161 P. 1127 | Utah | 1916
This action was brought in equity to quiet title to certain lands and to restrain the defendants from interfering with the plaintiff’s peaceable possession of the same. The plaintiff alleges title to the land and that the defendants wrongfully removed fence posts placed thereon by plaintiff, and threaten to remove them as often as plaintiff replaces them, and that defendants at divers times have crossed over said land with vehicles and on foot, and will continue to so interfere with the peaceable possession of plaintiff unless restrained, and plaintiff prays for a decree quieting title and enjoining the defendants from trespassing on said land.
The defendants admit that plaintiff owns the land in question, but they claim a right of way across a part of said land for themselves, and that the roadway so used by them is a public highway. They admit that one of the defendants removed from said roadway certain posts placed thereon by plaintiff, and that they travel said road, but deny that they are trespassers thereon. They allege that on October 8, 1887, the plaintiff conveyed by warranty deed to Jane Kersey, now deceased, and through whom the defendants claim, the land that the defendants now occupy and which lies directly to the north of plaintiff’s land, the boundary line being the north side of a canal running east and west between the two tracts, with all appurtenances thereto, and a right of way for ingress and egress over and across the lands of plaintiff with
The district court made findings of fact to the following effect, to wit: That the deed in question was executed and delivered by the plaintiff, Joseph N. Morris, to Jane Kersey on October 8, 1887, and that, after describing the land by metes and bounds, it contained the following clause:
“Together with a right of way for ingress and egress to said land from east line of said section over a strip of land one rod wide along the south side of and following the course of said Utah & Salt Lake Canal, said right of way to include the right of ingress and egress to and from said land first above conveyed with vehicles and domestic animals of all kinds at any and all times.”
That subsequent to said conveyance said Jane Kersey died, leaving the defendants, except Joseph Blunt, her heirs, and that Joseph Blunt is the administrator of the estate of the
The defendants at once perfected this appeal, assigning numerous errors which are specifically as follows: (1) That the court was wrong in its findings that the whole road was not a public highway; (2) wrong in its finding and conclusion that the strip of road about twenty rods in length from the east line of the defendants’ land westerly to the point where formerly said road crossed the canal, did not pass to the defendants under the deed mentioned as an appurtenance to the land.
Upon examining the record and the evidence, we find that this suit was filed June 20, 1914. The evidence shows that on October 8, 1887, when Jane Kersey became the owner of the land now held by the defendants by a conveyance from
It will be seen that the defendants’ complaint in this court is as to that part of the decree that turns the road across the canal at about the southeast corner of the defendants’ land, instead of permitting an extension of twenty rods to the west, and then turn north across the canal as it did formerly.
They rely upon three grounds to hold the road in question, to wit: (1) That by long continual use it has become a public highway; (2) that by their and Mrs. Kersey’s use they have an easement by prescription; (3) that said road was granted by said deed, both by the description of a road one rod wide, specially described, and also by reason of said-road being appurtenant to the land conveyed in the deed. We will examine these questions in order:
First, that by long continual use the twenty rods of road in question has become a public highway; that is, that there has been a dedication by the owner to the public use and an acceptance by the public.
All these facts negative an intention on the part of the plaintiff to dedicate to public use. On the contrary, the fair inference to be drawn from them is that he intended not to dedicate the roadway to the public. It is true that, a dedication by the owner and an acceptance by the public once made, the highway thus established continues to be a highway as long as the public use continues; and if in this ease the public use were sufficient to constitute an acceptance and the owner had in fact intended to dedicate, then the dedication would be complete; but we think there is no evidence tending to show that there ever was an intent to dedicate to public use.
Next we must consider the people who used this road. Did their traveling upon it constitute a use by the public ?
As to the occupants of the Kersey place, they had an express grant of a right of way for ingress and egress contained in their title deed (not considering now the extent or limitation of the right conveyed in the deed), so they were not traveling the road by reason of its public character, but under the express provision of their deed.
As to the workmen upon the canal, they were there under the right by "user” claimed by their company. The right of way for their canal, whatever it is, if it authorizes the occupancy of the land for canal purposes, carries with it the right, under reasonable limitations to enter the premises to construct, repair, and operate the canal, its headgates, it's laterals, etc., which are a part of or connected therewith. So
As to the persons who lived in the center of the section, the evidence does not disclose how many there are or ever were, how frequently they used the road, by what right they traveled the road, nor the circumstances of their use, nor that they have in any way improved their property depending upon the public use of the road, nor that they are in any respect so situated that closing the road will be an injury to them. Compare the case made as to them with the situation disclosed by the evidence in the case of Schettler v. Lynch, 23 Utah 305, 64 Pac. 955.
