Grossbach v. Brown

Cassoday, J. 1. The complaint lacks accuracy and’ precision. But the question of making it more definite and certain is not here presented. Taking it all together, with [462] the aid of the exhibits annexed, and it alleges the facts substantially as stated above. They seem to be sufficient to entitle the plaintiff to the relief asked. The deed from Nagele to the plaintiff was for a right of way over a strip of land one and a half rods wide across lands described and then belonging to Nagele. That dee.d was recorded more than fourteen years prior to the defendant’s purchase of the same lands from Nagele. Of course the defendant took his deed subject to such right of way in the plaintiff. True, the deed of such right of way to the plaintiff over the lands thus described purported to give the commencement of the center line of such right of way and the courses and distances of such center line therefrom “ to the state road.” But, by some inadvertence, instead of designating such point of commencement as 3.12 chains south of the northeast corner of said forty acres purchased by the defendant and designated above as H, as actually intended, it described the same as conimencing more than half a mile northeasterly therefrom. By adopting such erroneous point of commencement, the courses and distances therefrom given would not cross or even touch any of the lands over which the right of way was thus granted, nor would it reach “the state .road” anywhere near the point described in the deed, if at all. Such description also erroneously omitted one of the courses and one of the distances which should have been therein given, and also improperly inserted a distance, as appears in the above statement. With these corrections it would be apparent from an inspection of the deed that the right of way should commence where it is alleged it was intended to commence, instead of commencing at the point therein described; for otherwise the line by such courses and distances would not cross or touch the lands over which such right of way was thereby granted, or reach the state road at the point thdrein designated. Where the description in a grant is otherwise definite and [463] certain, or may be made so by the light which contemporaneous facts and circumstances furnish, it will not be frustrated by the mere addition of a false or mistaken circumstance. Docter v. Hellberg, 65 Wis. 421; Thomson v. Jones, 4 Wis. 110. The facts alleged present a highly meritorious case for the reformation of the deed, since the plaintiff was entitled to a right of way over the land in question as of necessity against Nagele. Jarstadt v. Smith, 51 Wis. 96; Valley Pulp & Paper Co. v. West, 58 Wis. 610; Kimball v. Cochecho R. Co. 27 N. H. 448, 59 Am. Dec. 387, The plaintiff had the same right as against the defendant. Ibid. Besides, the deed of the right of way was based upon a valuable consideration. The description, therefore, must be regarded as sufficiently certain to authorize the enforcement of specific performance. Docter v. Hellberg, supra. 2. It is claimed that equity should not aid the plaintiff, by reason of his laches. But there was no interference Avith the plaintiff’s right of way until after the purchase of the land by the defendant. This suit was commenced within six years after that period, and there are no equities in favor of the defendant. 3. We do not think Nagele is a necessary party to this action. He had conveyed the lands over which the plaintiff had acquired such right of way to the defendant. This action is merely to perfect and quiet such right of way in the plaintiff and as against the defendant. Nagele is not a necessary party to such a controversy. By the Court.— The order of the circuit court is affirmed.