Heusner v. Fleck

WARNE, J. pro tem.* This is an appeal from a judgment in favor of the defendant in an action brought to cancel or reform a written contract whereby appellants conveyed a private road to respondent.

It appears that for many years prior to 1951 respondent had an easement in an old road on appellants’ property. The road ran from a highway, across appellants’ property, and then into and over respondent’s adjoining property thereby affording both appellants and respondent access to the highway although appellants, but not respondent, had other means of entrance to their property. In 1950 appellants desired to build a reservoir which would inundate a portion of the road. Appellants also desired to construct and maintain a spillway upon respondent’s land in connection with the dam. Appellants discussed the matter with the respondent who orally agreed to quitclaim his easement in the road and grant an easement for the spillway to appellants provided that they build a new road and grant him an easement therein. It was further agreed that appellants would bear the entire cost of the maintenance of the new road for a period of two or three years after its construction. In accordance with such understanding, a written agreement was prepared by respondent’s attorney. Appellants refused to sign the written agreement because of the maintenance provision. Respondent then agreed to reduce the period during which appellants were to bear the entire cost of maintenance from two or three years to one [580]but insisted that thereafter appellants should be jointly liable with him for maintenance of the road. When appellants objected to the joint maintenance provision, respondent agreed to a deletion thereof but demanded that he be given a deed to the road. Thereafter, respondent’s attorney drafted an agreement which was executed by the parties under date of April 13, 1951, and recorded at the request of respondent’s attorney on August 6, 1952.

The executed agreement described the parties’ properties, recited that respondent had an easement in the road extending across appellants’ property, and declared that appellants intended to construct a dam and spillway which would destroy the road. The agreement further declared that respondent would permit the proposed construction provided that appellants “grant to” respondent “the fee title to” the new road, and that “as a further consideration” to appellants for construction of the new road, respondent would grant to appellants “the right to construct” upon respondent’s property “a spillway as an appurtenant to said land.” The agreement then provided that the respondent did “by these presents remise, release, and quit claim” to appellants all his “right, title and interest... in and to the existing roadway” and that appellants did thereby “grant and convey unto” respondent a specifically described strip of land upon which appellants agreed to construct the new road and to gravel and maintain it during the entire first year following its construction. In accordance with the agreement appellants built the dam and spillway and constructed the new road which was approximately 2,400 feet in length and connected with that portion of the old road which was not replaced, which portion, 405 feet in length, bridged the gap between the new construction and the highway. The parties used the new road, as they had the old road, until the latter part of 1953 when respondent chained and padlocked the gate at the entrance to the highway. Appellants cut the chain and continued to use the road. However, at the request of respondent his attorney protested appellants’ action and notified them that they had conveyed the fee to the strip of land upon which the road was located to the respondent and that appellants had no right to use the road or interfere with the gate. Nothing further transpired until 1956 when respondent personally, and in abusive language, ordered one of the appellants off the road, telling him he had no right to use it. Following this occurrence, appellants brought this action seeking to cancel or reform the aforemen