Farmers and Mechanics Sav. Bank of Minneapolis v. Campbell, 51887

• Citation: 141 N.W.2d 917,258 Iowa 1238
• Decision Date: 03 May 1966
• Docket Number: No. 51887,51887
• Parties: The FARMERS & MECHANICS SAVINGS BANK OF MINNEAPOLIS, Plaintiff, v. Jerauld J. CAMPBELL and Virginia B. Champbell, husband and wife, Appellees, and Ted A. Hanusa and Alma Hanusa, husband and wife, Appellants, et al.
• Court: United States State Supreme Court of Iowa

Page 917

141 N.W.2d 917

258 Iowa 1238

The FARMERS & MECHANICS SAVINGS BANK OF MINNEAPOLIS, Plaintiff, v. Jerauld J. CAMPBELL and Virginia B. Champbell, husband and wife, Appellees and Ted A. Hanusa and Alma Hanusa, husband and wife, Appellants, et al.

No. 51887.

Supreme Court of Iowa.

May 3, 1966.

Baird & Baird, Council Bluffs, and Lawrence R. Brodkey, Omaha, Neb., for appellants.

Kistle & Telpner, Council Bluffs, for appellees.

MASON, Justice.

This action seeks a decree establishing an existing roadway approximately 15 feet in width as appurtenant to appellants' land lying immediately north of the roadway and an easement established over it for ingress and egress to such land.

Ted A. Hanusa and wife Alma acquired their interest in the tract sought to be served by the roadway by sheriff's deed issued September 6, 1961, as the result of their redemption as junior lienholders from sale on foreclosure of the tract instituted by plaintiff, The Farmers & Mechanics Savings Bank of Minneapolis, assignee of a mortgage given by Jerauld J. Campbell and wife, Virginia B., on December 15, 1956, to the City National Bank of Council Bluffs. This area will be referred to as the 'appellants' tract'.

September 24, 1962, Hanusa and wife filed an application in the foreclosure proceedings seeking a determination that said roadway was appurtenant to the land described in the mortgage and sheriff's deed and establishment of the easement.

The trial court denied the relief sought and dismissed the application at Hanusas' costs. They have appealed. Plaintiff bank is not a party to this appeal nor are other defendants named in the foreclosure action except appellants and the appellees, Jerauld J. Campbell and Virginia B., his wife.

I. Jerauld J. Campbell and wife owned a tract of land in Council Bluffs adjoining Grand Avenue, a public street, on the east. The north lot line, running generally east and west, extended west from Grand Avenue approximately 485 feet and the south line, also running generally east and west, was approximately 162 feet south of the north line. Campbells had constructed two dwellings on the western portion of the tract, occupying the one in the southwest portion as their home and Mr. Campbell's parents occupying the premises in the northwest corner of the tract, measuring 191.4 feet along the north lot line and 60 feet in width. This tract will be referred to as the 'Campbell tract'. A roadway established about the middle of July 1956 extended east and west from the south line of the Campbell tract to Grand Avenue, south of the Schema tract and appellants' land. About 25 feet south of appellants' tract, in an area of other adjacent land owned by appellants, was a parking area served by this roadway.

The entire tract, consisting of appellees' home, the Campbell tract, what later became the Schema tract, appellants' tract and the parking area, was encumbered by a mortgage held by First Federal Savings and Loan Association of Council Bluffs. In the summer of 1956 appellees planned construction of a duplex on the property subsequently acquired by appellants. Appellees made written application for a construction loan to the City National Bank of Council Bluffs.

Originally appellees proposed to obtain a partial release of a tract 60 feet in width from the lien of the savings and loan association's mortgage and encumber only that portion of the entire tract with the construction loan. The loan application, identified as exhibit three, designated a driveway 15 feet in width with a crushedrock base four inches in thickness. Attached to exhibit three was a plot plan showing the tract on which the duplex was to be built as 60 feet wide from north to south. However, the loan association refused to release from the lien of their mortgage a tract greater than 50 feet in width. A revised plan, a paper tracing identified as exhibit two, showing the location of the duplex on a tract 50 feet in width was then attached to the loan application papers. Both plot plans were marked to indicate a roadway with a crushed-rock base to the south. The Council Bluffs bank declined to make the loan applied for, but Campbell proceeded with construction of the duplex on the 50-foot tract released from the lien of the loan company's mortgage and after the basement had been excavated and the footings at least formed, the bank agreed to make a loan for the duplex construction in a lesser principal amount.

