Morris v. Blunt

¶1This 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.

¶2The 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 *246vehicles and domestic animals, that for fifteen years prior to the making of said deed, and at the time of said conveyance, the road in question existed and was and had been used by the public, and that it was a-well-defined; clearly marked road, and allege that the plaintiff has, by various acts, attempted to interfere with the use of said highway; and the defendants ask that their right in said road be decreed to them, and that the plaintiff be enjoined from further interfering with the peaceable possession of said right by the defendants. The following sketch will explain the situation of the lands of the respective parties, the location of the canal, and the right of way in dispute:

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¶4The 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.”

¶5That 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 *247said Jane Kersey, deceased. That the road in question is not, and never was, a public highway. That the canal through the lands in question has a shoulder or bank about eighteen inches above the general level of the land and extending from 1 to rods south from the water’s edge and along the south side of said canal. That the meaning of the phrase “a strip of land one rod wicle* along the south side of and following the course of said Utah & Salt Lake Canal” is that the south side of said canal is the outer edge of seM shoulder or bank, and that the right of way specifically mentioned in the deed extends along the south or outer edge of said shoulder and extends from the east section line westerly along the course above indicated parallel to and l-¿ rods south of the high-water mark, following the meanderings thereof, more or less, to a point directly south of the southeast comer of defendants5 land; thence westerly 2-]- rods; thence north across the canal to the land of the plaintiff, thereby leaving a square 2% rods each way for the purpose of turning and crossing the canal. That the defendants have no right or interest in.the lands of the plaintiff other than as above indicated. The court issued an injunction restraining the defendants from in any manner interfering with the use by plaintiff of the lands owned by him, except as above indicated, thus closing to the defendants the road from about the southeast corner of defendants’ land to the point where said road formerly crossed the canal a distance of about twenty rods.

¶6The 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.

¶7Upon 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 *248the plaintiff,, the road extended west of the east line of her property about twenty rods, and then turned north across the canal; that the road before that time had continued on west on the south side of the canal from that point through the section, and some of the people who lived to the west and those working on the canal traveled said road frequently; that it was unimproved, marked only by wheel tracks which were plainly visible; that it was open, without gates; that there were no sighs to the effect that it was a private highway, and that there never have been such signs along the road; that the house bought by Jane Kersey, with the land, faced toward this road that extended west of the point where the district court found it turned north across the canal; that the Kersey place has been continuously occupied, and the occupants and the visitors traveled the road to and from the house; that there has been no change in the location of the road; that it' is in substantially the same position on the ground now that it was twenty-seven years ago; that in making and cleaning the canal the excavated material and debris were thrown out on the south side of the canal, making the surface of the ground rough and uneven for a distance of 1 to 1-J rods along the south side of the canal and through its entire length upon the land in question; that numerous boulders were thrown out of the canal; that no bridge existed at the point where defendants contend the road should cross the canal; that in about 1912 the plaintiff plowed the road to the canal bank, and that frequently, in plowing the lands adjoining the road, plaintiff deposited boulders from his land upon the road ; that the defendants, with shovels, leveled the road and threw the rocks to the north toward the canal, and continued to travel the road as before; that in 1914 plaintiff set posts in the roadway where defendants crossed the canal, turning north, and that the defendants, or some of them, removed said posts and threw them aside and continued to cross at that point; that plaintiff closed the road on the south side of the canal running west from the defendants’ present crossing in about 1910; that the road was plowed by plaintiff in about 1904; that in about 1907 plaintiff placed a wire gate' at the public highway along the east line of the section; that *249defendants objected and ent it down; that the water in the canal is about sixteen feet wide; that the company does not have title to the land covered by the canal, and claims only by usage; that there is no bridge across the canal to the Jane Kersey place.

¶8It 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.

¶9They 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:

¶10First, 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.

¶111 A dedication rests primarily in the intent of the owner. There must be a concession intentionally made by him, which may be proved by declarations or by acts, or may be inferred from circumstances. No form or ceremony is necessary. It must, however, appear that he knew of the use by the public, and intended to grant the right of way to the public. No formal acceptance by any public officer or agent is necessary, but there must be actual use by the public. City of Cincinnati v. White, 6 Pet. 440, 8 L. Ed. 452; Morgan v. Railroad Co., 96 U. S. 723, 24 L. Ed. 743; Harkness v. Woodmansee, 7 Utah 227, 26 Pac. 291; Whittaker v. Ferguson, 16 Utah 240, 51 Pac. 980; Schettler v. Lynch, 23 Utah 305, 64 Pac. 955; Culmer v. Salt Lake City, 27 Utah 252, 75 Pac. 620; Wilson v. Hull, 7 Utah 90, 24 Pac. 799.

