Mitchell v. Castellaw

In 1938 Stapp, as owner of all three lots in question, conveyed to Malcolm Smith and wife a parcel which reserved a driveway for a gas station upon an adjoining parcel. The reservation of the driveway was without time limit. Another grantee of Stapp, her daughter Anderson, took another parcel adjoining the gas station which encompassed a wash shed, the reservation to expire on the removal of the wash shed. Plaintiff Castellaw, another daughter of Stapp, succeeded to ownership of the gas station and renewed the lease until 1953. On the question of the driveway easement, Stapp’s conveyance to Smith and wife expressed in the warranty deed that grantor (Stapp) shall have the right to use that portion of the lot as a driveway. Smith and wife later conveyed the lot to Defendant Mitchell and Powers in 1947, and the reservation of the driveway was unchanged. Defendants Mitchell and Powers argue that the provision in question was nothing more than an easement “in gross,” or a personal right of Stapp’s which did not pass by her devise of the gas station to Plaintiff, or in the alternative, that the provision is repugnant to the grant of the entire lot and should be treated as if never written.