently, it is here held that this right of way is eighteen feet in width.

Again the judgment and decree of the district court is modified because that tribunal fixed the width at “not less than eighteen feet.”

[4][5] III. Regardless of the grant of the easement named in the original deed, appellant contends that appellees, by their conduct, have forfeited their right thereto. Such is true, appellant contends, because the appellees, in violation of the express condition on which the grant was made, left open gates along the private road.

But in reference to this point, it is clear that nothing done by Mathias Bina or the other appellees is sufficient to cause a forfeiture of that right. Although it is true that appellant's gates along the right of way were sometimes mistakenly left open, yet such conduct was apparently not for the purpose of being malicious or denying appellant's rights in the premises. Appellees' actions in thus leaving the gates open were based upon the misunderstanding that it was not necessary upon those occasions to shut them, because no stock at the time grazed or roamed in the...