Funk v. Anderson

Decision Date09 July 1900
Citation22 Utah 238,61 P. 1006
CourtUtah Supreme Court

Appeal from the Seventh District Court San Pete county. Hon. Jacob Johnson, Judge.

Action for damages for trespass and for an injunction preventing further trespass upon plaintiff's land. Defendants justified claiming a prescriptive right of way over plaintiff's land. From a judgment and decree in favor of plaintiff defendants appealed.


Messrs Livingston & Christenson, for appellants.

The only question in this case, is as to the length of time necessary to mature a prescriptive right. The plaintiff sustained by the lower court, insists that twenty years of adverse user is necessary to mature such right to an easement, while the defendants, in prosecuting this appeal urge that all other essential elements being perfect, a prescriptive right to an easement by adverse user matures in the same length of time as matures a title to realty, by adverse possession, or such time as would bar an action in ejectment, which in Utah is seven years. Revised Statutes of Utah, Secs. 2859-2860.

In the United States the prescriptive title is held to have matured whenever it is shown that the elements peculiar to prescription, including adverse user, have existed for the peried of time fixed by the respective statutes of the several states as necessary to mature a right by adverse possession, or bar an action in ejectment. 2d Greenleaf on Ev., Secs. 538-9; 3 Kent Com., p. 442; Kripp v. Curtis, 11 Pac. Rep., p. 879; Arnold v. Foot, 12 Wend. (N.Y.) 330; 3d Wash., supra; