Graff v. Budgett 68 SD 123, 8379

• Decision Date: 30 June 1941
• Docket Number: 8379
• Citation: 68 S.D. 123,299 N.W. 72
• Parties: A.N. GRAFF, et al., Respondents, v. GEORGE E. BUDGETT, et al., Appellants.
• Court: South Dakota Supreme Court

299 NW 72 (1941)

A.N. GRAFF, et al., Respondents v. GEORGE E. BUDGETT, et al.,

Appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. John T. Medin, Judge.

#8379—Reversed.

T. R. Johnson, Sioux Falls, SD

Attorney for Appellants

Hugh S. Gamble, Sioux Falls, SD

Attorney for Respondents

Opinion filed June 30, 1941; Rehearing Denied Aug 28, 1941

POLLEY, P J.

This action grows out of conflicting interests in a tract of ground described in the record as Lot 1, in Gale’s Subdivision of the West Half of Block “D” of Gale’s Seventh Addition to Sioux Falls. Said tract of ground fronts 85.8 feet on the easterly side of Phillips Avenue and extends from said avenue easterly a distance of 158 feet; and is 69 feet wide on the easterly end, There is no alley or other driveway along the south side or east end of said tract of ground. The north side thereof is bounded by the right of way of the Omaha Railroad, and along the southerly portion of said railroad right of way a “private roadway” extends easterly from Phillips Avenue. One W. J. Budgett was the owner of said tract of ground and on the 8th day of May, 1913, he conveyed the south 41 feet of said ground, which for convenience herein we will call the south lot, to

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George C. Budgett. The remainder of said tract fronting 44.8 feet on Phillips Avenue, and being 28 feet wide on the easterly end, will for convenience be hereinafter called the north lot. There is a dwelling house on the front end of the north lot which had been standing there more than thirty years prior to the commencement of this action; and on the northeast corner of said north lot stands a garage approximately 25 feet square and within 1.4 feet of the east boundary line of said lot.

The northeast corner of the said house is only 5 inches south of the boundary line of the said railroad right-of-way, and the south side of said house extends over and upon the south lot a distance of about 2 feet. The ownership of this 2 feet of ground was made an issue by the pleadings in this case, but before the trial defendants conceded the plaintiffs’ right to this piece of ground, and the court by its judgment quieted the title thereto in the plaintiffs, and that portion of said judgment is hereby affirmed by this court.

On the 17th day of February, 1919, George C. Budgett conveyed the south lot to H. C. Park, and on the same day W. J. Budgett executed and delivered to the said H. C. Park an instrument in writing designated “Easement”, which after reciting that the said W. J. Budgett had agreed to grant to said Park ” an easement or right-of-way over said ‘private road’ and across the east end of the premises of the grantors to provide ingress and egress to the said grantee to the east end of his said premises"; granted unto the said Park his heirs, assigns and successors in interest the right, “to pass and repass along said ‘private road’ that is next to the right-of-way of the railroad of the width of 12 feet as egress and ingress from Phillips Avenue to the back end of grantees’ property, and across the back end of the grantors’ property, both of said properties having been heretofore described,” said easement to be appurtenant to said south lot.

Plaintiffs and defendants are not in agreement as to where the right-of-way created by this “Easement” is located on the ground; plaintiffs contending that it granted to them a right-of-way over the northerly 12 feet of the

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north lot throughout its entire length; while defendants contend that said right-of-way did not, and was not intended to,...