Van Raden v. Harper
891 P.2d 78
Wyo.
1995
Check Treatment

*1 by jury pursuant degree sexual assault jury instruction is reversed.

a lesser included of Yonkee

Lynne A. and John Fenn Collins Toner, Sheridan, appellant. & Tate, Sheridan, Hardy appellees. H. Shaw, RADEN, Megg Megg VAN n/k/a (Defendant), Appellant C.J., THOMAS, Before and MACY, LEHMAN, JJ. TAYLOR TAYLOR, HARPER Arian Justice. (Plaintiffs). Appellees challenges ruling prohibiting a Appellant her, right-of-way a as owner of 94-37. No. gates substituting guards for from cattle Wyoming. that easement. We reverse.

I. ISSUES issue: Appellant presents a road has been Where an easement for expressly granted, can owner of the substitute cattle dominant estate gates installed the owners servient estate?

Appellees agree with this statement issue.

II. FACTS (Shaw), Megg purchased Appellant, Shaw County, a home The parcel of on which the home is located is land that accessed via property appellees, Walter crosses owned Harper (Harpers). and Arian When Shaw home, two purchased the there were the easement. One exited crossed into Beckton Hall Road and the second pasture into the Har- exited a horse used son, replaced pers’ Wayne Harper. Shaw guards. Harpers both injunctive seeking suit relief. filed III.DISCUSSION is whether this case the substitution of cattle increases *2 79 tate, course, rights ownership all of estate. This is a retains on the servient the burden of the which are consistent the use Ownby, 189 Tenn. question of law. Mize v. Co., (1949). Bard Ranch 557 P.2d at 730 easement. 207, Questions of law 33 225 S.W.2d (quoting Thompson Property 2 on Real 70 de novo. Davidson v. Sher are reviewed (1961 Supp.)). competing Repl., 1976 These man, 1341, (Wyo.1993). In 1343 848 P.2d rights promote be balanced to the en must easement, construing we consider the the joyment of both the easement and the ser- in plain language granting document Co., Bard Ranch 557 at vient estate. P.2d surrounding light the circumstances. 478). Am.Jur.2d, (quoting supra, 730 25 at Hunting Fishing and Club v. Bland Lake Fisher, 710, (Tex.Civ.App. 715-16 311 S.W.2d Mize, 33, In 225 the Tennes S.W.2d 1958). Supreme see Court considered whether the guards gates, by of cattle for the substitution reads, pertinent at in The easement estate, materially in owner of the dominant part: on the estate. creased the burden servient Harper D. and Arian C. Reasoning that the owner of the dominant * n * wife, GRANTORS, husband and right improve to maintain and estate has convey Harper grant and unto Neal W. the the Tennessee wife, Harper, husband and and Pamela J. guards held that the substitution of cattle n n n [an(j n 6 n ] in assigns and successors materially not increase the burden did GRANTEES, interest, an easement and the estate. Id. at 35. Mize is on (20) right-of-way twenty feet in width directly point adopt reasoning and we * n * across lands owned GRANTORS in as the rule County, Wyoming and situate guards of cattle The substitution logically right consistent with Shaw’s

improve the easement. As the Mize court noted, opening closing two different gates each time one enters or leaves the using existing purpose For the quite estate is burdensome. Id. at Hall dominant road which intersects the Beckton Further, substituting County gives access 34. road and GRANTEE primary goal gates promotes the of the ease to the lands owned GRANT- provide passage which is to convenient County, [legal description ment EE in Sheridan See, foreclosure, estate. to and from the dominant Sal Wayne Harper lost to of land Television, vaty 165 v. Falcon Cable Cal. Shaw]. now owned (1985). 798, 31, Cal.Rptr. 212 App.3d 35 We IT IS EXPRESSLY UNDERSTOOD’ of cattle that the substitution hold by the that this easement is GRANTORS permis easement is a given to the and their succes- GRANTEES and does improvement sible of the easement the condition that the sors interest increase the burden on not in inter- GRANTEES and their successors servient estate. responsible for the [mainte- est shall be holding squared * * with the Our cannot be road *. and care of said access nance] ruling Wayne Harper district court’s prescriptive right to a an cannot established a The owner of Wayne pasture. Harper’s demand materially enlarge the burden on the servient his horse for a is inconsistent with the use of impose estate or a new burden on the ser- Weber, is, there- as we have defined it and Bard Ranch Co. v. 557 easement vient estate. Co., fore, 557 P.2d (Wyo.1976) (quoting pi’eeluded. 25 Am. Bard Ranch § Licenses 72 at 478 at 730. Jur.2d Easements and (1966)). When IV. CONCLUSION right passage given. Bard granted, a (cid:127) Co., court is re- (quoting The decision of district

Ranch 557 P.2d at 730 Edwards Julian, for further the case is remanded Pa.Super. 159 A.2d versed'and (I960)). with this proceedings consistent The owner of the servient es

LEHMAN, Justice, dissenting, with whom Justice, joins. Chief respectfully dissent from *3 majority states: this case whether the substitution of easement mate- rially increases the burden on Ques- question law. estate. This law reviewed de novo. tions of are added.) (Citation emphasis omitted disagree of review. with that standard enlarg of an easement

Whether owner imposes a burden on the servient es or new dealing question fact. estate is a Courts McBride, issue, McBride v. (Utah 1978); v. Tanaka Shee han, (D.C.App.1991); A.2d n. 8 Ownby, 225 S.W.2d 33

and even Mize v. (Tenn.1949) relies, upon which the facts in those make reference to the individu Review be al cases. should based when, here, evidence; as there suffi findings support cient evidence court, the be to affirm. trial result should Kerry Kelly Flores, DRAKE and (Plaintiffs),

Appellants NEWSPAPERS, CHEYENNE INCORPORATED, Appellee

(Defendant).

No. 94-133. Supreme Court