Prior to May 9, 1893, one Anna Pritchett was the -owner of the E % of the SE % of what was known as Block 15 in the original town of Osceola. This tract was approximately 214 feet long north and south, and 107 -feet wide. It was bounded on the east and south by city streets; and upon the north, there was an alley 20 feet in width, which ran through to another cross alley running north and south near the center of the block, but west of the west line of her property. On the date named, she conveyed to Jason Roberts, B. F. Garretson and W. IT. Ridgway, 80 feet off the north side of her tract, the deed containing the following reservation:
‘ ‘ The said Anna Pritchett reserving the right on 10 feet of the west part of said described lot for a driveway, and is to build and maintain a gate at the northwest corner of said lot and at the north end of said driveway.”
She retained the title to the remainder of the tract until October 1, 1913, when she sold the same to E. G. Banta, W.
“And I hereby quitclaim, transfer, set over and relinquish unto the trustees herein all my right and interest in and to a certain right of way or easement over the west 10 feet of the north 80 feet off of the north side of the east % of Lot 6 in Block 15 in the original town of Osceola, Iowa, for a driveway. The intention being to transfer unto said grantees all my rights and privileges in and to said easement.”
The original grantees of the north 80 feet of the property conveyed the same to the Osceola Sanitarium Company, and in their deed made this statement:
“One Anna Pritchett having a right of way or easement on 10 feet of the west part of said lot for a driveway, who has to build and maintain a gate at the northwest corner of said lot at the north end of said driveway.”
On May 24, 1897, the Sanitarium Company conveyed the 80-foot strip by warranty deed to one Roberts, the deed containing this recital:
“Except an easement of a driveway over the west 10 feet of said premises, reserved to Mrs. Pritchett.”
On February 20, 1902, Roberts conveyed the said strip to one Martin, the deed reciting that:
“One Anna Pritchett having the right of way or easement on 10 feet of the west part of said lot for a driveway, she to build and maintain a gate at the northwest comer of said lot at the north end of said driveway. ’ ’
On November 19, 1902, Martin conveyed the strip to one Sells, and his deed contained the following:
“One Anna Pritchett having a right of way or easement on 10 feet of the west part of said lot for a driveway, she to build and maintain a gate at the northwest corner of said lot at the north end of said driveway. ’ ’
Sells conveyed the strip to one Morton, January 24, 1910, this deed containing the following:
Thereafter, and on November 26, 1910, Morton conveyed the property to defendant, W. D. Harken, the conveyance containing the following:
“Subject to a right of way or easement of Anna Pritchett over the west 10 feet of said lot just above described for a driveway, also the right of the said Anna Pritchett to maintain a gate at the northwest corner of said lot, being at' the north end of said 10-foot strip.”
The remainder of the property was purchased by the trustees of the Presbyterian Church of Osceola for church purposes. When they purchased, there was a house upon it, which was moved over to within a few inches of the north line, and which was intended for use as a parsonage; and at the time this suit was commenced, or when it was reached for trial, an excavation was being made on the south end of the property, preliminary to the erection of a large church ■thereon. It was proposing to use the 10-foot strip in the other lot as a driveway to haul supplies for the parsonage and material for the construction of the church, when defendants objected, and, it is claimed, obstructed the said strip. This action is to enjoin defendants from interfering with plaintiff in the use of theAO-foot strip as a driveway to the parsonage and for material with which to erect the church.
x' uffsTunincor™" porated association: trusI. It is conceded that the Presbyterian Church is a ,voluntary religious association, which has never been incorporated under the laws of this state, and defendants insist that, as such, it has no legal entity, and no right to sue or be sued. The society might «in i ♦ . .. , ~ easily nave been incorporated under Sees. 1642 and. 1652 of the Code, but it never did so and, under the law, it is well settled that it has no legal
“But whatever may be the law applicable to such associations generally, there is one respect in which the authorities are agreed, and that is that at common law they are not, whether organized for business or other purposes, entitled to recognition in the courts in their association name. It .is well settled that, in the absence of a statute otherwise providing, to be entitled to conduct judicial proceedings in court, a party litigant must be either a natural or artificial person. The rule is correctly stated in 22 Encyc. PL & Pr. 23Q, where, in speaking of unincorporated societies,' such as those here involved, it is Said that such societies cannot maintain an action in their association name, but must sue in the name of the individuals composing them, however numerous they may be. Such societies, in the absence of statutes recognizing them, have no legal entity distinct from that of their members. The rule is followed by an unbroken line of authorities, though a different rule has been applied in many of the courts in actions purely of an equitable nature. On the question generally, see Niblack on Societies, 183; Richardson v. Smith, 21 Fla. 336; Proprietors of Mexican Mill v. Yellow Jack Mining Co. (Nev.), 97 Am. Dec. 510; Detroit Schuetzen Bund v. Detroit Agitations Verein, 44 Mich. 313 (6 N. W. 675, 38 Am. Rep. 270); Danbury Cornet Band v. Bean, 54 N. H. 524; Mayer v. Journeymen Stone Cutters, 47 N. J. Eq. 519 (20 Atl. 492); Nightingale v. Barney, 4 G. Gr. (Iowa) 106; Barbour v. Albany Lodge, 73 Ga. 474; Steamboat Pembinaw v. Wilson, 11 Iowa 479.”
