Davidson v. Ellis

ALLEN, P. J.

Appeal by plaintiff from a judgment rendered against him and in defendants’ favor, based upon an order sustaining a demurrer to a complaint.

The complaint alleged the ownership by defendants in 1901 of certain premises, a part of which at that date were by them conveyed to plaintiff’s grantors, together with a perpetual right of way from a fixed point on the exterior boundary of the lands sold across the lands of defendants not so conveyed to a certain county road, which grant specified that the way “so granted to be thereafter and within a reasonable time definitely located by said grantee.” Plaintiff’s ownership in the dominant tenement is averred. It further appears that when said deed of plaintiff’s grantors was "executed, and at all times thereafter, there was an old road leading from the fixed terminus of the. right of way to said county road; that plaintiff’s grantors did not at any time while they

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owned the premises, nor did plaintiff until after 1904, definitely locate said right of way; that plaintiff has requested defendants to join in such definite location, which they refused to do; that plaintiff, before the filing of the complaint, definitely located said right of way upon the route of such old road, the center line of which is the center line of the right of way, and so located the same having a width of fifteen feet upon either side of such center line. The prayer of the complaint is that such location be confirmed and plaintiff’s right to such right of way be quieted.

The demurrer to the complaint was general, and upon the further ground that it was unintelligible, in that it could not be ascertained therefrom when or where the request was made to join in the location, or that the location had been actually made or could be made under the deed, or of what width the same could be made.

The grant of the right of way by defendants was not one made upon condition, and nothing in the language of the grant indicates that a failure to fix the definite route should work a forfeiture of the right of way. “Conditions subsequent, when relied on to work a forfeiture, must be created by express terms or clear implication.”

(Behlow