Lidgerding v. Zignego

• Decision Date: 19 October 1899
• Citation: 77 Minn. 421,80 N.W. 360
• Parties: LIDGERDING v. ZIGNEGO.
• Court: Minnesota Supreme Court

77 Minn. 421

80 N.W. 360

LIDGERDING

v.ZIGNEGO.

Supreme Court of Minnesota.

Oct. 19, 1899.

Appeal from district court, Goodhue county; W. C. Williston, Judge.

Action by Henry Lidgerding against John Zignego. Verdict for defendant. From an order refusing a new trial, plaintiff appeals. Affirmed.

Syllabus by the Court

1. S. and Y. owned and occupied adjoining farms. A public highway ran through the farm of S., to which Y. had no access from his own land. S. executed a deed, by which he bargained, sold, and released to Y. the right of way across his farm, ‘to cross on foot or with teams, which right hereby conveyed shall be understood to be the right to cross said land as aforesaid upon or as near as practicable the line between [two described 40's, according to government survey, constituting a part of plaintiff's farm].’ This deed, which was executed in 1866, contained no words of inheritance. The right of way thus granted gave Y. access from his own land to the highway referred to, and has ever since been used exclusively for that purpose by Y., and the defendant, his grantee. So far as appears, the right of way was useless for any other purpose. In 1898 plaintiff, the grantee of S., placed obstructions across the driveway to prevent defendant from using it, which defendant removed. In an action for this alleged trespass, held, that the deed was sufficiently definite as to the land to be used as a right of way.

2. Held, also, that it granted, not a mere revocable license, but an easement in the land of the grantor.

3. Held, also, that this is an easement, not in gross or personal to Y., but appurtenant to the land then owned and occupied by him; and this is so whether the grant was in fee simple, or, by reason of the absence of words of inheritance, only for life.

4. An easement in gross will never be presumed when it can be fairly construed to be appurtenant to some other estate. A right of way is appurtenant to the land of the grantee if so in fact, although not declared to be so in the deed. Whether such an easement is in gross or appurtenant to some other estate may be determined by the relation of the easement to such estate, and in the light of all the circumstances under which it was granted. The facts that such an easement was intended for the benefit of the grantee's land, and to be used in connection with its occupancy, and has been so used, and is useless for any other purpose, will overcome any presumption that it was intended to be in gross that might otherwise arise from the absence of the words ‘heirs and assigns.’ J. C. McClure, for appellant.

Albert Johnson, for respondent.

MITCHELL, J.

This was an action to recover damages for an alleged trespass upon real property. The material facts are as follows: In 1866 one Schlicthader owned and occupied a farm, and one Youngers owned and occupied another farm adjoining on the east. Near the east line of Schlicthader's farm, but 15 rods west of it, there ran through his land a north and sough highway, known as the ‘Red Wing and Zumbrota Road,’ to which Youngers had no access from his own farm. In this condition of things, in December, 1866, Schlicthader executed to Youngers a deed of right of way across the land of the former, the terms and conditions of which were that, for the expressed consideration of one dollar, S. ‘bargained, sold, released, and conveyed to Y. the right of way to cross on foot or with teams the land of the former [describing it]; which right hereby conveyed shall be understood to be, and is hereby declared to be, the right to cross said land as aforesaid upon or near the line between the N. W. 1/4 and the S. W. 1/4 of said N. E. 1/4 of section 5, as near as practicable.’ This instrument was duly recorded. Subsequently, by certain mesne conveyances, the plaintiff became the owner of the Schlicthader farm, and the defendant became the owner of the Youngers farm; the deed from the latter to the defendant containing, in addition to a conveyance of the land, the following: ‘And the grantor hereby grants, bargains, sells, and conveys unto said grantee, his heirs and assigns, all and singular the rights, privileges, and easements conveyed to the said William Youngers by Frederick Schlicthader by the written instrument [describing the instrument already referred to].’ The record seems to be somewhat elliptical, but from what the evidence discloses, and from what is asserted by the trial court and defendant's counsel, and not disputed by plaintiff's counsel, we assume that soon after the grant of right of way by Schlicthader to Youngers, in 1866, a driveway just wide enough for a wagon to pass along it was established across the land of S., and upon or near the line referred to in the deed from S. to Y., and extending from the line between the two farms west to the Red Wing and Zumbrota road, and that this driveway has been used by Y., and the...