Davis v. Gowen, 8804
| Decision Date | 17 March 1961 |
| Docket Number | No. 8804,8804 |
| Citation | 360 P.2d 403,83 Idaho 204,88 A.L.R.2d 1192 |
| Parties | , 88 A.L.R.2d 1192 Lester DAVIS, Plaintiff-Appellant, v. Freeman W. GOWEN and Bernice M. Gowen, husband and wife, Defendants-Respondents. |
| Court | Idaho Supreme Court |
Donart & Donart, Weiser, S. Ben Dunlap, Herbert W. Rettig, Caldwell, Frank F. Kibler, Bruce O. Robinson, Nampa, for appellant.
Earl E. Reed, Nampa, Zachary & Spence, McCall, for respondents.
During the trial of this case a map marked Plaintiff's Exh. 1 was, pursuant to stipulation of the parties, admitted in evidence, a copy of which is attached and made a part of this opinion. The parcels of land owned by the respective parties which have some bearing upon the issues in this case are identified upon said Exh. 1 by letter or number, or both, and throughout this opinion the respective parcels of land will be referred to by the identification each tract bears on said Exh. 1, instead of by the legal description of such parcels.
On September 3, 1947, appellant acquired a parcel of ground identified on Exh. 1 as D3(1), and by instrument dated November 19, 1947, appellant acquired an adjacent tract of land identified as D3(2). Thereafter and by instrument dated November 19, 1948, appellant acquired a parcel identified as D3(3) and on February 28, 1950, acquired the tract designated as D3(4). Said property was acquired by appellant for use in the maintenance of motel units and trailer court.
On April 30, 1952, respondents purchased from Emmett G. Martin and wife the tract identified as G1 which is adjacent to the Northwest side of appellant's tract D3(3), for the purpose of establishing a machine shop thereon. The deed by which respondents acquired title to tract G1 contained the following reservation:
'Expressly Subject, however * * * Right of way or easement in common with the owners of the adjoining premises for a private road 25 feet wide, adjacent and paralled to the West and Northwest boundary of the within described tract of land; * * *'.
The 25 foot right of way mentioned in said reservation is identified on Exh. 1 as 'tract R'.
At the time respondents purchased tract G1 there was a building on it which has been partially destroyed by fire. During February and March, 1953, respondents rased said damaged building and constructed a larger new pumice stone building, a portion of which extended 7 feet into the right of way identified as 'tract R'.
By deed dated February 17, 1953, respondents purchased from Emmett C. Martin and wife a tract designated as D2, a portion of which is contiguous and West of a part of tract G1. The typewritten portion of said deed which describes the property being conveyed thereby contains a description of the right of way here in controversy and also contains the following language: 'Said right of way is hereby vacated and terminated'.
Thereafter and under deed dated April 20, 1955, respondents conveyed to appellant the property referred to as D2. Said deed contained the usual provision conveying 'the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining' but did not describe or specifically refer to the right of way here involved.
Appellant under his first cause of action alleges that he and his predecessors in title have continuously since February 25, 1950, used and traveled over the right of way here involved (tract R) openly, notoriously, adversely and under a claim of right as a means of egress from and ingress to the premises (D3(1), D3(2), D3(3) and D3(4)) owned by appellant.
Under his second cause of action appellant alleges that at the time he purchased the parcel D2 he knew that the right of way (tract R) had been used by respondents as a right of way to and from said tract D2, and 'that said right of way for said purposes is necessary to the reasonable use and enjoyment of appellant's said real property'.
Appellant also alleges that on or about October 10, 1956, respondents placed a fence between said tract D2 and the right of way (tract R) for the purpose of barring and preventing appellant from using said right of way. Appellant prays that respondents and all persons claiming under them be permanently enjoined from in any manner obstructing appellant's free use of said right of way.
Respondents deny that appellant has any rights as alleged and by way of counterclaim pray for damages at the rate of $10 per day for the use of said right of way from April 3, 1957, until such time as appellant shall be restrained from using same, and for $1000 attorneys' fees in defending the action. Respondents under their cross-complaint pray for a decree quieting title to tract G1, including the right of way.
The case was tried to the court without a jury following which judgment was entered directing that no permanent injunction issue, also quieting title to the area in controversy in respondents. This appeal is from said judgment.
We shall first consider appellant's fifth assignment of error wherein it is contended that the trial court erred in decreeing that the acquisition of tract D2 by respondents, while they also owned tract G1, eliminated and vacated the right of way over tract R.
The first instrument in the record wherein any mention is made of the right of way (tract R) is the deed by which respondents acquired title to tract G1. Said deed (dated April 30, 1952) provides that tract G1 is conveyed expressly subject to a 'right of way or easement in common with the owners of the adjoining premises for a private road 25 feet wide' (tract R). On said date of April 30, 1952, appellant was the owner of tracts D3(1), D3(2), D3(3) and D3(4) and he contends that since the reservation in said deed (dated April 30, 1952) provided that the easement was to be 'in common with the owners of the adjoining premises' it could not be vacated or terminated without the concurrence of appellant as an adjoining owner.
Appellant's said contention poses a question as to what right, if any, did appellant (being a stranger to the conveyance) acquire under or by virtue of the reservation referred to in said deed of April 30, 1952? The answer to this question is found in the generally accepted rule that no estate or interest is created in a stranger to a deed by a reservation therein. If in a conveyance any reservation is made in the property conveyed, the part reserved remains in the grantors therein, and does not inure to the benefit of a stranger to the instrument. Johnson v. Peck, 90 Utah 544, 63 P.2d 251; Simmons v. Northern Pac. Ry. Co., 88 Wash. 384, 153 P. 321, 155 P. 1039; 28 C.J.S. Easements § 30, p. 686; 16 Am.Jur. 609; 39 A.L.R. 126. Therefore it must be concluded that appellant did not acquire any right to the right of way (tract R) at the time the right of way was originally reserved.
It is our view that the trial court properly concluded that the right of way along tract R was eliminated and vacated upon acquisition of tract D2 by respondents. It is undisputed that Emmett C. Martin and wife were the grantors from whom respondents acquired title to tract G1 by deed dated April 30, 1952, which contained the right of way reservation here involved. The record does not disclose that said grantors (Emmett C. Martin and wife) at the time they conveyed said tract G1 to respondent, owned any other property adjoining, or in the area of said tract G1. Nor is there any evidence that the Martins at any time conveyed to appellant or any person (other than respondents) said reserved right of way easement, or any interest therein. Consequently the Martins retained whatever rights were reserved under said deed of tract G1 until they conveyed such reserved rights, together with tract D2, to respondents under deed Dated February 17, 1953.
The said reserved right of way easement is not...
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