Friend v. Holcombe
| Decision Date | 16 October 1945 |
| Docket Number | Case Number: 31749 |
| Parties | FRIEND et al. v. HOLCOMBE |
| Court | Oklahoma Supreme Court |
¶0 1. EASEMENTS-One claiming prescriptive easement for road purposes over unenclosed land has burden of proof that user was adverse.
The burden of proof is upon one claiming a prescriptive easement for road purposes over unenclosed pasture land to establish that the user was adverse, and such fact is not established by mere proof of user for the prescriptive period.
2. SAME-Mere permissive use of way over land will not ripen into ease meet.
A mere permissive use of a way over the land of another, however long indulged in, will not ripen into an easement.
3. NEW TRIAL - Motion filed within three days after court announced decision on merits of cause not prematurely filed.
A motion for a new trial filed within three days after the trial court announced its decision on the merits of a cause is not prematurely filed.
Appeal from District Court, Osage County; Hugh C. Jones, Judge.
Injunction by Thad Holcombe against W. F. Friend, Sr., and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Jesse L. Ballard, of Tulsa, and John L. Arrington, of Pawhuska, for plaintiffs in error.
J. C. Cornett, Frank T. McCoy, John T. Craig, and John R. Pearson, all of Pawhuska, for defendant in error.
¶1 This cause is presented on appeal from the district court of Osage county. The action was instituted on April 9, 1943, by Thad Holcombe, as plaintiff, against W. F. Friend, Sr., and W. F. Friend, Jr., to obtain an injunction to prevent the defendants from interfering with plaintiff's use of a roadway across the land of the defendants. Defendants answer was a general denial.
¶2 On August 3, 1943, the cause was tried to the court without the aid of a jury. At the conclusion of the action the court rendered judgment for the plaintiff, holding that the roadway which plaintiff sought to use had been used and possessed as a road for more the 15 years prior to the commencement of plaintiff's action.
¶3 The road in question which is herein claimed to have been acquired by prescription commences south of the tow of Bowring in Osage county, Okla. A that point it departs in an easterly direction from the public highway. It passes through property belonging to and leased by the defendants in this action until it reaches the property of th plaintiff herein, through which it passes to the east side thereof where there is a fork. One branch of the road angles to the north and the other branch angles to the south.
¶4 Historically the road has been used for years. In fact, the record indicate that such use started about 1885 and continued thereafter without interruption until, in April of 1943, the defendants, Friend and Friend, fenced the land placing gates across the road Soon thereafter the gates were removed and the fence was stretched across the road.
¶5 Plaintiff not only relied upon the continued use of the road by the public generally but he also emphasized the such use had been mutually enjoyed by plaintiff and his predecessors and by defendants and their predecessor throughout the years.
¶6 In this connection it is also emphasized that both plaintiff and defendants and their predecessors in title owned or controlled adjacent land over which the road passed, and the plaintiff claimed his right of prescription under the "mutual use rule."
¶7 The plaintiff, Holcombe, acquired his ranch in 1933. The Friends acquired their ranch in 1935. At the time the ranches were acquired the territory was only partially fenced. No fence had been placed on the east side of the road running from Bowring to Pawhuska Since that time additional fences have been constructed.
¶8 At the conclusion of the trial of this case, the judgment of the trial court was for the plaintiff. . The trial court decided that the road had been used by the plaintiff and other members of the public for a sufficient length of time to create a right of way for road purposes by prescription. It held that the public use of the right of way was adverse rather than permissive.
¶9 In its conclusion we believe the trial court erred. The mere permissive use of a way over the land of another, no matter how long indulged in, will never ripen into an easement.
¶10 In Thomas v. Morgan, 113 Okla. 212, 240 P. 735, we held that:
¶11 Throughout the years the use of the road seems to have been permissive. We find no testimony in the record which supports the trial court's finding that the public use of the highway was adverse. On the contrary, it was, as we have previously noted, permissive in every sense of the word. The Friends never did object and, in so far as we can ascertain from the record, no one else who ever owned or controlled the land over which the road or any part thereof ran ever raised an objection or sought to compel the cessation of traffic.
¶12 The question as to whether the use of the land of another is permissive is often difficult and in many instances is based on the facts and circumstances of the individual case. The prevailing rule is that where a claimant has shown an open, visible, continuous and unmolested use of land for the period of time sufficient to acquire an easement by adverse user, the use will be presumed to be under a claim of right, and the owner of the servient estate, in order to avoid the acquisition of an easement by prescription, has the burden of rebutting this presumption by showing that the use was permissive. 17 Am. Jur. 981; 19 C.J. 959. This rule, however, appears to be elastic and the proof of adverse user, to create prescriptive right to passway that traverses uninclosed lands, must be much more convincing than proof required to establish same right when passway traverses clear or inclosed land. Evans v. Bullock, 260 Ky. 214, 84 S. W. 2d 26. The reason supporting this latter rule is that few owners of uninclosed land pay any attention to the travel over it, but when there is much travel over inclosed or cultivated land, it is, as a rule, a serious inconvenience as well as a source of annoyance to the owner, and as to the latter status it will be presumed that the use was with the knowledge of the owner, and that if he permits its use for the requisite period without attempting to interfere, his action will be taken as his implied consent thereto, while the mere fact that he permits the public to travel at liberty through unimproved lands might not raise any presumption of a grant.
¶13 Following the thought contained in the above paragraph, it was said in the case of Hester v. Sawyers, 41 N. M. 497, 71 P.2d 646:
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McGlothlin v. Livingston
...or the former owners of his land ever made any objection to the use of the road over said land. Our remarks in Friend v. Holcombe [1945 OK 267, 196 Okla. 111, 162 P.2d 1008], in speaking of a passway over grazing lands in Osage county are therefore applicable to the road in question as it o......
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... ... 28, 185 P. 654; F. C. Ayers Mercantile Co. v. Union Pacific R. Co., 8 Cir., 16 F.2d 395; Shonafelt v. Busath, 66 Cal.App.2d 5, 151 P.2d 873; Friend v. Holcombe, 196 Okl. 111, 162 P.2d 1008; Ferguson v. Standley, 89 Mont. 489, 300 P.245; 2 C.J.S., Adverse Possession, § 216, page 822; ... ...
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Patterson v. Harris, 41624
...Boullioun v. Constantine, 1932, 186 Ark. 625, 54 S.W.2d 986; Thomas v. Morgan, 113 Okl. 212, 240 P. 735, 43 A.L.R. 934; Friend v. Holcombe, 196 Okl. 111, 162 P.2d 1008. The rule thus stated has been recognized by our own Court in the following cases: Alexander v. Polk, 39 Miss. 737; Lanier ......
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Nesbitt v. Jones
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