Elmer J. RICHINS, Blanche E. Richins and Zella F. Harries, Plaintiffs and Appellants, v. Merle R. STRUHS and Jackie Struhs, his wife, Defendants and Respondents, Leslie C. GOLD and Floris C. Gold, his wife, William F. Salt and Della Jo Salt, his wife, and Clara M. Whipple, Third-Party Defendants
No. 10402
Supreme Court of Utah
March 15, 1966
412 P.2d 314
CROCKETT, Justice.
Plaintiffs, Elmer J. and Blanche Richins, and Zella F. Harries, seek to compel defendants, Merle R. and Jackie Struhs, to remove a fence which they erected in a driveway which had been used jointly for upwards of 40 years between their two properties in Emigration Canyon; and to have an easement by prescription for joint use of the driveway declared in plaintiffs.
It should be noted that this attempt to assert and establish an interest in land, the legal title to which is vested in another, is a proceeding in equity. It is the duty and the prerogative of this court to review both the law and the facts,1 and to consider the weight and sufficiency of the evidence.2 However, in such cases we make allowance for the advantages the trial court has because of proximity to the parties, the witnesses and the trial.3 But in situations such as the instant one, where there is substantially no dispute as to the essential facts, and rights are to be determined largely upon the application of principles of law and equity, the advantages referred to are not of any great importance.
Emigration Canyon is one of several canyons in the Wasatch Mountains just east of Salt Lake City in which city residents have from early times had summer homes. The parties to this action own adjoining homes fronting on Emigration Creek which separates them from the public road. Until the defendants built the fence referred to, the approach to both properties has been for more than 40 years by a common roadway and bridge over the creek. Their predecessors in interest, John M. Whipple of the defendants and Leo A. Jones of the plaintiffs, were brothers-in-law. In 1918 they and their families jointly constructed the bridge and roadway and so maintained and used it so long as they owned the properties (until the 1950s, since when there have been several transfers). The same condition persisted until recently. In 1960 the defendants Struhs purchased the Whipple property. They caused a survey to be made and thereafter erected a fence in the driveway on what they assert is the true boundary, leaving but a small portion of the driveway on the Jones (plaintiffs predecessors) side which blocks the latter use of the driveway and prevents access to their property. The lawsuit resulted.
The trial court appears to have been of the opinion that because the Whipples and the Joneses were relatives and that they used the driveway harmoniously and without conflict, that the use was permissive and that therefore no prescriptive right to use the driveway arose. The difficulty with this view is that it does not give effect to fundamental principles applicable to prescriptive rights. The origin and purpose of their recognition arises out of the general policy of the law of assuring the peace and good order of society by leaving a long established status quo at rest rather than by
We think it pertinent to here acknowledge that in this, as in most situations of controversy, there is another side of the coin to be kept in mind; and that we do not lose sight of certain propositions advocated by the plaintiff in regard to a permissive use where that in fact exists. The presumption above mentioned that a use is adverse which arises from its continuance for a long period of time is not absolute. It would not preclude the owner of the servient estate (defendants herein) from proving that the use was by permission. If he sustains that burden and overcomes the presumption by proof that the use was initially permissive, then the burden of going forward with evidence and of ultimate persuasion shifts back to the claimant to show that the use became adverse and continued for the prescriptive period.8 This is so because a claimant should not be permitted to in effect “sneak up” on the owner by using his property under permission and then after a lapse of time claim he was using it as a matter of right.
It is true indeed that the use must have been such that it is plainly apparent that the claimant is asserting a right so the servient owner either knows or should know that his property is being so used. If the use is in fact adverse and appears to be so, that is all that is required. Even though
The circumstances concerning the establishment of this common driveway and bridge were elicited from the former owners, Mr. Jones and Mrs. Whipple, both now in their 80s. There was no disagreement of any consequence in their evidence that: their respective families collaborated in constructing this driveway and bridge between the two properties on what was assumed to be the boundary; that it was for their joint use; that it was so used and maintained so long as they owned the property. Mr. Jones affirmed that the driveway was partly on Whipples property and partly on his own. As to where the property line was, he answered:
“A. Well, I think we had about a third of it or maybe a little better.”
In order for the use to have been permissive it would have to appear that the parties understood that the driveway was upon the Whipple‘s (defendant‘s predecessors) property; that it was with this understanding that they gave their consent to its use; and similarly that the Joneses (plaintiffs’ predecessors) so understood and accepted and used it. No such view of the facts is warranted by the evidence. On the contrary when it is considered in the light of the principles of law and equity herein discussed, it is our opinion that the reasonable conclusion to be drawn from the facts here shown, where the parties (predecessors) jointly established and used a driveway on what they thought their common boundary,10 is that the use meets the requirement of being open, notorious, continuous and adverse for more than 20 years and therefore has established a prescriptive right to continue to so use it. It is therefore necessary that the judgment be vacated and a decree entered in accordance with this opinion. Costs to plaintiffs (appellants).
McDONOUGH, WADE, and CALLISTER, JJ., concur.
HENRIOD, Chief Justice (concurring).
The language of Sec. 345, Thompson, Real Property, 1961 Replacement, cited in the main opinion, that “Use of driveway situated half on each adjoining owner‘s land for 21 years by both landowners will result in a prescriptive easement under claim of right and adverse use by both adjoining landowners to the other half of the driveway,” controls or should control. Under this doctrine inversely time is of the essence, irrespective of “permissive” or “adverse” user in the common connotation of the last term. Such a result reflected in Thompson is based on happy, convivial friendship, love and affection, not hostility or fee-fighting rock-throwing, all of which means, in my opinion, that after a 21-year period should not place a Johnnie-come-lately, after 40 years user, in any role of a saintly, not sardonic supplicant for relief against his erstwhile pacific neighbor.
I think the defendants in putting up the gate without any official legal sanction defied the very equity they assert. The gate should be taken down, in equity and good conscience, and the question of damages for any unwarranted action in this respect should be canvassed.