Berger v. Berger

• Decision Date: 13 February 1958
• Docket Number: No. 7742,7742
• Citation: 88 N.W.2d 98
• Parties: Frank X. BERGER, also known as Frank Berger, Plaintiff and Respondent, v. Ray F. BERGER, also known as Raphael F. Berger; Susan Berger, also known as Susie Berger, and Eugene Berger, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 98

88 N.W.2d 98

Frank X. BERGER, also known as Frank Berger, Plaintiff and Respondent, v. Ray F. BERGER, also known as Raphael F. Berger; Susan

Berger, also known as Susie Berger, and Eugene

Berger, Defendants and Appellants.

No. 7742.

Supreme Court of North Dakota.

Feb. 13, 1958.

Syllabus by the Court

1. To establish a highway by prescription, there must have been general, continuous, uninterrupted and adverse use of the same as such by the public under a claim of right for a period of 20 years. Section 24-0701, NDRC 1943.

2. Mere user by the public of a highway is insufficient of itself to establish a highway by prescription or long use. The user must be adverse and hostile to the rights of the owner.

3. Regardless of how long it is continued, user by permission or license of the owner of the land sought to be impressed with a public easement of travel is not adverse and affords no basis for prescription.

4. Where before prescriptive rights have accrued to the public, a landowner places gates across a road through his land, it is notice, or at least a strong indication, to the public that thereafter they are passing through the land by permission and not by right.

5. If the evidence is equally as consistent with permissive use of a road, as with adverse use thereof, the plaintiff has failed to sustain the burden of proof resting upon him to show a use under a claim of right.

6. To establish a road over the land of another by prescription, the evidence should be clear and convincing.

7. The evidence is examined and it is held, in the case at bar, that it is more consistent with permissive use or license of the road in question than with adverse use or claim of public right, the use of the road having been always obstructed by gates and the plaintiff and the public having acquiesced in its use as thus obstructed.

Floyd B. Sperry, Golden Valley, Baird & Baird, Dickinson, for appellants.

Reichert & Reichert, Dickinson, for respondent.

JOHNSON, Judge.

This is an action in which the plaintiff asserts that there has been established by user or prescription a public road across the E 1/2 SE 1/4 of Section 30-141-91; that said road has been open and in use as a public highway for more than twenty years and that the public has established such prescriptive highway under the terms of Section 24-0701, NDRC 1943. He also asks that the defendants be enjoined and restrained from fencing and plowing up the alleged highway or in any manner interfering with or obstructing the plaintiff and the public in the use thereof. The defendants generally denied the allegations of the plaintiff's complaint; they assert that in 1947 a new road was built across the E 1/2 SE 1/4 and that the defendant, Ray F. Berger, paid the county for its construction; that the plaintiff is not denied access to his real property; that he has a way out; and asks for a dismissal of the action.

The case was tried to the court without a jury. The trial court held for the plaintiff and determined that the road in question had been established by user or prescription across the E 1/2 SE 1/4 Section 30-141-91, that is across defendants' land; that the action of the defendants in plowing up the road and fencing if off in June of 1956, was illegal, and that they were enjoined and restrained from obstructing or interfering with the use of said highway by the plaintiff and the general public.

The defendants made a motion for a new trial on various grounds. This motion was denied by the trial court. They also made a motion to amend the answer in this action to conform to the proof. This was denied by the trial court.

With the motion for a new trial the defendants served extended specifications of error and alleged insufficiency of the evidence.

The defendants appeal to this court and demand a trial de novo. In view of our disposition of this case it will not be necessary to discuss the specifications of error on the motion for a new trial, or the motion to amend the answer to conform to the proof.

We will determine the facts from the record anew without specific reference to the alleged specifications of error.

In Berger v. Morton County, 57 N.D. 305, 221 N.W. 270, this court held, following Burleigh County v. Rhud, 23 N.D. 362, 136 N.W. 1082, that since the adoption of Chapter 112 of the 1897 Session Laws, the common law rule with respect to the establishment of a highway by prescription is in force in this state.

The common law rule with reference to the acquisition of a road by prescription is embodied in Section 24-0701, NDRC 1943 which provides:

'All public roads and highways within this state which have been or which shall be open and in use as such, during twenty successive years, hereby are declared to be public roads or highways and confirmed and established as such whether the same have been laid out, established, and opened lawfully or not.'

