Ballinger v. Kinney

Root, J. This is an action to enjoin the defendant from obstructing a right of way which the plaintiff asserts over the defendant’s real estate. The plaintiff prevailed, and the defendant appeals. The plaintiff alleges in his petition that in 1902 one-Jam.es, the owner of the south 49 feet of lots 7 and 8 in block 45 in the village of Lexington, sold the south 2A¡¿ feet thereof to the defendant, subject to a contract between said parties which is set out at length in the petition. By its terms the north wall of a brick building upon, the tract conveyed by James became a party wall. The contract further provides: “That the said O. S. Kinney shall have the right to erect and maintain a coal shed, not exceeding six by six feet, on the east end of the tract owned by said James as aforesaid; and that the said James shall have the right of way of egress aud ingress, jointly with the said O. S. Kinney, over the east seven feet of the tract owned by said Kinney as aforesaid.” The parties further agree that the contract “shall remain in full force, and binding upon the parties hereto, and their successors in title, until * * * canceled or modified by mutual consent of such parties, or their successors, expressed in writing and duly signed and acknowledged as required by deeds to real estate.” The plaintiff further charges that he purchased the north fraction of the south 49 feet of said lots in 1906, and thereby succeeded to the easement vested in his grantor; that the defendant has converted said strip of land into a room for the manufacture of ice cream, and obstructs said path by maintaining thereon a gasoline engine, an ice cream freezer and other obstacles, so that it “has become useless [344] to plaintiff and his tenants, and has thus practically excluded the plaintiff and his tenants from' passing over said right of way,” etc. The prayer is for equitable relief and an injunction. The defendant, among other things, in his answer expressly denies “that the plaintiff has any interest in, claim to, or right of egress and ingress over the seven feet of ground mentioned in the petition.” 1. The defendant contends that the facts stated in the petition are not sufficient to constitute a cause of action in the plaintiff’s favor, for the reason that the plaintiff does not allege the use of the way is necessary for the transaction of the business conducted in his building, or that he has been excluded from the way, or that the contract creating the easement is still in force. There is no presumption that the contract has been canceled, and the petition does charge the defendant with permanently obstructing a considerable part of the way. While the pleader does not state that the plaintiff has been irreparably injured by the defendant’s acts, the allegations in the petition are sufficient to bring the plaintiff within the protection of the rule announced in Agnew v. City of Pawnee City, 79 Neb. 603. Furthermore, the defendant in his answer specifically denies the plaintiff’s estate of an easement, and the plaintiff is entitled to have his title thereto quieted and confirmed if any such right exists. 2. It is further argued that the plaintiff did not succeed to James’ right of way; that the contract is ambiguous, and the defendant and James by their acts construed the contract so as to give the defendant a right to maintain his engine, freezer, ice box and other obstructions in their present situation. The contract does not contain the word “heirs,” but it does create in each party and his successor in title an easement in the lands of the other, and technical words are unnecessary to create an estate of inheritance in lands in Nebraska. Comp. St. 1909, ch. 73, sec. 49. It is true, as suggested by counsel for the defendant, that no reference is made to appurtenances in the deed [345] from James to the plaintiff. The contract, however, does not create an easement in gross, but one that may be enjoyed solely in connection with other real estate. Under these circumstances the easement should be considered appurtenant to that land. The easement, being appurtenant, passed by James’ deed to the plaintiff notwithstanding said instrument contains no reference thereto. Smith v. Garbe, 86 Neb. 91. We are unable to agree with the defendant in his contention that the contract is ambiguous. The agreement is that the parties shall jointly have the right of way for ingress and egress over the east seven feet of the tract conveyed to the defendant. The testimony discloses that the defendant purchased his real estate and granted the easement in 1902. At that time a brick building covered all of - the tract except that part subjected to the right of way. The parcel of land to which James retained title was then vacant, but subsequently a building, planned for a business house, constructed upon the greater part of that real estate, was occupied by James for a time as a hardware store, and is still devoted to that purpose by the plaintiff’s tenant. The defendant shortly after purchasing his building took possession and still occupies a considerable part of the way in dispute except a strip about 18 inches wide extending the length thereof; he maintains a wall along the south end of the way, and the door by which entrance may be secured thereto cannot be opened from the outside. The litigants before this suit was commenced did not confer at length concerning the situation, but the defendant admits the plaintiff stated his tenant complained and desired the way opened, to which the defendant made no answer. The defendant testifies that, unless compelled to, he will not remove any obstruction from the way. The plaintiff’s tenant does not use the way for transporting merchandise to his store, but occasionally travels the path on foot. The obstructions were in their present position at the time the plaintiff purchased his property and the evidence tends to prove that James made no com [346] plaint on that score. The contract creating the easement is evidenced by an unambiguous written instrument recorded in the office of the register of deeds. It is> our opinion that James’ failure to oust the defendant from his unlawful use of the way did not extinguish that easement or narrow the plain meaning of the language used by James and Kinney to define the extent of their respective grants. The evidence and the law sustain the decree of the district court, and it is Affirmed.