Giles v. Luker

• Decision Date: 21 May 1943
• Docket Number: No. 33433.,33433.
• Citation: 9 N.W.2d 716,215 Minn. 256
• Parties: GILES v. LUKER.
• Court: Minnesota Supreme Court

9 N.W.2d 716

215 Minn. 256

GILES v. LUKER.

No. 33433.

Supreme Court of Minnesota.

May 21, 1943.

Appeal from District Court, LeSueur County; J. J. Moriarty, Judge.

Suit by Laura McPeek Giles against Frank P. Luker to enjoin defendant from interfering with plaintiff's use of a right of way, wherein defendant asked for an injunction against plaintiff's use of such right of way to haul gravel. From an order denying plaintiff's motion for a new trial, she appeals.

Modified.

Wilson & Blethen and Arthur H. Ogle, all of Mankato, for appellant.

H. G. Dressel, of Waterville, and Moonan & Moonan, of Waseca, for respondent.

LORING, Justice.

Plaintiff, the owner of a 6.3-acre shore property known as Tetonka Park, near Waterville, Minnesota, brought this suit for an injunction to prevent defendant, the owner of contiguous property, from interfering with plaintiff's right to have gravel hauled by truck over a wagon road across defendant's property, over which road plaintiff had a permanent right of way for traveling "by foot or wagon." In his answer defendant asked for an injunction forbidding plaintiff to truck such gravel over the road, on the theory that the trucking operation would do irreparable damage to the road and to defendant's summer resort business. The trial court found that plaintiff had no right to truck gravel over the road and granted an injunction forbidding it. From an order denying plaintiff's motion for a new trial, she brings the case here on appeal.

Originally plaintiff's acreage and that of defendant belonged to one Andrews, who operated a large pavilion and amusement park on the property now owned by plaintiff. January 15, 1900, Andrews conveyed the property now owned by defendant to one Hermsmeyer, with the reservation — "excepting and reserving to the grantors, their heirs, executors and assigns a permanent right of way for traveling by foot or wagon, over the wagon road as now laid out across the south part of said Lot 1, to and from the place known as Tetonka Park." Defendant ultimately acquired title subject to this reservation. March 26, 1902, Andrews conveyed the premises now owned by plaintiff to one Case, together with — "the right to use as a highway the road or driveway now located upon that portion of said Lot 1, lying east of the tract heretofore conveyed, and extending from the east line of said Lot 1, to the east line of property described and conveyed and just north of the lake shore and railroad spur track." Similar language has been used in the various mesne conveyances through which plaintiff ultimately acquired her title. Plaintiff has no access to a public highway other than the road described in her deed. This road has been used for over 40 years by people going to and from the Tetonka Park property. At times large political gatherings have been held there, as well as the entertainments given by large musical organizations. The defendant purchased his property in 1919 and since that time has used it partly for farming and partly as a summer resort. Adjacent to the road in question he has built some four or five summer cottages to rent to vacationists during the summer season. Among other things, he has developed a large gravel pit on the northern part of his land and has hauled out much of the gravel over part of this roadway.

In the spring of 1941 plaintiff opened up a pit of highgrade gravel on the southwestern part of her land and began hauling it over the roadway referred to. Some of it she sold to the city of Waterville, which hauled it away from her pit over the road in question. Defendant threatened to prevent the trucks from using the road. As a consequence of defendant's threat, plaintiff has been unable to sell any of her gravel.

1. The consequences of defendant's threat to stop the gravel trucks were such as to justify a court of equity in entertaining a suit for an injunction.

2. The trial court held that the right of way reserved by Andrews in his conveyance to defendant's predecessor in interest, by which the owner of the dominant estate now owned by plaintiff had the right to travel the road "by foot or wagon," was not broad enough to permit plaintiff to use trucks for hauling gravel. With this view we are not in accord. As we read the reservation, the word "wagon" was used in the generic sense and is broad enough to cover the vehicular transportation in common use by this generation which has replaced wagons, buggies, and the like. Swensen v. Marino, 306 Mass. 582, 29 N.E.2d 15, 130 A.L.R. 763, 767. In fact, the tenor of the easement has received a practical construction to that effect, except as to gravel trucks, by the owners of both dominant and servient estates. Indeed, it appears to us a mere accident of nomenclature that motorized vehicles bear the names they do. They could as well have been called "motor carriages" or "motor wagons" as "automobiles" and "trucks." In Strycker v. Richardson, 77 Pa.Super. 252, 255, where the terms of the easement covered "teams and wagons," and term "wagons" was held to be generic and to include other vehicles "by whatever name they may be called." In Diocese of Trenton v. Toman, 74 N.J.Eq. 702, 711, 70 A. 606, 607, a "carriageway" or "wagon or carriage alley" was held to include any vehicle on wheels.

In our own case of Poznanovic v. Maki, 209 Minn. 379, 383, 296 N.W. 415, we held that an automobile...