In Westbrook’s case, supra, we said:
“The entire effect of the petition is that they are suing for an unincorporated society, and we have held that a suit of such character cannot be maintained. Pipe v. Bateman, 1
But Sec. 3459 of the Code expressly provides that an action may be prosecuted in the name of a “trustee (or trustees) of an express trust . . . without joining with him the party for whose benefit the action is prosecuted. ’ ’ Here, the action was prosecuted in the name of the Presbyterian Church of Osceola by its trustees, naming them, and it clearly appears from the petition, which was substantiated by the proofs, that these named trustees were trustees of an express trust created by deed, and we are of opinion that the action will lie. These trustees held the legal title and the right to the use and enjoyment of the property for the benefit of the said Presbyterian Church, and it makes no difference, in so far as the question now before us is concerned, whether this cestui que trust was an unincorporated voluntary association, a partnership, or what not; for the members thereof were entitled to the benefit of the trust, and equity would compel the trustees in a proper action to recognize the trust. It is doubtless true, under the authorities cited, that this voluntary association could not maintain the action in its own name, and this suit doubtless should have been in the name of the trustees for the .use and benefit of the cestui que trust, or simply
“The St. Peter and St. Paul Catholic Congregation was an unincorporated association, and, so far as the facts are shown, was not competent to join as party plaintiff; but that fact did not entitle the defendants to have the action dismissed. District Twp. of White Oak v. District Twp. of Oskaloosa, 44 Iowa 517. It is shown that the three plaintiffs who sue as trustees were appointed by the German portion of the original congregation, after the 'separation, to collect claims due to the new congregation. That is what they are seeking to do in this case, and we think they are competent and entitled to do so. Code, § 2544; Laughlin v. Greene, 14 Iowa 94.”
In Laughlin v. Greene, 14 Iowa 92, 94, this court said:
“But the point most relied upon is that this action should have been brought in the name of the ‘Trust Company,’ and not in the name of Laughlin, trustee. The ‘Trust Company’ is a voluntary association, possessing no corporate powers, and least of all can it sue and be sued in that name. This action must be maintained, therefore, if at all, for the benefit of the company, in the name of the trustee. And this we think is allowable, under See. 2758 of the Revision. Plaintiff is the trustee of an express trust, within the meaning of the statute. The demurrer does not raise the question as to the sufficiency
Treating the action as one brought by the trustees of an express trust, we think it will lie, and that defendants’ objection to their right to sue is without merit.
2‘ taanfStenant rights: burden of proof, II. The next question is as' to the nature of the right reserved to Anna Pritchett in her deed to Roberts et al., in the year 1893, which right was preserved to her in all subsequent deeds down to and including the one made to defendant, W. D. Harken. Was it merely the creation oí a reservation or exception personal to Anna Pritchett which lasted only for her life, or was it an easement which became appurtenant to-the other -land owned by her in the SE 1/4 of Block 15, which passed under the grant to plaintiffs, as trustees for the church ?
