Kelly v. Briggs
| Decision Date | 22 April 1882 |
| Parties | KELLY v. BRIGGS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Hardin circuit court.
The plaintiff and the defendant own adjoining stone quarries on the Iowa river. The defendant formerly owned all the land comprising both quarries, and in 1866 sold and conveyed that now owned by the plaintiff to one Thomas. Thomas conveyed to one Mitchell, and he to the plaintiff. It appears that there is a bluff of stone some 25 feet high near the river, which is the face or front of both quarries. The valuable stone, suitable for quarrying, lies low down in this ledge. The line of the plaintiff's land, according to the description in the deed, does not run quite to the bed of the river. He cut down the ledge and wasted the debris on the strip of land between his land and the river. This strip, or narrow space, belongs to the defendant. The plaintiff usually loaded his stone upon wagons, and drove the wagons to and from his quarry over a wagon way made along the bank of the river and over defendant's land, and then out from the river a short distance to a public road. The defendant stopped up this road, and thereupon the plaintiff commenced this action to enjoin the defendant from interfering with the free use of the roadway, claiming that plaintiff had no other way to take stone from his quarry than by said wagon road, and alleging that he had a large force of men engaged in his quarry, and had 20 car loads of stone contracted, and to be delivered on the cars at Iowa Falls. A temporary injunction was granted, without notice and in vacation. The defendant answered the petition by averring that at the time of his conveyance of the land to Thomas there was a public highway along the northern boundary thereof, and that the wagon way by which plaintiff claims the right of ingress and egress was not then constructed, and the plaintiff is not, therefore, entitled to a wagon way from necessity. It is further averred that the use of the wagon way by plaintiff materially interferes with the defendant in working his quarry, and that plaintiff wrongfully uses the bed of defendant's quarry to load his stone. The answer asks that the injunction be dissolved, and that the answer be taken as a cross-bill, and that plaintiff be enjoined from trespassing on defendant's land. The reply of the plaintiff admits that there is a public highway along the north boundary of his land, but alleges that it is not accessible from his quarry except by the wagon way in controversy. Alleges that he, at his own expense, built and opened said wagon way to haul stone from defendant's quarry, while he (the plaintiff) was working defendant's quarry as a lessee, and denies that the use of the wagon way by him in any manner interferes with the defendant in working his quarry. He also avers that defendant orally agreed with said Thomas that he should pass over defendant's land to move away stone whenever it would be convenient to do so. The defendant moved to dissolve the injunction, and affidavits were filed in support of the motion, and counter...
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