However, the people in the middle of this section are not in court, and their rights are not being determined. Their use of the road is material here only so far as it may have a bearing upon its public character, and the evidence as to their use of the road in question is very meager.
Compiled Laws of Utah 1907, section 1115, provides:
“A highway shall be deemed to have been dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of ten years.”
A “thoroughfare” is a place or way through which there is passing or travel. It becomes a “public thoroughfare” when the public have a general right of passage. Under this statute the highway, even though it be over privately owned ground, will be deemed dedicated or abandoned to the public use when the public has continuously used it as a thoroughfare for a period of 10 years, but- such use must be by the public. Use under private right is not sufficient. If the thoroughfare is laid out or used as a private way, its use, however long, as a private way, does not make it a public way; and the mere fact that the public also make use of it, without objection from the owner of the land, will not make it a public way. Before it becomes public in character the owner of the land must consent to the change. Elliott, Roads and Streets,'section 5.
From a consideration of the facts in evidence, viewed in the light of the well-established principles of law, we must con-
“The right to a public road or private way by prescription arises from the uninterrupted adverse enjoyment of it under a claim of right know to the owner for the requisite length of time. Anciently the right to the easement arose by prescription from the use of the land for so long a time that there was no existing evidence as to when such use commenced. Its origin must have been at a time ‘whereof the memory of man runneth not to the contrary.’ Later the rule was changed by limiting the time of uninterrupted possession to 20 years.” Harkness v. Woodmansee, 7 Utah, 229, 26 Pac. 292.
“Prescription refers the right to the highway to the presumption that it was originally established pursuant to law, by proper authority; while dedication refers it to a contract either expressed or implied. Dedication implies a conveyance and an acceptance, while prescription requires an unbroken possession or use under claim of right.” Elliott, Roads and Streets, ($, 191.
A prescriptive right to an easement does not arise in seven years, by analogy to the provision of the statute barring an action to recover real property when the' person asserting title was not seized or possessed of the property in question within seven years. These statutes do not apply to rights of way or any other class of easements by prescription. The right by prescription can only arise by adverse use and enjoyment under claim of right uninterrupted and continuous for a period of twenty years. Harkness v. Woodmansee, 7 Utah 227, 26 Pac. 291; Funk v. Anderson, 22 Utah 238, 61 Pac. 1006; North Point Co. v. U. & S. L. C. Co., 16 Utah 271, 52 Pac. 168, 40 L. R. A. 851, 67 Am. St. Rep. 607; Lund v. Wilcox, 34 Utah, 205, 97 Pac. 33.
We pass the fourth requirement, as to which there is a
On the other hand, courts hold that the kind of easement is not to be considered, but merely whether it is apparent, designed to be permanent, reasonably necessary to the enjoyment of the property, and arises from a severance of a unified title. Baker v. Rise, 56 Ohio St. 463, 47 N. E. 653.
That there must exist a reasonable necessity is apparent from an examination of the decided cases. Some of these cases go to the extent that, in order to create a servitude upon severance, there must be-shown an absolute necessity. However, the requirement of reasonable necessity seems to be supported by the weight of authority and by reason. Weidekin v. Snelson, 17 Ill. App. 461; Dolliff v. Boston and M. R. R., 68 Me. 173; Wentworth v. Philpot, 60 N. H. 193; Brakely v. Sharp, 9 N. J. Eq. 9; Evans v. Dana, 7 R. I. 306; Jarvis v. Seele Mill Co., 173 Ill. 192, 50 N. E. 1044, 64 Am. St. Rep. 107; Root v. Wadhams, 107 N. Y. 384, 14 N. E. 281; Wells v. Garbutt, 132 N. Y. 430, 30 N. E. 978; McElroy v. McLeay, 71 Vt. 396, 45 Atl. 898; Paine v. Chandler, 134 N. Y. 385, 32 N. E. 18, 19 L. R. A. 99; Kelly v. Dunning, 43 N. J. Eq. 62, 10 Atl. 276; Miller v. Hoeschler, 126 Wis. 263, 105 N. W. 790, 8 L. R. A. (N. S.) 327; Ogden v. Jennings, 62 N. Y. 526; Sellers v. Texas C. R. Co., 81 Tex. 458, 17 S. W. 32, 13 L. R. A. 657.
binder all the circumstances in this case, we are satisfied that the rule that, where the grant of a right of way is general, the fact that there is such a right of way visible and in use upon the land makes the grant certain, is not applicable.
For the reasons given, the decree of the district court is affirmed, with costs.