The opinion
On Motion for Rehearing.
[6] Appellant contends that the bill of exceptions on which the sixth assignment is predicated should be held sufficient. We have given the question careful consideration, and although we believe our holding is in line with the statements made in the cited cases, and the general rules with regard to the requisites of bills of exception, we have no disposition to be unduly technical in the construction thereof, and hence have decided to consider such assignment of error. The assignment is based upon an objection to a paragraph of the charge reading as follows:
“If you believe from the evidence that the Denver & San Antonio Investment Company consented to the use of the lots as a roadway by plaintiffs, and that the plaintiffs commenced and afterwards used the road, if there was one hy reason of such consent of the former owner of the lots, if there was, and that such consent, if any, was revocable at the will of the said Denver & San Antonio Investment Company, then you will find for the defendants; but if you believe from the evidence that plaintiffs began to use said road under claim of right prior to said consent, if any, then this issue would become immaterial, and you cannot find for the defendants on this issue.”
The only point made is that there is no evidence that the consent given by the Denver & San Antonio Investment Company was not revocable. In this connection, it is stated that a mere permissive use of a road is always presumed to be revocable at the will of the owner. This statement adds nothing to the contention. It amounts to an assumption that the evidence shows merely a permission, and not a grant intended to be permanent. The testimony relating to the consent referred to by the court is not set out by appellants in their statement, and we are justified in overruling the assignment on that ground alone.
[7-9] However, as we understand the testimony considered by us in disposing of the preceding assignments, it shows a verbal grant of the right to use the land as a road or street, upon the strength of which the grantees arranged, in building their houses, to leave open a road or street which would connect with the land over which they claim the easement, and which extension would be beneficial to the grantors. This issue was material on the question whether the possession was adverse, for a permissive use cannot be adverse; but where a grant is made, which is unenforceable because in violation of the statute of frauds, the holding _ under such a grant is adverse. It is evident’ from the nature of the transaction as shown by the testimony that the grant was intended to be permanent and not a mere permissive use. If we are correct in this, the testimony being undisputed, it was the duty of the court to so instruct; but the defendants could not have been injured by reason of the fact that the jury decided the question against them, if the court should have so decided it. But to say the least, the testimony we have in mind shows a verbal grant, and, if we have overlooked testimony disputing the same, there was at least an issue for the jury, and the only defect in the charge consisted in failing to give the jury a guide by which to determine whether it was revocable or not. No such objection was made to the charge, however, nor any effort made to supply the omission. The assignment is overruled.
[10] The seventh assignment must be overruled, unless it raises a question of fundamental error, for, in addition to the defect in the bill of exceptions pointed out in our former opinion, we call attention to the further fact that the assignment is not a copy of any paragraph of the motion for new trial, and in fact relates to a point not even mentioned in such motion. We are inclined to the view that, if the assignment points out an error, it would not be a fundamental one; but, as we conclude there is no error, we will briefly state our reasons for such conclusion, leaving the question of what is fundamental error alone, in the hope that, by the time it becomes necessary to pass upon it under similar circumstances, the Supreme Court will have given us some more definite guide than that furnished by the opinions now before us.
Appellant contends that the evidence is insufficient to support the judgment because it shows without contradiction that the land over which the easement is claimed is separated by an alley from the land to which such easement is claimed to be appurtenant. Only one Texas case is cited in support of such contention, viz., Alley v. Carleton, 29 Tex. 78 , 94 Am. Dec. 260 . In said case the point was not decided, but the court in describing the kinds of easements stated that an easement “appendant” is incident to an estate, one terminus of which is the land or *238 tenement of the party claiming it. The rule contended for by appellant is sustained by some of the earlier cases as well as textbook writers; but the more liberal view now obtains very generally that, notwithstanding neither terminus of the way is upon the close to which it is claimed appurtenant, it will nevertheless be so regarded, if it clearly appears to have been the intention of the parties that it should be. Ruling Case Law, vol. 9, p. 738; Graham v. Walker, 78 Conn. 130 , 61 Atl. 98 , 2 L. R. A. (N. S.) 983 and note, 112 Am. St. Rep. 93 , 3 Ann. Cas. 641; Jones on Easements, § 5. As the question is an 'open one in this state, we feel at liberty to adhere to the more liberal rule, which is founded upon justice and common sense in preference to one based upon the shadow instead of the substance.
The motion for rehearing is overruled.