Graff v. Budgett
Decision Date | 04 August 1943 |
Docket Number | 8551. |
Citation | 10 N.W.2d 764,69 S.D. 364 |
Parties | GRAFF et al. v. BUDGETT et al. |
Court | South Dakota Supreme Court |
T R. Johnson, Of Sioux Falls, for appellant.
Hugh S. Gamble, of Sioux Falls, for respondents.
This case was before the court on a prior occasion. Graff et al. v. Budgett et al., S.D., 299 N.W. 72. Following the former opinion the case was retried and the trial court entered judgment denying the plaintiff any right-of-way along the north side of defendants' property, but allowing plaintiff a right-of-way across the back end of defendants' property and defining such right-of-way by metes and bounds. The defendant has appealed. The only question now presented relates to the right-of-way across the back end of defendants' land as located by the trial court.
The deed of grant purporting to create the easement is as follows:
Acknowledged February 17, 1919.
It is clear that by the deed of grant the parties intended to create a right-of-way at some point on the back end of the grantors' property. In referring to that portion of the description in the deed which purports to give a right-of-way across the back end of the grantors' land, we said in the prior opinion: "*** it is certain that it does not interfere *** with defendants' garage on the east end of their lot."
We believe the right-of-way granted across "the back end of grantors' land" by the deed is indefinite in location, and has been treated so by the parties since the making of the deed. It should be noted that the description of the right-of-way in the deed provides for such right-of-way "of the width of 12 feet" along the private road referred to in the deed. But the deed has no provision regarding the width of the right-of-way across the back end of grantors' land. The term "back end of grantors' land" was used in the deed, we believe, in a general way, and not with the intention of referring to the rear twelve feet of the grantors' lot. It is our opinion therefore, that the location of the right-of-way in the deed was indefinite. It is apparent from the record that the parties did not consider the way definitely located by the deed. The facts disclose that at the time the deed was executed in 1919 a garage was located on the rear twelve feet of the land, and remained in that location until this action was commenced. Commencing in 1923 plaintiffs' predecessor in interest commenced driving...
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