Ferguson v. Standley
| Decision Date | 27 April 1931 |
| Docket Number | 6741. |
| Citation | 300 P. 245,89 Mont. 489 |
| Parties | FERGUSON v. STANDLEY. |
| Court | Montana Supreme Court |
Appeal from District Court, Cascade County; W. H. Meigs, Judge.
Action by Gordon L. Ferguson against P. A. Standley. Judgment for plaintiff, and defendant appeals.
Modified and, as so modified, affirmed.
George H. Stanton, of Great Falls, for appellant.
Freeman Thelen & Freeman, of Great Falls, for respondent.
The defendant, P. A. Standley, has appealed from a judgment perpetually enjoining him from interfering with the use and occupation by the plaintiff, Gordon L. Ferguson, of a private roadway and telephone line from the latter's premises over and across his lands.
The complaint on which the injunction is based sets up two causes of action. As to the first cause of action, it is alleged that since 1896 plaintiff has been the owner and in possession of lands described, and from that date until April, 1929, John Ferguson owned an adjoining ranch which on the latter date he sold to the defendant. It is then alleged that in August, 1905, for a valuable consideration, John Ferguson granted to plaintiff a "permanent" right of way for a road, twenty feet in width, across certain lands, for the purpose of ingress and egress to and from plaintiff's ranch, and thereupon plaintiff constructed and ever since has used continuously, a road along the right of way. It is further alleged that defendant has lived in the vicinity for more than eleven years, and during all of that time knew that plaintiff claimed, and used under claim of right, the right of way, which is plaintiff's only feasible route from his ranch to market, to the schoolhouse, and to church, but that, upon securing possession of the premises on purchase from John Ferguson, defendant closed the road and excluded plaintiff from its use.
The second cause of action is based upon an alleged grant, by John Ferguson to plaintiff of a right of way approximately along the road described for a private telephone line and the construction thereof, with the allegation that defendant has excluded plaintiff from the right to go upon the land for the purpose of repairing and maintaining the telephone line.
By answer, the defendant admits the existence of the road and the ownership of the lands as alleged and that he did close the road, but denies plaintiff's right thereto. As to the telephone line, defendant admits all of the allegations of the complaint, except that he denies that he has in any manner interfered with plaintiff in the use thereof, and concedes to him the right to go upon the lands for the purpose of maintaining and repairing it at all reasonable times when necessary to do so.
A preliminary hearing was had and a temporary injunction issued, and, by stipulation, the evidence adduced, including an affidavit made by John Ferguson, was received in evidence on the final hearing, supplemented by further testimony on behalf of both plaintiff and defendant. On the final hearing it was conceded that the alleged grant of the right of way rested in parol, and the testimony with reference thereto was conflicting and unsatisfactory in many of its details, while certain of plaintiff's declarations appear to be disputed by facts suggested in the record.
With the record in this, condition, the court discarded the theory of a valid grant, and determined the matter in favor of plaintiff on the theory of an easement acquired by prescription, initiated by a void parol grant. No question is raised as to the sufficiency of the pleadings to uphold this theory, and we will therefore determine the questions presented on the theory adopted by the court. Scott v. Jardine Gold Mining Co., 79 Mont. 485, 257 P. 406.
Within due time after the cause was submitted, the court made and filed its findings of fact to the following effect: That, following the contour of a coulee, a road existed over and across the lands of plaintiff and his brother John at the time they settled thereon, and was used continuously up to the time of the controversy herein. Some work was done on the road prior to 1905, which was subsequent to the time both Fergusons had proved up on their homesteads and at which time John, then road supervisor, was working on the road with a road grader and with the help of a third person, when Gordon appeared, and "in the conversation then and there had by the two brothers about the road, it was definitely understood and agreed between them that each should have the use of and the right to the continued use of the coulee road over the lands of the other without limit." That "John had no thought of closing the road; *** it was regarded and accepted by him that the road was and ever would be a permanent roadway for himself, his brother Gordon and any one else *** who desired to use it."
The court found: That, while there existed a "rarely used trail" from plaintiff's home to the county road, this trail "goes up a long steep grade or hill which cannot be made reasonably usable without extensive work thereon on the part of the plaintiff, and which would be extremely burdensome, if not prohibitive, in cost to him," and that the "coulee road" is the "only reasonably available and practicable one for him to use in reaching the county road from his home." That these facts were known to John Ferguson, and that, by the conversation had in 1905, he intended "to relieve Gordon of any uncertainty or apprehension as to his further and future right to the unmolested use of the road," and thereafter did further work which "was a virtual dedication of the roadway for road purposes insofar as he, the owner of the land, was concerned."
Upon these findings, and others to which reference will later be made, the court drew its conclusions of law as follows:
(a) "That the open, visible, continuous, unmolested, uninterrupted, acquiesced in and known use of this coulee road by the plaintiff" for more than twenty years "under a claim of right thereto in accord with the verbal agreement" is presumed to have been under a claim of right, and in law is "deemed adverse to John Ferguson and his late grantee, the defendant."
(b)
(c) "That the defendant had personal knowledge and notice that the lands of John Ferguson were burdened with the open, visible, well-defined, clearly marked road and permanent telephone line and their use, *** and the purchase was made subject to such burdens. ***"
(d) That the use of the road as described, under claim of right, "ripened into a clear easement for right-of-way by prescription," and that injunction issue permanently prohibiting defendant from barring plaintiff from the use of the road or going upon defendant's land for the purpose of maintaining and repairing the telephone line. Judgment followed.
The judgment is the usual permanent injunction, perpetually enjoining and restraining the defendant, his servants, agents, and employees from wiring, nailing, or padlocking the gates across the roadway or otherwise obstructing or barring plaintiff from the use thereof. The road is particularly described, and it is declared, "the same being a strip of land twenty (20) feet wide." As to the telephone line, the judgment perpetually enjoins interference with the repairing and maintenance thereof.
1. The allegations of the complaint respecting the telephone line being admitted, there can be no question as to the correctness of the judgment as to it. As to the easement for the road, defendant first attacks the findings as not supported by the evidence.
2. Counsel for plaintiff contend that this attack must be disregarded, as defendant did not request findings nor file exceptions to the findings as made, citing sections 9369 and 9370, Revised Codes 1921, and numerous opinions of this court discussing their effect and announcing the doctrine of implied findings.
The sections cited deal with absence of findings and defective findings--omissions--while defendant attacks the findings for what they declare. In such case the rules announced in the cited provisions and cases have no application (Cobban v. Hecklen, 27 Mont. 245, 70 P. 805), and, on matters on which the court has made direct findings, there is no room for the application of the doctrine of implied findings ( Crosby v. Robbins, 56 Mont. 179, 182 P. 122). The specifications of error properly raise the question of the sufficiency of the evidence to support the findings.
3. On consideration of the evidence we are faced with the rule, too familiar to require the citation of authorities, that the findings of fact by a trial court based on conflicting evidence will not be disturbed on appeal. Nevertheless, this being an equity case, it is our duty to determine from the record whether or not the evidence preponderates against the decision of the trial court (Giebler v. Giebler, 69 Mont. 347, 222 P. 436; Laundreville v. Mero, 86 Mont. 43, 281 P. 749, 69 A. L. R. 416), and, in doing so must take cognizance of conflicts and contradictions in plaintiff's own testimony, as "it cannot be unfair to this plaintiff to deal with his...
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