Lead Opinion
This is an appeal from a judgment granting plaintiff a prescriptive easement across defendants’ property and enjoining defendants from interfering with his use of it. The issues on appeal are (1) whether the evidence clearly preponderates against the trial court’s finding of a prescriptive easement; (2) whether the trial court was deprived of jurisdiction by an irregularity in the temporary restraining order; and (3) whether the decree was contrary to equitable principles on the facts of this case.
Plaintiff and defendants are owners of adjoining pieces of property on Block 2 of Plat C in Brigham City, Utah. The First National Bank of Brigham City at one time owned this block, which is presently bounded on the north by Third North Street, on the south by John Adams Park, on the west by Fourth East Street, and on the east by Fifth East Street. On April 26, 1930, the bank conveyed the east one-half to plaintiff’s predecessor in title and the west one-half to defendants’ predecessor in title. Originally, the only access to what is now plaintiff’s property was a roadway beginning at the northwest corner of Block 2, traversing in a southeasterly direction what is now defendants’ property, crossing a bridge over an irrigation ditch, and proceeding south to what is now plaintiff’s property-
Plaintiff acquired his property in 1948; defendants acquired theirs in 1973. Plaintiff originally reached his property by way of this northwest access, but a year or two after he began using it, the bridge collapsed. Thereafter, plaintiff cut his neighbors’ fence directly east of Fourth East, made a gate, cleared some brush, added some fill dirt, and began traveling to his property in a relatively straight line from Fourth East Street eastward across defendants’ property on the strip that is now the subject of this action.
Plaintiff commenced this action on July 6, 1979, alleging that defendants were blocking his roadway by digging the foundation of a house directly in its path. On that same day, a judge of the circuit court granted plaintiff a temporary restraining order. Five days later, following a hearing, the district court extended the temporary restraining order, and six days later (upon plaintiff’s filing the required bond) entered a preliminary injunction. At the conclusion of trial, the district court decreed an eleven-foot-wide easement by prescription and permanently enjoined defendants from interfering with plaintiff’s use of it.
This is a suit in equity. Richards v. Pines Ranch, Inc., Utah,
Although this Court’s statements of the standard of review of findings of fact in equity cases have varied considerably, Stanley v. Stanley,
[T]he finding of the trial court will not be disturbed if the evidence preponderates in favor of the finding; nor, if the evidence thereon is evenly balanced or it is doubtful where the preponderance lies; nor, even if its weight is slightly against the finding of the trial court, but it will be overturned and another finding made only if the evidence clearly preponderates against his finding.
In substance, this is the same standard applied in those cases which state that we reverse only when the trial court’s finding is against the clear weight of the evidence. McBride v. McBride, Utah,
In applying this standard, we are “mindful of the advantaged position of the trial judge who sees and hears the witnesses” and therefore “give due deference to his decisions,” McBride v. McBride,
An easement by prescription arises when the dominant estate owner’s use of a passage across the servient estate has been open, notorious, adverse, and continuous for a period of 20 years. Richards v. Pines Ranch, Inc., supra; Richins v. Struhs,
Defendants assert that plaintiff’s use was not sufficiently adverse. We agree that “the use must be against the owner as distinguished from under the owner,” Zollinger v. Frank,
In the alternative, defendants urged at trial that plaintiff could not have acquired an easement by prescription because his use of the right-of-way was pursuant to an easement by necessity. It is true that “[a] right of way of necessity ... cannot ripen into a prescriptive easement while the necessity continues,” Savage v. Nielsen,
Finally, defendants urge that “the equities of the case” favor their position. We do not agree with plaintiff’s response that “the equities” are “not an appropriate matter for this court to consider on appeal.” Nevertheless, without a clear and convincing showing that the plaintiff has “engaged in fraud or deceit in the business under consideration” or does not “come into court with clean hands” or that the relief granted is contrary to “fairness and good conscience,” Jacobson v. Jacobson, Utah,
The judgment of the trial court is therefore affirmed. No costs awarded.
Dissenting Opinion
dissenting.
The majority states that it is appropriate to consider the “equities” in a matter such as this, and that relief could be denied if it is contrary to “ ‘fairness and good conscience.’ ”
I think relief should be denied in this case because it is contrary to “fairness and good conscience.” The plaintiff now has adequate access to his property from an improved city street. He has no pressing need to cross his neighbor’s land and to prevent the neighbor from building on his own land. There is therefore no valid reason, in my view, to allow the plaintiff to appropriate a portion of his neighbor’s property.
The consequence of this opinion will hardly promote good relations among neighbors. Rather, it is more likely to promote a prickly litigiousness on the part of neighbors by encouraging trespass actions to prevent later prescriptive easements.
I would hold that a private prescriptive easement is subject to an implied condition of extinguishment when the user obtains new and substantially equal access by a public road.