Frazier v. Myers

• Decision Date: 09 June 1892
• Docket Number: 15,399
• Citation: 31 N.E. 536,132 Ind. 71
• Parties: Frazier et al. v. Myers et al
• Court: Indiana Supreme Court

31 N.E. 536

132 Ind. 71

Frazier et al. v. Myers et al

No. 15,399

Supreme Court of Indiana

June 9, 1892

From the Dearborn Circuit Court.

Judgment affirmed.

N. S Givan and J. K. Thompson, for appellants.

G. M Roberts, C. W. Stapp, H. D. McMullen and W. R. Johnston, for appellees.

OPINION

Elliott, J.

The second paragraph of the appellees' complaint contains these allegations: That the appellees became the owners of the real estate described subsequent to the 18th day of February, 1864; that on that day the land was owned by John Frazier, Daniel Frazier and Frederick Barringer, as tenants in common; that in a partition of the land deeds were executed by these persons; that one of the deeds was executed to Daniel Frazier by John Frazier and Daniel Barringer; that for a long time prior to the execution of the deed there had existed a private right of way appurtenant to the land, and it had been used by the owners and occupants thereof; that the way is still used by the appellants; that it leads to a highway, and extends across an enclosed field; that gates had been placed across the way "at each terminus thereof," and there maintained for more than twenty years; that in the deed conveying the land a reservation of the right of way was duly made; that the appellants have left the gates open and unfastened; that they claim a right to keep the way open; that their wrongful acts in so doing have caused and will cause, unless they are prevented by an injunction, serious injury to the appellees.

We must act upon the allegations of the complaint as confessed by the demurrer, and these allegations make it appear that, by the long continued user and by the acts of the parties, such a construction has been given the deed as precludes the appellants from insisting that the way shall be kept entirely open. The right of the parties, upon the case made by the complaint, is to a private way, but not to an entirely open way, inasmuch as the facts pleaded show that the way is to be closed at either end by gates to be opened only for the purpose of using the way. The construction given the grant by the parties is the one upon which the courts must act in such a case as that made by the complaint. Where parties give their contract a construction, the courts will adopt that construction and hold the parties to it. Johnson v. Gibson, 78 Ind. 282; Reissner v. Oxley, 80 Ind. 580; Willcuts v. Northwestern, etc., Ins. Co., 81 Ind. 300; AEtna Life Ins. Co. v. Nexsen, 84 Ind. 347; Vinton v. Baldwin, 95 Ind. 433; Louisville, etc., R. R. Co. v. Reynolds, 118 Ind. 170, 20 N.E. 711; Chicago v. Sheldon, 76 U.S. 50, 9 Wall. 50, 19 L.Ed. 594.

The...