Feilhaber v. Swiler
| Decision Date | 08 February 1927 |
| Docket Number | No. 37440.,37440. |
| Citation | 212 N.W. 417,203 Iowa 1133 |
| Parties | FEILHABER v. SWILER ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Des Moines County; Oscar Hale, Judge.
Action in equity to establish and confirm a right of way across the land of the defendants. From a judgment dismissing the petition, the plaintiff appeals. Affirmed.Hirsch & Riepe, of Burlington, for appellant.
Seerley & Clark, of Burlington, for appellees.
The plaintiff and appellant owns a tract of about 40 acres of land in the northwest part of a quarter section in Des Moines county. The appellees Swiler hold the title to the remainder of the quarter section, and the other appellees are purchasers under contract from them. There is no public road to appellant's land. The main road between Ft. Madison and Burlington runs diagonally through the land of appellees. The controversy is over a claimed right of way across appellees' land from the public highway to the land of appellant. The following plat shows the general situation and the location of the claimed right of way:
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Appellant contends that he is entitled to the right of way in question (1) as a way of necessity and (2) by prescription. The appellees insist that appellant has a right of way conveyed by a former owner of the land to a remote grantor of the plaintiff's leading south from the point where appellant's south line crosses the north and south middle line of the southwest quarter of the quarter section to the public road, and they deny all claim on his part to the right of way claimed by him.
I. The claim to the right of way of necessity is based on the following facts: In 1852, title to so much of the tract now owned by appellant as lies in the west half of the west half of the quarter section was acquired by Mary E. Parr, and, in 1857, her husband, Christopher Parr, acquired title to so much of such tract as lies in the east half of the west half of the quarter section from George Chandler, who at that time owned the land between it and the public road. The appellant holds title to the whole tract so held by the Parrs by mesne conveyances from a trustee of Christopher and Mary E. Parr, and appellees' title is derived from George Chandler.
Appellees' denial of a right of way of necessityis predicated on the contention that at the time Mary E. Parr acquired her title she had the right of way above referred to from the southeast corner of her land south to the public road. The record in respect to this road or right of way is as follows: In 1844 one Bailey held title to the west half of the west half of the quarter section and conveyed to one Currie that portion thereof now belonging to appellant, and by the same deed conveyed “the privilege to construct a road 30 feet wide from the S. E. corner of the tract above conveyed due south until it intersects the road leading from Vance's ferry to Burlington.” This is the same public road with which the right of way claimed by appellants connects. Currie, in 1845, conveyed the same tract to Brown, and the latter, in 1846, conveyed it back to Bailey. Neither of these conveyances contained any reference to the right of way previously conveyed by Bailey to Currie.
In 1847, Bailey conveyed so much of the west half of the west half of the quarter section as had not been conveyed by him to Currie to George Chandler, with no reservation of any right of way thereover. In 1849, Bailey conveyed the same land previously deeded to Currie to one Green, and Mary E. Parr acquired title thereto by conveyance from Green. Neither of the last-mentioned deeds refers to a right of way.
It thus appears that Bailey conveyed a portion of the tract now owned by appellant and a right of way across other land then owned by him; that he subsequently received a conveyance of the same tract; that he thereafter conveyed the tract over which such right of way had existed, the servient estate, without reservation, and later conveyed the tract originally owned and reacquired by him, the dominant estate, without mention of the right of way.
[1] It is conceded that after the conveyance to Currie of the one tract and an easement in the other, the easement ran with the land and would pass by a conveyance that described only the land. Cassens v. Meyer, 154 Iowa 187, 134 N. W. 543. It is, however, contended by appellant that, on the reconveyance of the dominant estate to Bailey while still the owner of the servient estate, there was a merger by reason of the unity of title in fee to both tracts in Bailey, with consequent unity of possession and enjoyment, and an extinguishment of the easement. This would be true as long as Bailey continued the owner of both tracts.
“No easement exists so long as there is a unity of ownership, because the owner of the whole may, at any time, rearrange the qualities of the several parts.” Marshall Ice Co. v. LaPlant, 136 Iowa, 621, 111 N. W. 1016, 12 L. R. A. (N. S.) 1073.
But Bailey, by the conveyance to Chandler of the tract in which the easement had existed, severed the dominant from the servient estate. In the case last cited we further said:
See, also, Carrigg v. Bank, 136 Iowa, 261, 111 N. W. 329;Teachout v. Duffus, 141 Iowa, 466, 119 N. W. 983;Keokuk E. R. & P. Co. v. Weisman, 146...
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Burgess v. United States, 09-242L
...in the same property in which it previously held an easement extinguishes the easement, leaving only the fee. See Feilhaber v. Swiler, 212 N.W. 417, 418 (Iowa 1927) (acquisition of fee resulted in "extinguishment of the easement"); Keokuk Elec. Ry. & Power Co. v. Weismann, 126 N.W. 60, 64 (......
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Schwob v. Green
...has failed to prove his right to an easement by necessity for the reasons already set out in Division I. See Feilhaber v. Swiler, 203 Iowa 1133, 1138, 212 N.W. 417, 418, 419 (1927). III. Since we say defendant's use of the roads was beyond the scope of his implied easement, it follows the t......
- Feilhaber v. Swiler