Graham v. Olson

• Decision Date: 30 January 1906
• Citation: 116 Mo. App. 272,92 S.W. 728
• Parties: GRAHAM v. OLSON et al.
• Court: Missouri Court of Appeals

92 S.W. 728

116 Mo. App. 272

GRAHAM v. OLSON et al.

St. Louis Court of Appeals. Missouri.

January 30, 1906.

Rehearing Denied February 13, 1906.

1. EASEMENTS—WAY OF NECESSITY—IMPLIED GRANT.

Where, in partition of certain land by deed, it was recognized that two of the parcels which had no outlet to a highway were of less value than two others located on a highway, whereupon it was agreed that the coparceners to which the rear parcels were conveyed should have a right of way over the two front parcels to the highway. such way rested in implied grant as a way of necessity, though it was not mentioned in the partition deeds, and was not a mere parol license.

2. SAME—TRANSFER OF TITLE—EFFECT.

Where a way of necessity resting in implied grant was based on a separate valuable consideration passing to the grantors, the easement passed as an appurtenance with each successive transfer of title to the land.

3. SAME—PRESCRIPTION—VESTED INTERESTS.

Where an easement of a right of way was based in the first instance on a valuable consideration, and had been acquiesced in by all the parties and their grantees for the statutory period of limitations, such right thereby ripened by prescription into a vested interest appurtenant to the lands for the benefit of which it was made.

4. ESTOPPEL—DEEDS.

Where, prior to the conveyance of certain land fronting on a roadway, the parties measured the quantity of ground contracted to be conveyed from the side of the roadway, and it was understood between them that no part of the road was sold or conveyed by the deed, the grantor was not estopped from denying that no part of the roadway was so conveyed by the fact that the deed so described the land as to include a portion of the road.

Appeal from Hannibal Court of Common Pleas; David H. Eby, Judge.

Action by E. A. Graham against Andrew Olson and others. From a judgment for plaintiff, defendants appeal. Reversed.

In the year 1889, Andrew Olson, Nathaniel Gilbert, Jarvis Gilbert, and Dora Keith being four heirs at law of Braxton Gilbert, deceased, partitioned by agreement 80 acres of his estate which lay immediately north of and abutting the public road known as the "Centerville Road" in Marion county. The 80 acres in question were divided into four parts of 20 acres each, by drawing a line through the center of the 80 acres from east to west and from north to south. The 20 acres of Andrew Olson and those of Jarvis Gilbert, each under the partition, fronted upon said public road; the 20 acres of Nathaniel Gilbert and Dora Keith, which were in the rear of those fronting upon the road, had no communication by roadway with the outside world. It was understood and agreed among the parties that the two tracts fronting on the road were of greater value than those in the rear, because of the superior advantages of the foremost tracts by reason of the public road, and Dora Keith and Nathaniel Gilbert agreed to the partition and accepted the lands lying off of the road upon the understanding and agreement with the other heirs that they should have a roadway 16 feet in width, to wit, 8 feet off of the east side of Jarvis Gilbert's tract and 8 feet off of the west side of Andrew Olson's tract, running from the southeast and southwest corners of said rear tracts along the dividing land line of the foremost tracts and connecting with said Centerville public road. This agreement was in parol. No part if it was reduced to writing, but was well understood and faithfully kept by all of the parties. In consummation of said partition agreement, deeds were executed among the several parties conveying the land as agreed, but no deed or other writing of any kind was executed conveying the road in question to Nathaniel Gilbert and Dora Keith. Both Jarvis Gilbert and Andrew Olson erected their fences 8 feet back from said land line, leaving said 16 feet roadway in accordance with the agreement and there maintained the same. The two heirs, Dora Keith and Nathaniel Gilbert, proprietors for whose benefit the roadway was fenced out, immediately took possession of the same as a roadway and continued to use and claim the same ever after. All of the parties treated the roadway as belonging to the last named and the two who had thus set their fences back in accordance with their agreement, testified as follows concerning the matter. Andrew Olson said: "We all made an agreement that Jarvis and I should give 8 feet apiece, so that the people who lived down below could come out, and we gave it. It was never sold. These 8 feet on each side of the line was given to make a roadway because we considered that the land on the road was worth more. I have a fence on my side of the roadway. This fence is 8 feet from the center of the line. There is 8 feet on the outside of my fence that I gave for the road." Jarvis Gilbert said: "We agreed that if they would take the two back 20's that they should have a road 16 feet wide through mine and Olson's tracts. This road we agreed between all of us should be taken 8 feet off the east line of my tract and 8 feet off the west line of Olson's tract, running through the whole length of our land. We had the land surveyed and the surveyor set the corners of the land and also the corners of the 16 foot road, and set stakes to mark where the corners were, both on mine and Olson's land. Olson afterwards fenced his tract of land and the fence was placed so as to leave out of his land the 8 feet I have mentioned. I sold my 20 acres to Albert Lefever and when he bought he fully understood about this road, and he bought with the understanding that the parties north of us had the right to this 8 feet off of my line. This agreement was kept up by me and Albert Lefever since 1889." Afterwards, in 1890, Andrew Olson conveyed to Stephen Gilbert by warranty deed, one square acre in the southwest corner of his tract, adjacent to the line along said roadway. No mention or reservation is made in said deed regarding the road, but concerning this tract, the uncontroverted testimony of Olson, the grantor, is: "When I sold the one acre to Steve Gilbert we had made up the road and we agreed that he should take his one acre back from the road because he knew I had given it away and he did not claim it. I had given the eight feet and I could not sell it, and I never sold it. The roadway is still in use." On cross-examination he said: "I had given the eight feet away and I could not sell it and he agreed to it. He took his acre from the road; we measured from there. I did not sell him abutting right up to the 20 acres he had." Albert Lefever afterwards acquired this 1-acre tract by a competent conveyance and also the 20 acres owned by Jarvis Gilbert with the full understanding of all the facts connected with said roadway and conducted himself in full accord with such understanding, making no claim adverse to the parties who claimed the road. On November 1, 1901, plaintiff Graham, succeeded by a general warranty deed from Albert Lefever to the rights of Lefever in the 20-acre tract formerly owned by Jarvis Gilbert, and the one acre tract. In September, 1903, plaintiff, claiming to own same by virtue of said conveyance, inclosed that portion of the roadway passing over the land line between the one acre and the 20-acre tracts owned by him. Defendants, under their claim to the roadway, removed the fence so erected across said road by the plaintiff, whereupon this suit was...