Weston v. Whitaker
| Decision Date | 01 April 1924 |
| Docket Number | Case Number: 14802 |
| Citation | 1924 OK 388,226 P. 1034,102 Okla. 95 |
| Parties | WESTON v. WHITAKER. |
| Court | Oklahoma Supreme Court |
¶0 1. Pleading--Petition--Real Estate Actions--Necessity for Attaching Copies of Evidence of Title--Easement as Issue.
The failure of plaintiff to attach, to his petition for the recovery of real estate, copies of his evidence of title, as required by section 467, Comp. Stat. 1921, does not constitute reversible error, where the defendant files a cross-petition asserting an easement in said property granted to him by plaintiff's grantor, and a reply was filed by plaintiff alleging that the easement had been extinguished and the case proceeded to trial on the question of the existence of the easement, and no other question of title was involved in the case.
2. Easement--Extinguishment.
An easement, which is granted for a definite purpose, is extinguished when the purpose, reason, and necessity for which it was granted has ceased.
Error from District Court, Adair County; J. T. Parks, Judge.
Action by John P. Whitaker against Samuel Weston. Judgment for plaintiff and defendant brings error. Affirmed.
W. A. Scofield, for plaintiff in error.
R. Y. Nance, for defendant in error.
¶1 This action was brought by the defendant in error against the plaintiff in error for the recovery of possession of a portion of the west 14 feet of lot 2, block 38, Stillwell, which was occupied by a building belonging to the plaintiff in error. The parties will be referred to as plaintiff and defendant, as they appeared in the trial court.
¶2 The defendant filed a motion to require the plaintiff to make his petition more definite and certain by attaching thereto the evidence of his title. This motion was overruled, and the defendant assigns the action of the trial court as error. Section 467, Comp. Stat. 1921, requires the plaintiff to attach to his petition copies of his evidence of title in actions for the recovery of real property, and this should have been done in the instant case. The failure to attach the same, however, and the error in refusing to require the plaintiff to attach the same, was rendered harmless because the defendant filed his answer and cross-petition asserting an easement in said property, and attaching copies of the written instrument under which the easement was granted to him by the grantor of the plaintiff. To this answer the plaintiff filed a reply, admitting the execution of the written instruments under which defendant claimed to have an easement, and alleged that the easement bad been extinguished because the purpose and necessity therefor no longer existed. The case proceeded to trial on the question of the...
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