14 N.W.2d 489 | Minn. | 1944
The court found that, while this driveway had existed and been in use as such over a period of something like 20 years, such use was purely permissive, not hostile, as to the present owner of lot eight and his predecessors in interest. It concluded that plaintiffs had acquired no "right of way by prescription, adverse user or otherwise" over or upon defendants' lot. This finding, obviously determinative of the result, is challenged here as "not justified by the evidence."
Plaintiffs realize that they have a difficult hurdle to clear. They have no proof of direct grant, nor is the record such as to compel the conclusion that the court was in error in reaching the conclusion it did. As a matter of fact, it is interesting to note that before the original owner built his garage on his lot three he asked permission to use the land to the south as a driveway. Lot eight was then owned by Mr. Putnam. The testimony of Mrs. Warmington, Putnam's daughter, who overheard the conversation between the parties, fully sustains the court's findings of original permissive use only. *257
Plaintiffs do not, nor can they, claim title under their grant from the owner with whom they dealt and from whom their title is directly derived. The right of way there granted is by its terms upon the property of one not a party to this suit. Nor does this suit involve correction or reformation of any of the instruments of record affecting the property rights of the parties. The only theory upon which plaintiffs hope to find a peg upon which to hang their cause is that the driveway, because of long use by plaintiffs and their predecessors, created an easement, which, by the general terms of their deed from the owner, was carried as appurtenant to the main grant.
1. In respect to the testimony of Mrs. Warmington, challenged by plaintiffs largely if not wholly because the conversation took place so many years ago, we think our holding in Johnson v. Olson,
2. The rule to be applied in cases of this type is well stated in Johnson v. Hegland,
"* * * The use, having been permissive in its inception and not under any claim or color of right, cannot become adverse or hostile until the intention so to use is conveyed to the owner of the servient estate."
That opinion adopts with approval the following statement found in 19 C. J., Easements, § 54; 28 C.J.S., Easements, § 14:
"* * * to transform a permissive use into an adverse one there must be a distinct and positive assertion of a right hostile to the *258 rights of the owner, and such assertion must be brought to his attention, and the use continued for the full prescriptive period under the assertion of right; and the rule is not affected by the fact that the privilege is claimed by successors in interest of the party to whom the permissive use was originally given."
Our subsequent cases are in full accord: Cf. Johnson v. Olson,supra; State, by Attorney General, v. Riley,
3. That the court's findings are well sustained by the evidence cannot well be doubted. In this situation, since we are not the triers of fact but sit as a court of review only, our duty is plain. There must be an affirmance.
Affirmed. *259