Cusic v. Givens, 7522

• Court: United States State Supreme Court of Idaho
• Citation: 70 Idaho 229,215 P.2d 297
• Docket Number: No. 7522,7522
• Parties: CUSIC et ux. v. GIVENS et al.
• Decision Date: 21 February 1950

Page 297

215 P.2d 297 70 Idaho 229 CUSIC et ux.
v.
GIVENS et al. No. 7522. Supreme Court of Idaho. Feb. 21, 1950.

Frank Estabrook and Frank F. Kibler, Nampa, for appellants.

[70 Idaho 230] Milo Axelsen, Nampa, for respondents.

TAYLOR, Justice.

The SW 1/4 of Sec. 13, Township 1 South, Range 2 West, B. M., in Canyon County, is bounded on the south and west by public roads. Thomas Duffy and wife were the owners of the east half of the quarter section. Their dwelling and other buildings were near the middle of the north forty. In 1919 they conveyed the south forty to one McMullen. The deed contained the following reservation: 'Except a strip of land sixteen feet wide reserved for right-of-way for road purposes along the west line of the above described land.' By mesne conveyances each containing the identical reservation the plaintiff Lucille Cusic became the owner of this south forty. In 1943 she married Herman Cusic. In the same year plaintiffs contracted to buy

Page 298

the west half of the quarter section, and they have since been in possession of the three forties. The roadway along the west side of the southeast forty is fenced on both sides. After it enters the northeast forty it continues north 335 feet, then turns northeast to the buildings on the 'Duffy forty.' At the point where the road turns to the northeast from the west line of the Duffy forty there is a gate opening into the plaintiffs' north forty lying to the west, and a bridge across a ditch paralleling and on the west side of the fence. For a number of years before his death in 1946, Thomas Duffy had been a widower in poor health, and his farm was operated by tenants. In 1947, defendant Mary Givens, his daughter, and administratrix of his estate, with her husband Elmer Givens, took possession of the Duffy forty. Following a dispute, defendants closed and locked the gate on the boundary line where [70 Idaho 231] the roadway enters the Duffy forty. Plaintiffs brought this suit claiming an easement over the way on both tracts by prescription and as an appurtenance to their lands. From a judgment for plaintiffs, defendants appeal.

The record shows that the road was laid out and established by Mr. Duffy, for his own use, prior to the sale to McMullen. Through the years following it was used by the owners and by all who had occasion to go to either of the adjacent farms, by the ditch rider, the milk trucker, hay buyers, and the occupants of the farms in their farming operations. This use was entirely permissive. Mr. Duffy made no objecton. There is nothing in the record to indicate that any user claimed an adverse...