Field v. Morris
| Decision Date | 09 November 1908 |
| Citation | 114 S.W. 206 |
| Parties | FIELD v. MORRIS. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Lawrence County; W. E. Beloate, Special Judge.
Action by Laura C. Field against J. W. Morris. From a judgment for defendant, plaintiff appeals. Reversed, and remanded for new trial.
George G. Dent, for appellant. H. L. Ponder, for appellee.
On the 2d day of February, 1892, John Darter and Mattie A. Darter, his wife, in consideration of $500, conveyed a certain tract of land to W. A. Townsend. They reserved the use of 1½ acres, using the following words: "Reserving to ourselves the use of the 1½ acres free of rent, where the mill and gin stands in S. W. corner of said tract, with the privilege of removing buildings and machinery therefrom; * * * and we are to have the use of 1½ acres free of rent as long as we or others holding under us may want to use same for running machinery at said point."
On March 26, 1899, W. A. Townsend and wife, in consideration of $500, conveyed the same land to H. W. Townsend, "and unto his heirs and assigns forever," with the following reservation in the deed: "Reserving to ourselves the use of one and 50/100 acres where mill and gin now stand, free of rent, with privilege of removing buildings and machinery therefrom; the same to be used for running machinery as long as we desire."
On the 3d day of October, 1901, H. W. Townsend conveyed three acres of the same land to B. W. Field, the same being in the southwest corner thereof, with a reservation in the deed in the following words: "Reserving, however, to said party of the first part (grantor) and his grantors the use of one and a half acres where mill and gin now stand free of rent, with privilege of moving the building and machinery therefrom; same to be used for running machinery as long as said grantors desire."
On the 28th day of November, 1902, B. W. Field, in consideration of $200, conveyed the three acres of land to his wife, Laura C. Field; and on the 25th of September, 1903, she and B. W. Field conveyed the same to Carrie E. Stevenson, and she reconveyed it, on the 2d day of October, 1903, to Laura C. Field.
On the 28th day of October, 1903, John Darter conveyed to J. W. Morris "all the right, title, privilege, and interest" reserved by him to the 1½ acres by his deed executed on the 2d day of February, 1892.
On the 19th day of December, 1905, J. W. Morris being in possession of the 1½ acres of land, Laura C. Field brought this action against him to recover them (the 1½ acres) and damages.
In the depositions taken in the case before the trial, and read as evidence, it was proved that John Darter was dead.
The issues in the case were tried by the court, sitting as a jury, by consent. He found that an "easement right" in and to the 1½ acres was created by the reservation contained in the deed executed by John Darter and Mattie A. Darter, his wife, to W. A. Townsend, on the 2d day of February, 1892, and that this right was acquired by the defendant, and rendered judgment in favor of the defendant for the same; and plaintiff appealed.
Was the right to use the 1½ acres appendant or appurtenant to land, or was it personal? If personal, it was not assignable or inheritable.
Prof. Washburn says: "A man may have a way in gross over another's land, but it must from its nature be a personal right, not assignable nor inheritable, nor can it be made so by any terms in the grant, any more than a collateral and independent covenant can be made to run with land." Boatman v. Lasley, 23 Ohio St. 614; Washburn on Easements (4th Ed.) pp. 11, 12, § 8.
"Where one granted an estate, and in his deed reserved a right of way across it to a certain point, but made no mention or reference to any estate to which it was to be appurtenant, or with which it was to be used, it was held to be a way in gross, and not the subject of grant." Wagner v. Hanna, 38 Cal. 111, 99 Am. Dec. 354; Washburn on Easements (4th Ed.) pp. 11, 12, § 8.
Where "the owner of a certain lot of ground conveyed the same to trustees to be used as a graveyard, reserving `the right and privilege to and for the said grantor, and every...
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Meadows v. Belknap
...not convey a life estate to Mrs. Perrine in the reservation clause of the deed, the daughters' brief cites the case of Field v. Morris, 88 Ark. 148, 114 S.W. 206 (1908). Field is factually distinguishable to this case. Field did not involve the creation of a life estate. 15 The court in Fie......
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Rooke v. Spickelmier
...City of Blytheville, 240 Ark. 558, 401 S.W.2d 26 (1966); Ft. Smith Gas Co. v. Gean, 186 Ark. 573, 55 S.W.2d 63 (1932); Field v. Morris, 88 Ark. 148, 114 S.W. 206 (1908); see also Chappell v. Winslow, 144 F.2d 160 (4th Cir.1944); Hyde v. Liebelt, 394 N.W.2d 888 In this case, appellees restri......
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Winningham v. Harris
...use." 320 Ark. at 245, 897 S.W.2d at 548. In Fort Smith Gas Co. v. Gean, 186 Ark. 573, 55 S.W.2d 63 (1932), and Field v. Morris, 88 Ark. 148, 114 S.W. 206 (1908), the supreme court held that easements limited to certain individuals were easements in gross. In the instant case, the chancello......
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Ft. Smith Gas Co. v. Gean, 4-2748.
...so long as its use is applied for domestic purposes. We are of the opinion, with the appellants, that the case of Field v. Morris, 88 Ark. 148, 114 S. W. 206, 208, controls the case at bar and the principle announced in Washburn on Easements, p. 17, § 1, there quoted with approval by the co......