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Ambrosek v. Barker

December 29, 1972

AMBROSEK ET AL, APPELLANTS,
v.
BARKER RESPONDENT



Appeal from Circuit Court, Marion County. George A. Jones, Judge.

James D. Vick, Salem, argued the cause for appellants. On the brief was F. P. Stager, Salem.

William Wyllie, Salem, argued the cause and filed a brief for respondent.

In Banc. O'Connell, C.J.

O'connell

This is a suit for a declaratory decree to construe a reservation in a deed. Plaintiffs appeal from a construction which favors defendant A. L. Barker.

In 1966 the defendants Burrell and others owned a tract of land in a rural area in Marion county. The owners employed Mr. Bill Seid to develop the tract for residential purposes. The tract was divided into 27 large parcels of approximately five acres each. Provision was made for access to the county road by the creation of a roadway easement in the form of a half circle running through the tracts with the termini of the easement being at a county road. Some of the tracts were sold by land sale contracts and some by warranty deed. Plaintiffs purchased ten of the lots. Deeds to two of the tracts were introduced into evidence; the land sale contracts were not.

Of the deeds introduced, one contained the following clause (following the description of the tract):

"TOGETHER WITH: A roadway easement 60.00 feet in width being 30.00 feet on each side of the following described centerline; [describing it]

"SAVE AND EXCEPT for the rights of the grantors and others in and to the above described roadway easement."

One of the next deeds in point of time of execution contained the following clause (following the description):

"SAVE AND EXCEPT for the rights of the Vendor and others that portion of the above described tract lying within a 60 foot roadway easement along the Northeasterly line, said portion being 30 feet wide and adjacent to the said Northeasterly line, BUT TOGETHER WITH an easement appurtenant therein and the perpetual right

to use for roadway purposes in common with others, 60 feet in width, being 30 feet on each side of that centerline for roadway easement ...


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