Bunch v. Wheeler

• Decision Date: 31 March 1908
• Citation: 210 Mo. 622,109 S.W. 654
• Parties: BUNCH v. WHEELER.
• Court: Missouri Supreme Court

109 S.W. 654

210 Mo. 622

BUNCH v. WHEELER.

Supreme Court of Missouri, Division No. 2.

March 31, 1908.

EASEMENTS — EXTENT OF RIGHT — RESERVATION — PASSWAY.

The reservation in a deed from B. to F., of "the right of passway near the original road through said land for a passway," while not void for uncertainty, reserves no specific land, but only a right to pass over a way to be selected by F. "near" the original road.

Appeal from Circuit Court, St. Clair County; W. W. Graves, Judge.

Action by Hugh J. Bunch against George H. Wheeler. Decree for plaintiff, and defendant appeals. Reversed, with directions.

Mann & Daniel, for appellant. John A. Gilbreath and J. C. Hargus, for respondent.

GANTT, J.

This is a proceeding commenced in the circuit court of St. Clair county to obtain a mandatory injunction, requiring defendant to remove his fences across the alleged private roadway of plaintiff, and enjoining defendant from obstructing the same, and to allow plaintiff the full and free use of said right of way where the same passes through the inclosure and lands of defendant. The cause resulted in a decree wherein the court found that plaintiff Hugh J. Bunch in February, 1893, being then the owner in fee thereof, by warranty deed, conveyed to one Samuel Fisher the N. W. ¼ of the S. W. ¼ and W. ½ of lot 1 of the N. W. ¼ and 11 rods and 2 1/3 feet, beginning at the southwest corner of the N. ½ of the N. E. ¼ of S. W. ¼ of section 2, running north to the left bank of branch, then to follow the branch to south line of said tract, then to follow line west to starting point, all in section 2, township 39, range 25, in St. Clair county, Mo., containing 81 acres, more or less, and in said conveyance said plaintiff, "H. J. Bunch, reserved the right of passway near the original road through said land for a passway," and the court found by its decree that the said reservation was of a specific right of way 20 feet wide and 21.76 chains in length, beginning at a point in the Georgetown road south 54 degrees east of and 7.39 chains distant from the N. W. ¼ of said section 2, township 39, range 25, and thence in irregular line ending at a point on the south line of the N. ½ of the N. E. ¼ of the S. W. ¼ of section 2, township 39, range 25, 5.15 chains east of the southwest corner of the N. ½ of the N. E. ¼ of the S W. ¼ of said section 2. The court found that the roadway above described runs near and on the original road through said land, and was the same used by plaintiff before he sold the same to Fisher, and the same he had used until fenced up by defendant; that defendant at the time of the bringing of this suit and prior thereto had fenced up said passway, right of way and road, and refused to allow plaintiff to travel over the same, and denied plaintiff's right to said passway. The court by its decree forever enjoined and restrained defendant, his tenants, agents, and servants from obstructing said right of way. From this decree defendants have appealed to this court. As this is an appeal in equity, all the testimony is before us, and from it we glean that the plaintiff, Bunch, in 1893 conveyed the 81 acres described in the petition to one Fisher. The one acre had a spring on it which rendered it of peculiar value to the 80 acres. It is conceded on all sides that there was an old road running through this tract from a point near the spring in a westerly direction, through the horse lot as it was located at the time of the trial of the cause on the circuit, to the Georgetown road. The circuit court found that this was the "original road" referred to in the deed and the evidence sustains that finding. At the time plaintiff conveyed this land to Fisher, there were two rail fences running from the horse or barn lot easterly to points on the east line of the 80 acres near the spring. These fences, according to the testimony on both sides, were about 100 feet apart at the horse lot on the west and 300 feet apart at the spring on the east, and inclosed a strip of ground 300 feet wide on the east end and narrowing to 100 feet at the west end, and within the strip ran the "original road" referred to in the deed. After he conveyed this land to Fisher, plaintiff continued to travel this road with the consent of Fisher until the fall of 1894, by...