Brooks v. Jensen
| Decision Date | 12 April 1971 |
| Docket Number | No. 6264,6264 |
| Parties | James A. BROOKS and Lois Brooks, Appellants, v. Minnie JENSEN, Respondent. |
| Court | Nevada Supreme Court |
Breen, Young, Whitehead & Hoy, Reno, for appellants.
Guild, Guild & Cunningham and David W. Hagen, Reno, for respondent.
This action was commenced by James A. Brooks and Lois Brooks to establish their right to an easement for a road 23 feet in width over an adjoining parcel of land owned by Minnie Jensen. Their claim rests primarily upon recorded documents which, they assert, confirm the easement as appurtenant to their land and a charge upon the land of Minnie Jensen. 1 In defense, Minnie Jensen alleges extinguishment of the easement by abandonment, and by counterclaim, asserts fee title to the 23 foot strip by adverse possession. At the close of the plaintiffs' case the district court dismissed the action pursuant to the defendant's Rule 41(b) motion.
The recorded documents were received in evidence and are not questioned. Testimonial evidence provides some conflict as to the use made of the road through the years. In reviewing the propriety of the dismissal we must read the record in the light most favorable to the plaintiffs against whom the motion was made. Schmidt v. Merriweather, 82 Nev. 372, 418 P.2d 991 (1966). Our recitation of the testimonial evidence is with this principle in mind.
Before 1931 the adjoining parcels of the litigants were part of a large tract of land owned by Lena Jensen and A. Jensen, Sr. In 1931 the senior Jensens intended to convey to their son the parcel now occupied by Minnie Jensen. The deed erroneously described the parcel intended and reserved to the grantors an easement for a road 23 feet in width. The deed actually described a parcel of land which the grantors did not own. The son, who has since died, and his wife Minnie moved onto the parcel intended for them and Minnie has lived there to this day. In 1940 Minnie learned of the mistaken description and asked Lena Jensen to correct it by executing another deed. Lena obliged by executing a quitclaim deed to Minnie correctly describing the parcel which Minnie had occupied for nine years and, once more, reserving to the grantor an easement for a road 23 feet in width.
James and Lois Brooks obtained their adjoining parcel through mesne conveyances from Lena Jensen. Each deed in their chain of title back to Lena Jensen carried 'appurtenances thereunto belonging.' Such is the documentary evidence which, in our view, verifies the claim of Mr. and Mrs. Brooks to an easement over Minnie Jensen's land. We shall first explain why this is so, and then consider whether that easement was extinguished by abandonment, prescription, or as contended by Minnie Jensen, never existed at all when the correction deed was executed in 1940.
1. The reservation of an easement over Minnie's parcel contained in the 1940 quitclaim deed was appurtenant to the large tract of land then owned by Lena Jensen. There is nothing contained in that conveyance to suggest that the easement therein reserved was to be appurtenant to the dominant estate only while such estate remained in single possession. Absent such a restriction, those who succeed to possession of parts of the dominant tenement also succeed to the privilege of using the easement reserved for the benefit of the dominant tenement. Cox v. Glenbrook Co., 78 Nev. 254, 263, 371 P.2d 647 (1962). As already noted, the conveyances of the parcel now owned by Mr. and Mrs. Brooks each carried appurtenances. The recorded documents establish the easement as appurtenant to the Brooks parcel.
2. An easement thus acquired may be extinguished by abandonment, prescription and in other ways not here relevant. The loss of an easement by abandonment depends upon a finding of an intention to abandon and nonuse of the easement is, of course, evidence of such intention. Rest.Prop. § 504 (1944). The testimonial evidence when read most favorably to the plaintiffs denies abandonment. The plaintiffs have used the road continuously for ingress to and egress from their home which was built in 1961. Their predecessor had used the road once or twice a week from 1950 to 1961 to haul hay and grain to animals. Indeed, from 1931 to 1941 the senior Jensens had chicken coops on the present site of the Brooks home and their employees used the road during that time and no effort was made to deny such use. There is a fence along the road and between the road and the Jensen home which has been there as long as Minnie Jensen could remember. Perhaps controverting evidence will be presented if a full trial occurs. At this juncture, however, abandonment cannot be found as a matter of law.
An easement may be extinguished by prescription--that is, use of the servient tenement by the possessor of it which would be privileged if the easement did not exist, provided the use is adverse to the owner of the easement and such adverse...
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