¶12*2502, 3*249From the evidence, it appears that the plaintiff,,* two years before the commencement of this action, plowed the road to the canal bank; that frequently in plowing lands ad*250joining the road plaintiff rolled bonlders from the land into the road, which the defendants removed before they eonld travel the road; that plaintiff closed the road extending west from the Kersey crossing five years before the commencement of this action; that a wire gate was placed by the plaintiff across the entrance to the road on the east section line seven years before the commencement of this action; and that the road was plowed by the plaintiff as much as ten years before the commencement of this action.

¶13All 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.

¶14Next we must consider the people who used this road. Did their traveling upon it constitute a use by the public ?

¶154, 5, 6 The evidence discloses three classes of persons only who used this road, to wit, the occupants of the Kersey place and their visitors, the workmen upon the canal, and some persons who lived in the middle of the section.

¶16As 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.

¶17As 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 *251these persons were not on this road by reason of its public character, but under whatever right by “user” the canal company had over this land for canal purposes.

¶18As 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.

¶19However, 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.

¶20Compiled 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.”

¶21A “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.

¶22From a consideration of the facts in evidence, viewed in the light of the well-established principles of law, we must con-*252elude, as . did the trial court, that there is disclosed no such-intention on the part of the owner of the land to dedicate to public use, nor such use by the public constituting an acceptance as is necessary to show a dedication or abandonment to public use.

¶237 The second contention of the appellants is that by their and Mrs. Kersey’s use they have an easement by prescription.

“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.

¶24A 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.

¶258 A prescriptive right in the public is disposed of by our conclusion, heretofore reached, that the evidence does not show use by the public, and that this was not a public highway; but there is still the question of a private *253right of way by prescription. Under the well-established rule, the use, in order that it may ripen into a prescriptive title, must, in any case, not only be adverse and continuous, and under claim of right for a period of twenty years, but it must be uninterrupted throughout that period. In the case at bar the use of the defendants and their predecessors commenced in 1887, at which time there was a severance of the title to the parcels of land, and could not ripen into title by prescription until 1907. ' But the defendants’ own testimony shows that the plaintiff plowed the road in question as early as 1904, and from that time to the commencement of this action the plaintiff, from time to time, placed rocks in the road, from the plowed land adjoining, and that the defendants, with shovels, leveled the ground and removed the rocks to the north to make the road passable; and following these acts, and clearly indicating the attitude of each of the parties to this suit to the claim of the defendants to the ownership of this right of way at about the time the twenty-year period would have expired, plaintiff placed a wire gate across the road at the point where it left the public highway^ and the defendants cut it down. From these circumstances we conclude that the use was not uninterrupted, and that no right by prescription could arise under these circumstances. Wasatch Irrig. Co. v. Fulton, 23 Utah 466, 65 Pac. 205; Crosier v. Brown, 66 W. Va. 273, 66 S. E. 326, 25 L. R. A. (N. S.) 174; Reid v. Garnett, 101 Va. 47, 43 S. E. 182; Wooldridge v. Coughlin, 46 W. Va. 345, 33 S. E. 233.

¶269 The third contention made by appellants is that the road was granted by 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. The deed contained the very usual clause, following the specific description of the real estate, to wit, “together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining. ’ ’ Whatever passed under this clause as an appurtenance must have been an existing easement at the time of the making of the deed; i. e., such rights were conveyed by this *254clause as were then belonging or in any wise then appertaining to said land. But during the unity of title no easement could exist as between parts of the land. An owner cannot have an easement in his own land because during the unity of title all the benefits and uses for easement are comprehended within his general ownership. Such a clause in a deed will not create a new right, nor, in case of severance of title, will it convey a right to a use for the benefit of one part of the land over another part. Such a right, if it is conveyed, must be by definite language which first creates or defines the easement and then conveys it. Duvall v. Ridout, 124 Md. 193, 92 Atl. 209, L. R. A. 1915C, 345.

¶2710 An appurtenance implied upon a severance of title is referred to the intent of the grantor, and such intent is gathered from conditions existing at the time of the severance of title and implied from such circumstances; and in general terms, the rule may be stated that when the owner of a tract of land has arranged and adapted the various parts so that one derives a benefit and advantage from the other of a continuous and obvious character, and he sells one of the parts without making mention of the incidental advantage or burdens of one in respect to the other, there is implied an understanding and agreement that such advantages and burdens continue as before the separation of title. Ingals v. Plamandon, 75 Ill. 118; Carbrey v. Willis, 7 Allen (Mass.) 364, 83 Am. Dec. 688; Scott v. Moore, 98 Va. 668, 37 S. E. 342, 81 Am. St. Rep. 749; Grace M. E. Church v. Dobbins, 153 Pa. St. 294, 25 Atl. 1120, 34 Am. St. Rep. 706; Quinlan v. Noble, 75 Cal. 250, 17 Pac. 69.

¶2811 The elements essential to constitute an easement by severance are: (1) Unity of title followed by severance; (2) that -at the time of the severance the servitude was apparent, obvious, and visible; (3) that the easement is reasonably necessary to the enjoyment of the dominant estate; and (4) it must usually be continuous and self-acting, as distinguished from one used only from time to time when occasion arises.

