The statements contained in the petition, so far as necessary to an understanding of the questions presented for review, are, in substance, as follows: That in 1885 one Erasmus Nagle, being the owner of lot 7, and the east 38 feet of lot 6, block 358, in the City of Cheyenne, erected a *91dwelling house on a portion of said 38 feet of lot 6, and a barn on the rear portion of said lots 6 and 7; and at the same time laid out and constructed a driveway from the front of said premises to the barn; the west line of the driveway being the east line of said house, and the east line a line of fence extending north and south about one foot east of the west line of lot 7. That the driveway was constructed for the purpose of affording access to the house with fuel and other necessaries, and to the barn; and for the use of the same by Nagle in connection with that portion of the barn located on lot 7. That, after the completion of the house, Nagle conveyed the west 32 feet of the east 38 feet of lot 6, upon which said house stands, together with all the privileges, hereditaments and appurtenances thereunto in any wise appertaining or belonging, to one Guthrie; and at the same time made to Guthrie a parol grant of a perpetual easement of that portion of the driveway lying between the east line of the premises conveyed and the said fence on lot 7. That the east line of the land so conveyed is about the center line of the driveway, and that it was the purpose and intention of Nagle to have the driveway used jointly by Guthrie and himself, he, Nagle, residing upon lot 7. That Guthrie continued to reside in said house until about November, 1891, when he conveyed said 32 feet of lot 6 to the heirs at law of said Nagle, he, Nagle, having in the meantime died. That during the time Guthrie resided in said house, he continuously used the driveway in connection with the house and barn; and that Nagle and his tenants, to whom he subsequently leased the dwelling house on lot 7, continuously used the driveway for the purposes aforesaid. That thereafter the heirs of Nagle leased both of said houses to divers tenants, who used said driveway in connection with the houses and barn until about May 16, 1894, when the defendant, Emma J. Nagle, who was then the owner of said lots, executed and .delivered to plaintiff a warranty deed, intending and designing by said deed to convey to him the dwelling house and barn, *92and the land lying between the west line of the east 38 feet of lot 6 and the line of fence above referred to, and including all of the driveway. That through a mutual mistake on the part of said Emma J. Nagle and on the part of the pliantiff said deed did not convey the premises intended by both the grantor and grantee; but on the contrary conveyed only the west 32 feet of the east 38 feet of lot 6, and including only about one-half of the driveway. The petition states at length the facts showing the necessity for the driveway in connection with the house on lot 6, and then alleges: “That by virtue of the premises aforesaid, at the time of the construction of the said dwelling house, the said driveway or strip of land extending from the east line of said dwelling house to the line of fence aforesaid became a strip of land to be used for the purpose of a driveway necessary for the proper use and enjoyment of the said dwelling house and the said premises hereinabove described; and thereby an easement was created in the land extending from near the center line of said driveway to the line of fence aforesaid, which became attached and appurtenant to the house, barn, and strip of land upon which the same were located, and used in connection with said dwelling house located on said lot 6; that said strip of land extending from near the center line of said driveway to the said line of fence was conveyed to the plaintiff as an appurtenance to the premises aforesaid in the deed last described; that there was a mistake in the description of the land as set down in said deed, whereby there was not conveyed to the plaintiff the land intended to be conveyed, and whereby the plaintiff was deprived of 7.75 feet of land, the title of which should have been conveyed to him in said deed, and was so intended and designed to be conveyed to and received by him; that the said defendant, Emma J. Nagle, and the said defendant, George H. Nagle, as her attorney in fact, are estopped from claiming any right whatever in and to any portion of said strip of land, extending from near the center line of said driveway to said line of fence;” that the defendants are *93erecting a permanent fence in the driveway which will permanently obstruct it and deprive plaintiff of access to his house and barn. The defendants Black and Clark were employees of Mrs. Nagle. The prayer is for a reformation of the deed and for an injunction restraining defendants from obstructing the driveway, or trespassing thereon, and for general relief.
The answer of defendants denied the allegations of the petition in relation to the granting of any easement in or to that part of the driveway lying east of the land described in the deed to plaintiff, and denied that there was any mistake in the deed, or that it was the intention of Mrs. Nagle to convey any other property than that described in the deed.
The case was tried to the court and three findings of fact, and three conclusions of law made by the court, in substance as follows: (1) That the driveway in question was located, built and established in the year 1885 by Erasmus Nagle, the then owner of the premises, for the use and benefit of the owners and occupants of the two dwelling houses, one situated on the west 32 feet of the east 38 feet of lot 6, and the other on lot 7. (2) That continuously since the location and building of said driveway, the same has been used and enjoyed by said Nagle, his tenants and other persons deriving title to and occupying the premises including said two dwelling houses, in common, for the purpose of conveying fuel and other necessaries to said dwelling houses, and for convenient accesss to the barn, heretofore and until the 10th day of June, 1904, situated on the rear portion of said.lots. (3) That the error in the description of the land as set forth in the deed mentioned in plaintiff’s petition, and dated May 16th, 1904, whereby Emma J. Nagle conveyed to plaintiff the west 32 feet of the east 38 feet of said lot 6, was not occasioned by the mutual mistake of plaintiff and said Emma J. Nagle, nor did she intend by said deed to convey any other land or interest in land than that therein set forth and described.
*94To this third finding of fact plaintiff excepted upon the ground that the same is not sustained by, but is contrary to the evidence.
