McDonnell v. Sheets

• Decision Date: 28 July 1944
• Docket Number: 46510.
• Citation: 15 N.W.2d 252,234 Iowa 1148
• Parties: McDONNELL et al. v. SHEETS et al.
• Court: Iowa Supreme Court

15 N.W.2d 252

234 Iowa 1148

McDONNELL et al. v. SHEETS et al.

No. 46510.

Supreme Court of Iowa

July 28, 1944

Griffin & Griffin, of Sioux City, for appellants.

John J. Vizintos and Shull & Marshall, all of Sioux City, for appellees.

MULRONEY Justice.

Plaintiffs brought suit in equity for a decree establishing their rights to the continued use of an easement across defendants' land in Salix, Iowa. Defendants denied that their land was burdened with the easement. The evidence showed that both tracts of land were formerly owned by A. R. Fortin. On February 6, 1913, A. R. Fortin and his wife conveyed a tract 183 ft. by 50 ft. to plaintiffs' mother, Abigail McDonnell, which left Fortin owning land on the north, west and south of the tract conveyed. There was a highway along the east side of both tracts. The deed to Abigail McDonnell contained the following clause: 'Grantors guarantee to the grantee, or her assigns, the privilege of ingress and agree to the rear of her property, with team and wagon, in such manner as grantors may from time to time designate over their land.' Plaintiffs' mother deeded the McDonnell tract to them in 1917 and Fortin transferred his remaining land to Joseph F. Chicoine subject to the easement in 1919. The defendants purchased from Chicoine's executor on May 13, 1943; the deed stating the conveyance was subject to the easement as described in the original Fortin deed to plaintiffs' mother.

The record is undisputed that the easement was exercised by a way located across defendants' land immediately south of the south boundary of the McDonnell tract extending west from the highway a distance of about 150 feet. Anne McDonnell, who lived on this property purchased by her mother from Fortin for 29 years, testified this driveway was 12 feet wide for about 100 feet, then there was a jog of 3 feet making the driveway 15 feet wide for the west 50 feet. She testified that the south side of the driveway was fenced and that there was a hedge along the north side extending back from the highway about 100 feet. She testified the fence along the south side of the driveway remained there for about 25 years. Then there was a period of about two years when there was no fence along the south side of the driveway and in 1941, while Mr. Chicoine owned the property the plaintiffs replaced the fence. This fence remained until defendants took possession of the property about two years later. She testified that there was never any gate at the place where this driveway entered the public highway and that none of defendants' predecessors in title ever claimed there should be a gate at this place. She testified that throughout the years they had used this driveway for delivering coal, groceries, gas, and fuel to the house and also to drive to the rear of the house in automobiles. Her mother did not own an automobile when she bought this property and none of the family owned one until in 1931 Peter McDonnell came back to live with his sisters and brought his car. She testified that they contemplated building a garage for her brother's car.

Her testimony as to the fenced-in driveway was supported by the widow of A R. Fortin, who recalled this driveway with the fence along the south side that was there for thirty years and that 'there never was any gate on this driveway where it goes out to the road.' Bridget McDonnell, who had lived with her sister Anne for the past twenty years remembered when her mother bought the place. She was teaching school at the time but she was home for week-ends, and she testified about the line of bushes that was put in along the south boundary of their lot and the fence 12 feet south of this boundary at the east end and 15 feet south at the west end that enclosed the driveway. She, too, testified there never was any gate at the highway entrance to the driveway.

A general storekeeper in Salix, who had been there for 25 years and was well acquainted with plaintiffs and had delivered groceries to their home, using this driveway, testified that there was a fence along the south of the driveway and no gate at the road entrance for as long as he could remember. A trucker for a lumber and hardware company who had lived in Salix all his life testified: 'For a number of years I have been making deliveries to the McDonnell home. Their driveway is right south of the bushes south of the house, and I have used it quite often for stove gas delivery, servicing on plumbing, hardware, during the past fifteen years. I drive in with the truck when they want some of these things. There never has been a gate on that driveway to my recollection. There has been a fence along the south side of the driveway as long as I can remember. The fence had a little job in it near the southwest corner of the house, of about three feet to the south, and the driveway was a little wider at the back. That driveway has always been in that same place for perhaps 15 years that I have been using it.'

Mr. Rogers, who was Chicoine's renter from 1935 to 1938, recalled the driveway along the south side of the McDonnell tract. He even testified he repaired this fence along the south side a little and that there never was any gate where it opened onto the road. He testified that 'the McDonnells used the driveway for hauling coal, cobs, and the delivery men came in there with groceries (and) * * * they used to drive their car in there let it set maybe for a few hours.'

Defendant Sheets testified he took possession of the land in March of 1943 but he had known it all his life. He had looked it over nine years before. He stated: 'I climbed over a gate at this hedge they are talking about. At that time I didn't see any marks of a roadway being used by plaintiffs. There was no road that was traveled to amount to anything. There was grass growing there then. I didn't see any definite paths in the grass, and didn't see any fence. If there was one it must have been decayed and fallen down. I traveled past that place on the road in from where I was farming for fourteen years, along in front of both places. I noticed that there was a gate there.' He removed the fence on the south side of the driveway when he went into possession.

Joseph Chicoine, the son of the former owner of the defendants' property, testified there was a fence along the south side of the lane; that they used the same lane to get to their ice house. He testified there was a gate at the lane entrance from the highway but that was before the fence was built along the south side of the driveway.

Defendants' witness, Richards, who occupied the defendants' land from 1940 to 1943, testified there was no gate at the highway entrance to the driveway when he went into possession and it was during this period that the McDonnells put up the fence along the south side of the driveway. He said he saw no evidence of an old fence where plaintiffs were erecting the fence.

I. Upon this record the trial court rendered a decree holding that an easement was created upon the defendants' land by the Fortin deed in favor of the plaintiffs' land. The decree also established and located the driveway south of the hedge along the south boundary of plaintiffs' land because this passageway had 'been used by the plaintiffs and their grantor for a considerable period of time, and (had) been acquiesced in by the grantor of the easement and his successors during that time.' Neither party complains about this much of the trial court's ruling, save that plaintiffs point out that the decree merely establishes a 12 foot lane while the evidence shows the lane was 15 feet wide toward the rear. The evidence was not very clear as to the location of the jog or the necessity for a wider lane toward the rear. We are not disposed to disturb the trial court's decree as to the location or width of the driveway.

II. The most serious attack upon the trial court's decree is contained in the construction he placed on the words 'team and wagon' and 'in such manner as grantors may from time to time designate', found in the easement granting clause of the Fortin deed.

With respect to the words 'team and wagon' the trial court held 'That the words 'team and wagon' refer to the type of traffic, the ingress and egress of which is guaranteed in said easement, and does not limit the type of vehicle to be employed. At the time this easement was granted passenger automobiles were in rather general use but the use of trucks for heavier traffic was not yet in general use and such heavier traffic, such as fuel and bulky provisions, was still moved by team and wagon. It is therefore the holding of the Court that it was the intent and contemplation of the parties to said easement that the ingress and egress guaranteed was for the movement and delivery of the heavier provisions and commodities and not for general foot travel or passenger vehicular travel, and that it would not be in constant use for unrestricted ingress and egress, and that the owners of the dominant estate, the plaintiffs in this case, are to be limited in their use of the passageway to the movement of the more weighty and bulky provisions and commodities, and that they...