Plaintiff’s action was in equity to establish an easement in a sewer drain from her home onto defendants’ adjoining farm and to enjoin defendants from interference therewith. Upon the former appeal we held plaintiff had an easement by prescription in the drain appurtenant to her property but not to the property owned by Miller, who purchased his lot from plainliff, and plaintiff was granted an injunction against obstruction of the drain provided it was not used for sewage from the Miller property.
The newly discovered evidence is that of Mrs. Campbell, a daughter of Loren Johnston, who sold to plaintiff’s husband in 1912 the ground now owned by plaintiff and that sold by her to Miller in 1948 as a home-site. At the hearing on the petition for new trial Mrs. Campbell testified in substance she lived at home when her father sold the ground to Mr. Loughman and heard her father tell Loughman to make the sewer big enough to take care of sewage from his own property and from a house which might be built north of the Loughman house (where Miller’s house was later built in 1948-49), and also from a home her father might build on his own ground south of Loughman’s. According to this new evidence, Loren Johnston; who then owned the farm now owned by defendants, contemplated an added use of the sewer such as was made here by Miller.
Of course the trial court has a good deal of discretion in granting a new trial and we will not interfere with such an order unless it is reasonably clear there was an abuse of discretion. See Eller v. Paul Revere L. Ins. Co.,
However, petitions for new trial based upon newly discovered evidence are not favored by courts and should be closely scrutinized and granted sparingly. Westergard v. Des Moines Ry. Co.,
A new trial should not be granted because of newly discovered evidence unless it “could not with reasonable diligence have been discovered and produced at the trial
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Rule 252(f), R. C. P. See also 66 C. J. S., New Trial, section 104a; 39 Am. Jur., New Trial, section 160. The burden rests on the applicant to show such diligence. Eller v.’ Paul Revere L. Ins. Co., supra,
It is also elementary that a new trial should not be granted for newly discovered evidence unless a different result because thereof is reasonably probable. Larson v. Meyer & Meyer,
So this new trial should not have been granted if the new evidence is insufficient to warrant a different result than that reached upon the prior appeal. We think this new evidence, that Loren Johnston in 1912 contemplated use of the drain not only by Loughman but also for one or two other homes, insufficient basis for granting plaintiff relief which our former decision denies.
We held upon the prior appeal plaintiff’s easement arose by-prescription. Of course this is the.law of the case which will be adhered to on this appeal. See Lawson v. Fordyce,
Incidentally plaintiff argued upon the former appeal her easement was created by prescription and now agrees with such holding.- It is not contended the new evidence shows plaintiff’s easement was not so created. An easement does hot arise by prescription without adverse use for the
Our former opinion cites authorities for the proposition that the extent of an easement created by prescription is measured by the use through which it arose. So a right cannot be established by prescription which is materially larger than that enjoyed for the full prescriptive period >and materially increases the burden upon the servient estate. It is unnecessary to- quote from these authorities again or cite others to like effect. However, decisions which support the proposition we have stated include Drieth v. Dormer,
No authority to the contrary has come to our attention. Hopkins the Florist v. Fleming,
The proposition above-stated is conclusive against plaintiff’s right to a new trial based on this newly discovered evidence. The drain in question was not used for sewage from the Miller property before 1949. The extent of plaintiff’s easement is measured by the use of the drain prior thereto and no -added use is justified which materially increases the burden upon defendants’ farm. The newly discovered evidence has no bearing upon our holding the burdeii was so increased, which is also the law of the case.
It is true our opinion upon the prior appeal, in response to arguments as to what was originally contemplated, observes “There is no evidence Loren Johnston ever consented to or con-lemplated such an additional use of the sewer.” (
We may assume, without so holding, Loren Johnslon would be bound, perhaps on some theoiy of estoppel, by his oral consent in 1912 to such an added use of the sewer as was later made in 1949. But we see no sound basis for holding these defendants are bound by the latter’s oral consent. Johnston parted with the farm in 1926 and defendants acquired it in 1941 subject to the prescriptive easement then established in favor of the Loughman property. See McKeon v. Brammer,