A highway may be established by long public user regardless of whether this mode of establishment is denominated user, prescription, or the acquisition of the right by limitation, it being, in any case, the adverse possession and use which establishes the highway. 39 C.J.S. Highways Sec. 3, page 921.

The fundamental requirements for the establishment of a public highway by prescription are well defined. Prescriptive rights under our law accrue only if the fundamental rules laid down by the courts apply to the existing facts.

To establish a highway by prescription, there must have been general, continuous, uninterrupted, and adverse use of the same as such by the public under a claim of right, for a period equal to that for the limitations of real actions. It is unquestioned that a general, continuous, uninterrupted and adverse user of a highway, as such, by the public, under a claim of right, for a period equal to that of the limitation of real actions, in this state 20 years, Section 24-0701, NDRC 1943, will establish a highway by prescription, and bar the owner of the soil. See 57 Am.St.Rep., Highways by User, page 748 and cases cited.

Mere user of land by the public as a highway is insufficient of itself to establish a highway by prescription or long use. The user must be adverse and hostile to the rights of the owners; and mere travel by the public does not of itself constitute adverse use of the property by the public. Regardless of how long it is continued, a user by license or permission of the owner of the land sought to be impressed with the public easement of travel is not adverse and affords no basis for prescription. 39 C.J.S. Highways Sec. 9, page 929; Harrison v. Harvey, 202 Ark. 486, 150 S.W.2d 758; People ex rel. Mayer v. San Luis Valley Land & Cattle Co., 90 Colo. 23, 5 P.2d 873; Van Wieren v. Macatawa Resort Co., 235 Mich. 606, 209 N.W. 825. See also Stickley v. Sodus Tp., 131 Mich. 510, 91 N.W. 745 59 L.R.A. 287; 57 Am.St.Rep. pages 757-758.

Many cases hold that to establish a prescriptive right to a road or street the user must be open, adverse, and under a claim of right, and with the knowledge and acquiescence of the owner or owners of the land in or over which the easement is claimed. See 57 Am.St.Rep., page 749.

Permissive use has reference to the conduct of the landowner in acquiescing and consenting that the road be traveled by the public while adverse user imports an assertion of right on the part of those traveling the road, hostile to that of the owner. 39 C.J.S. Highways Sec. 9, page 929. The hostile use of a road over privately owned land necessary to establish a prescriptive right means a use inconsistent with the owner's right to exclusive use. It does not imply enmity or ill will and is consistent with friendly relations between user of the road and landowner. King County v. Hagen, 30 Wash.2d 847, 194 P.2d 357.

With these fundamental general rules in mind, it remains to set forth the essential facts disclosed by the record to see whether such user as is here shown of the road in question, meets the necessary requirements to establish it as a highway by user or prescription.

The plaintiff and the defendants are neighbors. The buildings of the plaintiff are located on the W 1/2 SE 1/4 Section 30-141-91. The buildings of the defendants are located in the E 1/2 SE 1/4 of the same section, township and range. Preceding the occupancy of the W 1/2 SE 1/4 of Section 30 by the plaintiff, his father, Charles Berger, had lived there for 48 years. He had homesteaded the place about 1902. He or his son, Frank X. Berger, had occupied the W 1/2 SE 1/4 from that time until the trial the W 1/2 SE 1/4 from that time until the trial had existed over the E 1/2 SE 1/4 Section 30-141-91. This trail came in from the north going south for a considerable way and then turned east across the E 1/2 SE 1/4 of Section 30 to the east section line of that section. This trial probably originated in either 1912 or 1913. A bridge on the east section line of Section 30 was washed out about that time, so it was impossible to go over the section line and it appears that this trail was created shortly after that time. Some of the trail was on the plaintiff's place and crossed the entire E 1/2 of the SE 1/4 of the defendant Ray Berger's place. Both the plaintiff, Frank Berger, and his father, Charles Berger, claim that the trail was graded in 1920 or 1921. This work was done, it is claimed, by Charles Berger and his brother, John Berger, the father of Ray F. Berger, one of the defendants in this action. Whether the trail was graded or graveled in the years specified is immaterial. It remained in about the same place from the time it began to be traveled until 1947. In 1947 the location of the trail was straightened and changed across the E 1/2 SE 1/4. In that year the evidence shows that Ray F. Berger paid to Elling Helmer, one of the county commissioners of Stark County, the sum of $20, for grading a private road on Section 30-141-91.

The road was used not only by Frank X. Berger...