Boyd v. Bloom

• Decision Date: 01 February 1899
• Docket Number: 18,680
• Citation: 52 N.E. 751,152 Ind. 152
• Parties: Boyd v. Bloom
• Court: Indiana Supreme Court

52 N.E. 751

152 Ind. 152

Boyd v. Bloom

No. 18,680

Supreme Court of Indiana

February 1, 1899

From the Noble Circuit Court.

Reversed.

H. G Zimmerman, for appellant.

H. C Peterson, for appellee.

OPINION

Monks, C. J.

Appellant sued appellee to enjoin him from removing a gate erected across a private way, and for damages. After the issues were joined the court tried said cause, and made a special finding of the facts and stated conclusions of law thereon in favor of appellee, to each of which appellant excepted. Judgment was rendered in favor of appellee. The errors assigned call in question each conclusion of law.

It appears from the special finding that one Shanower owned two adjoining tracts of land, and that the north end of one of said tracts abutted upon a public highway. In 1890 said Shanower sold and conveyed to appellant's grantor, the tract abutting upon said highway, without any reservation in the deed, and at the same time sold and conveyed to appellee the other tract, providing in said deed that appellee "should have a free and undisturbed right to the use" of a way out to the public road on the tract conveyed to appellant's grantor, fifteen feet wide and about one hundred rods long. The deed to appellant's grantor was executed Oct. 14, 1890, and the deed to appellee was signed and acknowledged on Oct. 14, 1890, but was not delivered until the next day, Oct. 15. At the time that said deeds were executed said way was fenced on both sides from the land sold to appellee, north to the highway, leaving a passage way about fifteen feet wide between said fences, and so remained until April, 1895, when the west fence along said lane was taken down and removed by appellant who then owned the same, without the consent and over the objection of appellee, and has not since been replaced; that at the time said deeds were made gates or bars were maintained across said way about eighteen rods south of the highway where they remained until 1893, when they were placed by appellant's grantor at the north end of said way, next to the highway, without the consent of appellee. There was no understanding or agreement between appellee and appellant or his grantor, that a gate should be maintained on any part of said way; that the gate across the north end of said way next the highway was removed by appellee October, 1896, before the commencement of this action.

It is the rule established by the authorities that where one grants a right of way across his land he may shut the termini of the same by gates, which the grantee must open and close when he uses the same, unless an open way is expressly granted. Phillips v. Dressler, 122 Ind. 414, 17 Am St. 375, 24 N.E. 226; Frazier v. Myers, 132 Ind. 71, 73, 31 N.E. 536; Maxwell v. McAtee, 48 Ky. 20, 9 B. Mon. 20, 48 Am. Dec. 409; Garland v. Furber, 47 N.H. 301; Bean v. Coleman, 44 N.H. 539; Amondson v. Severson, 37 Iowa 602; Houpes v. Alderson, 22 Iowa 160; Bakeman v. Talbot, 31 N.Y. 366, 88 Am. Dec. 275, and note, p. 282; Brill v. Brill, 108 N.Y. 511, 15 N.E. 538; Huson v. Young, 4 Lans. 63; Baker v. Frick, 45 Md. 337, 24 Am. Rep. 506; Frank v. Benesch, 74 Md. 58, 28 Am. St. 237, and note, p. 239, 21 A. 550; Short v. Devine, 146 Mass. 119, 15 N.E. 148; Green v. Goff, 153 Ill. 534, 39 N.E. 975; Whaley v. Jarrett, 69 Wis. 613, 2 Am. St. 764, and note, p. 766, 34 N.W. 727; Johnson v. Borson, 77 Wis. 593, 20 Am. St. 146, and note, p. 151, 46 N.W. 815; Sizer v. Quinlan, 82 Wis. 390, 33 Am. St. 55, 52 N.W. 590; Connery v. Brooke, 73 Pa. 80; Hartman v. Fick, 167 Pa. 18, 46 Am. St. 659, and note, 31 A. 342; Kohler v. Smith, 3 Pa.Super. 176; Washburn on Easements (4th ed.), pp. 255, 256, 291, 292; Goddard on Easements (Bennett's ed.), 330, 331; Jones on Easements, sections 400, 401, 405, 406.

It is insisted, however, by appellee that the words of the grant that he "should have a free and undisturbed right to use" the way, was an express grant of an open way, and appellant had no right, therefore, to maintain gates across the same.

It is said by Mr. Washburn, in his work on Easements, page 255, "where the grant was of 'a free and unobstructed way' it was held that the owner of the land might maintain gates across it, unless this would be inconsistent with the purposes for which the way was granted. Garland v. Furber, 47 N.H. 301."

In Brill v. Brill, 108 N.Y. 511, 15 N.E. 538, it was held that when the provision in a deed was that the owner of the dominant estate was to have "free ingress and egress" over the servient estate, the owner of the servient estate had the right to maintain gates across the way which the owner of the dominant estate, then using the way, was required to open and close; that under said provision the sole right of the owner of the dominant estate was a right of passage. The court said, at page 519, "His grantor secured to him an easement of way, that is the right to use the surface of the soil for the purpose of passing and repassing, and the incidental right of properly fitting the surface for that use. The plaintiff, as owner of the soil, has all the rights and benefits of ownership consistent with such an easement. (Atkins v. Bordman, 2 Metc. (Mass.) 457; Bakeman v. Talbot, 31 N.Y. 366. Among others must be the right to have his lands fenced or unfenced at his pleasure."

It was held in Connery v. Brooke, 73 Pa. at page 84, that a grant of the...