¶29We pass the fourth requirement, as to which there is a *255clear conflict in the decided cases. There are decisions by courts of final jurisdiction in the various states holding that the servitude, in order to pass as implied upon severance, must be of a continuous nature, i. e., one which may be enjoyed without the act of man, as a right to conduct water through a spout which discharges water automatically whenever rain falls. Bonelli Bros. v. Blakemore, 66 Miss. 136, 5 South. 228, 14 Am. St. Rep. 550; Fisk v. Haber, 7 La. Ann. 652.

¶30On 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.

¶3112 As to the first essential, i. e., unity of title followed by severance, that, in this case, is admitted. As to the second, that the servitude was apparent, obvious, and visible at the time of severance, the undisputed evidence is to the effect that at the time of severance the way in question was a well-defined, though unimproved, driveway. However, as to the third essential, i. e., that the servitude is reasonably necessary to the enjoyment of the dominant estate, there is serious doubt. It must be borne in mind that the issue presented in this case is not whether the defendants shall have a roadway from their land to the public highway on the east— that far the way was decreed to the defendants by the district court — but whether or not this roadway shall end at the southeast corner of defendants’ land, or extend twenty rods west, still over the plaintiff’s land, and then across the canal, and enter the land of defendants. So the question here is whether or not the evidence discloses a reasonable necessity for perpetuating the twenty rods of roadway west from the southeast corner of defendants’ land. The only evidence upon this subject is that the dwelling house upon the defendants’ land, which was there at the time of severance, faced south some distance from and toward the canal and the extended roadway. Does this disclose that the extension of the roadway, which the defendants seek, is reasonably necessary to the proper enjoyment of the property conveyed, or that this extension of the roadway materially adds to the value of *256the land? ¥e think not. From a careful consideration of the conditions and circumstances of the property at the time of severance, .as disclosed by the evidence, we cannot find that there is any advantage whatever to the defendants’ property in continuing the roadway past the southeast corner of defendants’ land as decreed by the district court.

¶32That 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.

¶3313 Within this third proposition is included the contention that the roadway is extent, as is existed at the time of the conveyance, passed under the express terms of the deed by the description of "a right of way for ingress and egress to said land from the east line of section over a strip of land one rod wide along the south side of and following the course of said Utah & Salt Lake Canal,” by reason of the fact that at the time of the conveyance' there was upon the land such a right of way in use and known to the parties to the deed. The rule may be stated generally that upon the severance of title, if the deed contains a clause conveying a right of way across the land still held by the grantor, but not fixing its course and extent, and it is made to appear that at the time of conveyance there was in use upon the land reserved such a way plainly visible, and known to the par*257ties, it will be deemed that the way intended by the' grantor is the one actually in existence. Gerrish v. Shattuck, 128 Mass. 571; O’Brien v. Schayer, 124 Mass. 211, Peabody v. Chandler, 17 Misc. Rep. 655, 40 N. Y. Supp. 1028; Bannon v. Angier, 2 Allen (Mass.) 128.

¶3414 . This rule of law- is well established, and is highly beneficial, but the cases to which we must look-for illustrations of Its application are from communities where conditions .as to marked boundaries and inclosures are, and for.a long time have been, fixed and settled, and in which its application is much more easily made than in a community such as that involved in this case. This community,, as disclosed by the evidence, during the years involved, was in process of settlement, and the whole country was but recently largely open, and the traveler free to follow almost any course that promised to bring him most easily to his journey’s end. Here we find wheel tracks in almost any direction without system, and without regard to section lines or property rights,. When, in a community so situated, the time arrives for thé fencing of fields and the establishing of permanent roads and rights of way, the strict application of this rule would, in many cases, produce fantastic results quite inconsistent with justice. In this case we feel that its applicability is doubtful. Here we have a grant of a right of way for ingress and egress.to this land from the east line of the section along the south side of the canal. The evidence shows that at the time the deed was made the wheel tracks along the south side of the canal extended the whole length of the canal through the property of the plaintiff, with a turn-off at the point where-■the defendants now contend it should still remain. There is no reason suggested in the evidence why a turn-off at this point is more advantageous to defendants’ land than at the Southeast corner of the defendants’ land. In construing any grant of right of way the use, in character and extent, is limited to such as is reasonably necessary and convenient to the dominant estate and as little burdensome to the servient estate as possible for the use contemplated. In the case before us the terms of the grant cannot be said to be wholly general. The way is to be along the south side of the canal, *258and is to extend from the east line of the section, and is for the purpose of ingress and egress., In the absence of proof of disadvantage to the dominant estate occasioned by turning the road across the canal at the southeast corner of the land, the right of the servient estate to have the easement as little burdensome as possible consistent with the use contemplated should be recognized.

¶35binder 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.

¶36For the reasons given, the decree of the district court is affirmed, with costs.