First Church of Christ, Scientist v. Revell
| Decision Date | 04 March 1942 |
| Docket Number | 8473. |
| Citation | 2 N.W.2d 674,68 S.D. 377 |
| Parties | FIRST CHURCH OF CHRIST, SCIENTIST, v. REVELL et al. |
| Court | South Dakota Supreme Court |
Rehearing Denied May 5, 1942.
Robert C. Hayes and Alex Rentto, both of Deadwood for appellants.
Clinton G. Richards, of Deadwood, for respondent.
The defendants, Dr. and Mrs. Revell, claim the right to use a driveway located wholly within the boundaries of the property of the plaintiff Church. The parties are the owners of adjoining lots approximately 100 feet in depth fronting on Main Street, an east and west thoroughfare, in the city of Lead, South Dakota. The Revell property is located immediately west of the church lot, and the driveway in controversy extends along the west ten feet of the church lot. The rear of these lots is several feet below the grade of the street on which they front, and is separated from the lots immediately to the rear or south by a retaining wall several feet in height. No alley extends through the block. The driveway in question is a cul-de-sac leading downward from the street to the rear of the church property. The block is bounded on the east by Galena Street, on the north by Main Street, and on the west by Blue Street. The evidence deals with the use made of the driveway in connection with the lots of the parties and of the lot immediately east of the church and the lot immediately west of the Revell property. The church property has the only driveway located on these inside lots, and the evidence discloses some measure of use of that driveway by tradesmen and servicemen in reaching the back portions of the other three lots.
The Revells predicate their rights on one or more of four separate theories. They assert that a clear preponderance of the evidence is against the findings and conclusions of the trial court, and that the evidence establishes (a) an easement in the driveway appurtenant to their property under the doctrine of prescription, (b) an irrevocable license to use the passageway, (c) a dedication to public use, and (d) estoppel by conduct to question their rights in the property.
In more or less broad outline the evidence discloses the following facts with but little dispute. During the early years of 1880 one Frank Caretto became the owner of the Revell property and one Esterbrook acquired the church lot. The very primitive houses located on both properties were remodeled and improved. Within a few years Esterbrook engaged in the grocery business at a down town location and made use of a barn on the back end of his property to stable his delivery horses and to store feed and baled hay supplied to the public. By that time his property was enclosed by a fence and in the opening to the driveway was a wooden gate. A picket fence extended along the line between the two properties (the west line of the driveway), and the only passageway between the two lots was through a small opening or gateway about opposite the rear of the houses. On several occasions the Carettos asked permission to use the driveway in having wood, coal and hay delivered to the rear of their lot. On one or more occasions Esterbrook replied "The alley is there, use it as long as you want." And they did freely use it for like purposes during the tenure of the Esterbrooks which continued until 1912. Hay, coal and wood, when delivered, were thrown over the division fence from the driveway. The Caretto cow was driven through the small gate in and out of the driveway. During this period of time the Esterbrook employees were accustomed to enter the driveway and pass to the rear of the Caretto home in delivering supplies to Carettos and their neighbor on the west. A lesser like use of the driveway was made by Esterbrook's neighbor on the east. During the Esterbrook tenure Main Street was paved. At that time Esterbrook installed a paved crossing at the head of the driveway, and a new gate. One Feeney acquired the Esterbrook property in 1912 and deeded it to one Meade in 1913, and the Church took title from Meade in March of 1917 and constructed their church along the east line of the driveway a few years later. While the Church owned the property, a neighbor to the east asked and received permission to drive his car through the driveway and across the back of the church lot to his garage. A diminishing use of the alley by the Carettos continued until the Revells purchased their property in 1934.
In August of that year the Revells commenced the construction of a home which covers the full width of that lot. Incorporated into the rear of that home is a garage opening onto the church driveway, and because of walls erected around the rear of their lot the only means of passage to the garage is along the church driveway. A grade door from the Revell home, a door leading to the church reading room, and windows in both structures open onto the driveway. A narrow walk extends along the church side of the driveway.
Before purchasing the Caretto property the Revells had a survey made thereof to establish its boundaries and made an investigation through Mrs. Caretto's grandson, Mrs. Esterbrook, and others, with reference to the driveway. During this period a conference was held between Dr. Revell, in the presence of Mrs. Revell, and representatives of the Church, during which he asserted an easement and made an offer to purchase some of the church lot. The ladies representing the Church neither admitted nor denied the existence of an easement, and in fact were uninformed as to the legal nature or the existence of an easement. The matter was permitted to drift. At a later time, while attending the Chairman of the Church Board professionally, Dr. Revell told her that if they would have a survey and prove to him that he did not have an easement he would pay the Church $100 per front foot for the property. Thereafter trees which members of the Church believed they owned were cut down by Dr. Revell's contractor, and the Church stood by without objection and watched the Revells build an expensive brick home with the described openings on the driveway. Dr. and Mrs. Revell both testified with refreshing honesty that they were not influenced in so doing by anything the members of the Church did or did not do, but depended entirely on the advice of their counsel. Neither the defendants nor their counsel made any inquiry of the members of the Church to determine whether they conceded the existence of the claimed easement, and nothing was said by Church representatives to indicate that they were not standing on their legal rights.
The court found the use of the driveway prior to 1934 to have been permissive. That this finding must stand unless against the clear preponderance of the evidence is too well settled to require citation of authority. We think no different inference could be legitimately drawn from this evidence. To hold otherwise would be to adjudge that common neighborliness may only be indulged under penalty of encumbering one's property. The use was not adverse. Use which is not hostile or adverse will not ripen into a prescriptive right. 17 Am.Jur. 974. We therefore conclude that the Carettos did not acquire an easement in the Esterbrook-Church lot.
The doctrine of an irrevocable license was recognized by this court in Butz v. Richland Township, 28 S.D. 442, 134 N.W. 895, 898. It was there said, "Where, however, the licensee has acted under the authority conferred by the licensor and has incurred expense in carrying out its provisions, equity regards it as an executed contract, and will not permit it to be...
To continue reading
Request your trial