Geismann v. Trish

143 S.W. 876, 163 Mo. App. 308, 1912 Mo. App. LEXIS 232

• Court: Missouri Court of Appeals
• Decided: February 6, 1912
• Status: Published

Opinion

CAULFIELD, J.

(after stating the facts). — The defendants’ contention, that the reservation was void because indefinite in description of the way intended,, does not meet with our approval. The language used is, “Ten feet of said lot being reserved as a right-way.” It is true that the location of the way could not be determined from a mere reading of the deed. The language used leaves us in doubt as to the real intention of the parties in that respect. But in such circumstances the trial court was at liberty to receive parol evidence showing the situation and conduct of the parties and the state and condition of the premises, with a view to ascertaining the intention of the parties in using the language to be construed. [Bernero v. McFarland Real Estate Co., 134 Mo. App. 290, 114 S. W. 531; Salisbury v. Andrews, 19 Pick. 250, 253; Washburn’s Easements and Servitudes (4 Ed.), p. 277; George v. Cox, 114 Mass. 382, 387.] And if it appeared from such parol evidence that the place in regard to which the language was used had a way over it already fixed by buildings or permanent enclosures, the language was rightfully construed to be a reservation of the way thus located,- fixed and defined. [Salisbury v. Andrews, 19 Pick. 250, 253; Washburn’s Easements and Servitudes (4 Ed.), p. 277.] Esper daily if it appeared that such way was thereafter for a long time used by the grantee of the easement and those claiming under him, the grantor acquiescing in-such use. The state and condition of the premises, and the subsequent user, would show what the parties in-, tended by the deed and would operate as an assignment of the way as effectually as if the location had been fixed by the deed. [George v. Cox, 114 Mass. 382, 387; Davis v. Watson, 89 Mo. App. 15, 30; Washburn’s Easements and Servitudes (4 Ed.), p. 265; Wynkoop v. Burger, 12 Johns, 222; 3 Greenleaf’s Cruise on Real Property, p. 27 (note); Tiedeman on Real Property (2 Ed.), p. 609; Kraut’s Appeal, 71 Pa. 64; Bannon v. Angier, 2 Allen’s Reports, 128; Warner v. Railroad Company, 39 Oh. St. 70; Gaston v. Railway Company, 120 Ga. 516.]

Now, in the case at bar, there can be no doubt that the language of the deed does reserve a right of way over the defendants’ property. It is clear also that such language was used in regard to a place over which a way was already fixed by buildings or permanent enclosures. By fences and sheds and other outhouses and gates and openings, the eastern ten feet of all the lots had been clearly marked and set apart as a way at the time the deed was made. It also appears that within a year Humann sold the other three lots with the dwelling houses thereon, and they were occupied and the occupants immediately commenced the use of the way so marked and set apart, and continued in such use for at least nine years before any interruption whatever occurred, and then the interruption was , a mere temporary one of some ten minutes duration. According to all the authorities the language used in the deed was rightfully construed by the trial court to be a reservation of the way thus located, fixed, defined and used. The judgment of the trial court was right and should be affirmed. It is so ordered.

Reynolds, P. J., and Nortoni, J., concur.