Conclusions of law: (1) That both the plaintiff, his heirs and assigns, and said Emma J. Nagle, her heirs and assigns, are entitled to have said driveway kept open and unobstructed and to use and enjoy the same so long as the same shall be reasonably necessary and convenient to the use and occupation of said dwelling- houses or either of them. (2) That the attempted building of the fence and other acts of defendants alleged in the petition were wrongful interferences by defendants with plaintiff’s right to use and enjoy said driveway, and entitled plaintiff to injunctive relief. (3) That plaintiff is not lawfully entitled to have said deed reformed so as to convey other property than that therein stated and described.
To this third conclusion of law the plaintiff excepted upon the ground that it is not sustained by the evidence and is contrary to the evidence.
A decree was entered in accordance with the above findings of fact and conclusions of law, to which the following exception was taken by plaintiff: “Now at the time of the rendering of the foregoing findings of fact, conclusions of law and decree comes the plaintiff in person and waives all exceptions and objections for error in the same, save and excepting only, that he objects and excepts to the third finding of fact upon the grounds hereinbefore stated, and also to the third conclusion of law upon the grounds herein-before stated, and to so much of the decree proper as denies the reformation of said deed as prayed for.” Upon these exceptions, plaintiff brings the case here on error.
The only question presented by these exceptions is the sufficiency of the evidence to sustain the third finding of fact, the third conclusion of law and that part of the decree which denies a reformation of the deed.
Counsel for plaintiff in error had devoted considerable space in his brief to a discussion of the powers of a court of *95equity to reform an instrument on account of mistake; and to show that parol testimony is admissible for that purpose. These propositions are not controverted and there is no doubt as to the correctness of either of them. (2 Pomeroy’s Eq. Jur. (3d Ed.), Sec. 859.) The mistake, however, must have been a mutual one. There must have been a meeting of minds and a contract actually entered into, but, by reason of the mistake, the instrument as written does not express what was really intended by the parties. Both the mistake and its mutuality must be established by evidence that is clear and satisfactory. In the case of Lyman v. United Ins. Co., 17 Johns., 377, the doctrine is clearly stated by Spencer, C. J., thus : “It is not enough in cases of this kind to show the sense and intention of one of the parties to the contract; it must be shown, incontrovertibly, that the sense and intention of the other party concurred in it; in other words, it must be proved that they both understood the contract, as it is alleged it ought to have been, and as in fact it was, but for the mistake. It would be the height of injustice to alter a contract on the ground of mistake, where the mistake arises from misconception by one of the parties in consequence of his imperfect explanation of his intentions. To make a contract, it is requisite that the minds of the contracting parties agree on the act to be done; if one party agrees to a contract-under particular modifications, and the other agrees to it under different modifications, it is evident there is no contract between them. If it be clearly shown that the intention of one of the parties is mistaken and misrepresented by the written contract, that cannot avail unless it further be shown that the other party agreed to it in the same way, and that the intention of both of them was, by mistake, misrepresented by the written contract.” The same doctrine is stated in Bancharel v. Patterson, 64 Minn., 454, and in Green v. Stone, 54 N. J. Eq., 387 (55 Am. St. Rep., 577), in which case many authorities are cited and reviewed.
In the case at bar, the plaintiff sought relief upon two grounds: One, that the driveway in question was an ease*96ment appurtenant to the house and the part of the lot upon which it was situated, and that he, therefore, had the right to have it remain open and unobstructed; and, second, on the ground that there was a. mistake in the deed, and that he was entitled, in equity, to a deed in fee simple to the entire driveway. The court found, and so decreed, that the driveway was constructed for the use and benefit of both properties and had been continuously so used by the occupants of each and that they were each entitled to have it remain open and unobstructed. No exception was taken to this finding or to that part of the decree; but, on the contrary, all objections and exceptions thereto were expressly waived by plaintiff, and he appeals from that part only of the decree which denies a reformation of the deed. The plaintiff testified that prior to the making of the deed, Mrs. Nagle pointed out to him the east line of the property she proposed to convey to him, and that she said the line was either the line of fence or a line of trees which was five or six feet east of the line of fence. He also states that in the same conversation she said, there is a deed on record and you will find that the line goes either to this line of fence or to the line of trees. He states that the deed was drawn up by him from a description procured from the Guthrie deed. He also states that Mrs. Nagle told him in his office that the driveway belonged to the Guthrie property, as it was called. There is evidence of two other witnesses who testified that, after plaintiff went into possession of the house, Mrs. Nagle stated to them that the line between the two properties was the line of fence. On the other hand, Mrs. Nagle testifies that she never had the conversations or made the statements attributed, to her by plaintiff or said witnesses, and that she did not know what the Guthrie propery included, and she denied having at any time pointed out to plaintiff the boundaries of the property. She further states that it was never her intention to convey any other property to plaintiff than that included in the Guthrie deed. There was also some evidence of acts and declarations of plaintiff after he *97went into possession tending to corroborate the testimony of Mrs. Nagle. We have stated this much of the substance of the testimony for the purpose of showing the direct conflict therein upon the issue of mutual mistake. .Under the well settled rule that where there is such conflict, this court will not reverse the judgment of the lower court unless it is clearly against the weight of the evidence; and bearing in mind the degree of proof required in cases of this- kind; and in view of the allegations of the petition, and the findings of the trial court, to which no exceptions were taken, we are of the opinion that the judgment of the District Court should be affirmed. Counsel for defendants in error has urged that this proceeding in error should be dismissed for the reason that it is>an attempt by plaintiff in error to appeal from that part only of the decree which is against him, while accepting that part which is in his favor; but as the conclusions we have reached dispose of the case, that point will not be considered. ' Affirmed.
Potter, C. J., and Craig, District Judge, concur. Scott, J., having announced his disqualification to sit in this case, Hon. David H. Craig, Judge of the Third District, was called to sit in his stead.