The instrument creating the right is in form a reservation to Anna Pritchett for a driveway, and the words “heirs or assigns” are omitted. Our statute provides, however, that the term “heirs” or other technical words of inheritance are not necessary to create and convey an estate -in fee- simple. Code Section 2913; Karmuller v. Krotz, 18 Iowa 352. Notwithstanding the language of this section, it is held that not every reservation or exception will be treated as creating an estate of inheritance. Husted v. Rollins, 156 Iowa 546. Much depends upon the intent of the parties, as well as upon the nature of the reservation. Zimmerman v. Kirchner, 151 Iowa 483; Karmuller v. Krotz, supra; Teachout v. Capital Lodge I. O. O. F., 128 Iowa 380. If the reservation be of a mere license, it creates but a personal right, even if words of inheritance be used. Garrison v. Rudd, 19 Ill. 558. But if
s. Deeds: exceptions and resertínoUonsdis" A reservation is never of a part of the estate itself, but is something taken back out of that already granted, as rent, or the right to cut timber or to do something in relation to the estate, while an exception is of some part 0f the estate not granted at all. Youngerman v. Board of Sup. of Polk County, 110 Iowa 731; Stone v. Stone, 141 Iowa 438. It is clear, under this definition, that the clause in the deed in question was in terms a .reservation to the grantor, and not an exception; but it was a reservation for the benefit of the remaining land, and gave access to the rear thereof from an alley. Such a reservation is universally held to create a permanent right for the benefit of the principal estate, whoever may be the owner, and constitutes a part thereof. See the Karmuller case, supra; Dennis v. Wilson, 107 Mass. 591; Randall v. Latham, 36 Conn. 48; Tinker v. Forbes (Ill.), 26 N. E. 503; Smith v. Porter, 10 Gray (Mass.) 66. In the Dennis case, supra, the Supreme Court of Massachusetts said:
“If the nature of the right, as appurtenant or in gross, depended upon its duration or inheritable quality, it might be necessary to consider whether the clause in this deed is one
Under such statutes as the one to which reference has hitherto been made, a reservation is presumed to be an appurtenance to the property which is to be reached over the granted land, and the burden is upon him who claims that it was personal only to prove it. Smith v. Porter, supra; Painter v. Pasadena Land & Water Co. (Cal.), 27 Pac. 539. See, also, Cassens v. Meyer, 154 Iowa 187; Wynans v. Carrell, 154 Iowa 582.
4. Easements : extent of right: deed control!Of course, where the purpose of the exception or reservation is stated, the use of the property is limited to that purpose, and a subsequent vendee can exercise no greater right than that reserved. In this ease the right was for a driveway, and this right can- ° . . not enlarged by the plaintiffs herein. It can be used only for a driveway to reach the rear of this lot, and the travel must be confined to the- 10-foot strip.
6. easements : w™h conditions As to Mrs. Pritchett’s failure to erect the gate, the testimony shows that all fences, save the one on the west end of the'80-foot strip, were removed. Mrs. Pritchett made use of the back part of this strip frequently and as occasion demanded, although, as the strip was no^ fenced, the travel was not confined . thereto, and the parties who owned the entire strip never objected to such use as she made of it. The condition as to the erection of the gate was a subsequent one, and there never was any attempt at forfeiture for noncompliance when a gate was necessary, and, since the fences were removed, no occasion existed for the gate. Her failure to erect the gate did not destroy the easement. She placed a small privy near the northwest corner of the lot retained by her, so that she could not confine the travel to this 10-foot strip at its southern end without great difficulty; and a telephone company placed a pole at the north end of the strip, so that one wishing to use the strip with a team would have to encroach upon some part of the 80-foot strip not covered by the reservation, but to this neither defendant nor any of his grantors made any objection.
7‘ session3: hostile possession: easement: recogmtion of IV. Again, it is claimed that plaintiffs and their grantors have lost title to the strip by adverse possession. It is tru,e that defendants have lately sought to obstruct the use of the strip, but both they and their grantors have in writing expressly acknowledged the presence of the easement in their deeds of conveyance down until the last one was made, in 1910. It is manifest that their claim of
8. Estoppel: grounds of estoppel :change of position: easement: abandonment. V. Neither defendants nor their grantors have expended any money nor done anything on the strength of an abandonment of the easement which amounts to an estoppel. Plaintiffs and. their grantor have used the driveway as occasion demanded, with the knowledge of defendants and their grantors, and there is no basis for a claim of estoppel.
9" Suento?rigkteasement*6 "VI. Again, it is argued that this 10-, foot strip, in connection with a narrow 20-foot alley, is useless, for the reason that an ordinary wagon cannot be used to make the turn without encroaching upon other ground. Of course, plaintiffs must confine themselves to the strip, ani^’ ^ ^héy outside thereof, they are liable for "trespass; but this is no reason for denying them such rights as they have, to use it for the purpose of a driveway. If they cannot use an ordinary wagon thereon, they may use other vehicles; and, in any event, defendants cannot close the strip because they think plaintiffs cannot use it for the purposes for which it' was reserved. As already suggested, plaintiffs must confine their use to the purpose for which it was reserved, to wit, a driveway whereby to go from the alley on the north to their property on the south of the 80-foot strip, and they must not trespass upon other lands. The decree, as we think, safeguards defendants ’ rights; but, if there be any doubt as to this, defendants are not complaining of the fault, and it •• should be so construed as to give plaintiffs nothing more than the rights the deeds reserve. If at any timé a fence should be erected so as to necessitate the use of a gate at the north end, plaintiffs must erect the same. The only doubt in the case relates to' the question of the right of the plaintiffs to sue. Treating the plaintiffs as the trustees of an express trust, we think it sufficiently appears that they, as trustees, are
The decree has full support in the testimony, and it must be and it is — Affirmed. .