Graff v. Budgett

10 N.W.2d 764, 69 S.D. 364, 1943 S.D. LEXIS 50

• Court: South Dakota Supreme Court
• Decided: August 4, 1943
• Docket: File No. 8551.
• Status: Published

Opinions

This case was before the court on a prior occasion. Graff et al. v. Budgett et al., 68 S.D. 123, 299 N.W. 72. Following the former opinion the case was retried and the trial court entered judgment denying the plaintiff any right-of-way along the north side of defendants' property, but allowing plaintiff a right-of-way across the back end of defendants' property and defining such right-of-way by metes and bounds. The defendant has appealed. The only question now presented relates to the right-of-way across the back end of defendants' land as located by the trial court.

The deed of grant purporting to create the easement is as follows:

"Whereas the grantors are seized of an estate in fee simple possession of a parcel or lots described as the North 44 feet of Lot 1 in Gale's Subdivision of the W 1/2 of Block `D' of Gale's Seventh Addition to Sioux Falls, and

"Whereas, the grantee is seized in fee simple of the South 41 feet of Lot 1 in Gale's Subdivision of the W 1/2 of Block `D' of Gale's Seventh Addition to Sioux Falls, and

"Whereas, the said grantors have agreed in consideration of the sum of $1.00 in hand paid to grant an easement or right of way over said private road and across the East end of said premises of the grantors to provide ingress and egress to said grantee to the East end of his said premises,

"Now, therefore, the grantors hereby grant unto said H.C. Park, his heirs and assigns, full and free right for him or them, in common with all others having a like right, at all times hereafter, with or without vehicles, for all uses connected with the use of said premises of said grantee, to pass and repass along said private road that is next to the right of way of the Chicago, St. Paul, Minneapolis Omaha Company and of the width of 12 feet as egress and ingress from Phillips Avenue to the back end of the grantee's property and across the back end of grantors' land, both of said properties having been heretofore described.

"To hold said easement to said H.C. Park, his heirs and assigns, as appurtenant to said land of H.C. Park."

Acknowledged February 17, 1919.

It is clear that by the deed of grant the parties intended to create a right-of-way at some point on the back end of the grantors' property. In referring to that portion of the description in the deed which purports to give a right-of-way across the back end of the grantors' land, we said in the prior opinion: "* * * it is certain that it does not interfere * * * with defendants' garage on the east end of their lot."

We believe the right-of-way granted across "the back end of grantors' land" by the deed is indefinite in location and has been treated so by the parties since the making of the deed. It should be noted that the description of the right-of-way in the deed provides for such right-of-way "of the width of 12 feet" along the private road referred to in the deed. But the deed has no provision regarding the width of the right-of-way across the back end of grantors' land. The term "back end of grantors' land" was used in the deed, we believe, in a general way, and not with the intention of referring to the rear twelve feet of the grantors' lot. It is our opinion, therefore, that the location of the right-of-way in the deed was indefinite. It is apparent from the record that the parties did not consider the way definitely located by the deed. The facts disclose that at the time the deed was executed in 1919 a garage was located on the rear twelve feet of the land, and remained in that location until this action was commenced. Commencing in 1923 plaintiffs' predecessor in interest commenced driving across the back end of the grantors' lot at the approximate place that the trial court established the right-of-way in this action. The use of such right-of-way across the back end of grantors' land has continued since 1923 with the apparent consent of the grantors.

[1, 2] The right to a right-of-way being clear, but its location by the deed being indefinite, it was within the authority of the trial court to locate the way. 28 C.J.S., Easements, § 83, p. 763. Burnham v. Mahoney, 222 Mass. 524,111 N.E. 396. In view of the entire record and the acts of parties in the use and acquiescence in the use of the driveway since 1923, we are of the opinion that the location as fixed by the trial court was reasonable and should not be disturbed by this court.

The judgment is affirmed.

ROBERTS, P.J., and WARREN and SMITH, JJ., concur.

POLLEY, J., dissents.