December 15, 1956, appellees executed a mortgage to the bank, encumbering appellants' tract, which was assigned to plaintiff on April 25, 1957. This mortgage contained reference to 'all buildings and improvements now or hereafter thereon, and all easements and rights-of-way now or hereafter used in connection with said premises, and all * * * appurtenances thereunto belonging, or in anywise appertaining.'

Final inspection of expenditure from loan proceeds was made April 17, 1957. Approximately two and one-half to three months later the duplex was rented. Appellees' tenants occupying the duplex prior to the receivership were permitted to use the roadway to reach the parking area where they walked across the parking ground, the roadway and about ten feet further to the duplex. In September 1957 appellees put in a sidewalk to the west apartment and in November a similar sidewalk to the east apartment, both extended to the south line of the duplex tract but not to the hard-rock surface of the roadway. Between the most southerly end of the sidewalks and the most northerly limits of the hard-rock road surface was an area of clay.

At the time of final inspection, the bank directed a plat be made of appellants' tract, of a type required by the loaning agency but not secured prior to construction. A certified land survey dated May 28, 1957, identified as exhibit 12, was prepared and submitted.

Appellants became junior lienholders when appellees purchased material from Hanusa's plumbing company for construction of the duplex and could not pay for it.

In August 1957 Campbells sold on contract to Ernest A. Schema and wife a tract measuring 156.72 feet along the north line and 50 feet in width. The Schema tract adjoins the tract occupied by Campbell's parents on the west and adjoins the west line of appellants' tract on the east. In the contract Campbells granted Schemas the right to use the existing roadway adjoining the land described therein on the south for ingress and egress to and from said real estate only.

The foreclosure proceedings were instituted on this mortgage, resulting in a decree entered July 26, 1960.

The sheriff's deed received by appellants, after describing the property by metes and bounds, provided in the habendum clause 'to have and to hold the said real estate with all the appurtenances thereto belonging * * *'

Some weeks after receiving the sheriff's deed appellants were notified by appellees they had no right to use the roadway. July 5, 1962, Campbell built a woven wire fence along the south line of the duplex property, running east and west the entire length of the lot, which cut off access by the roadway and left no way to get to the duplex except by walking along inside the fence from Grand Avenue. There was not sufficient room between the fence and the duplex for any vehicle to pass.

II. When appellees refused to remove the fence, appellants filed their application, alleging the roadway, 15 feet in width, immediately south of the south line of their property described by metes and bounds in the mortgage given by appellees, was appurtenant to it. From the date of such mortgage until on or about July 5, 1962, when the roadway was closed to appellants and their tenants by appellees' erection of a fence, it was represented by appellees as appurtenant to the tract described in the mortgage. After appointment of the receiver, issuance of the sheriff's deed and until July 5, the roadway was used as a matter of right, with appellees' knowledge and consent, by appellants and their tenants for ingress and egress. Appellants further alleged the duplex is so located on appellants' tract that the doors thereof used for ingress and egress, as well as the sidewalks leading to and from the doors, face the roadway and are reached by traversing the roadway from Grand Avenue west to the point where the sidewalks touch it. From the time the duplex was constructed to July 5, 1962, the roadway was used for ingress and egress to it and was the only way it could be reached by automobile for making deliveries or by persons proceeding on foot to the duplex from Grand Avenue and using the sidewalks.

Appellants further alleged appellees established the roadway for use of the owners of appellants' tract for ingress and egress lying along and adjoining the roadway by reason of the terms and provisions of the Schema contract.

Appellants asked a decree finding the roadway to be appurtenant, and appellants or their successors entitled to an easement over it for ingress or egress to their tract.

Appellees' answer denied generally the allegations of appellants' application.

III. The trial court concluded two issues were presented: (1) Whether an easement or right-of-way was created, and (2) whether it was transferred to the applicants. The court further concluded the language quoted from the mortgage and habendum clause of the sheriff's deed did not create an easement or right-of-way by express written grant; it was not contended the language created an easement by express grant; an easement by implication does not arise until there is a severance of the land by the owner of the whole and the use giving rise to the easement must antedate the separation of the title; since no easement or right-of-way came into being, the language in the mortgage and sheriff's deed could not effect transfer of such rights to the applicants.

IV. Appellants assign as propositions relied on for reversal: (1) Appellees' failure, as original...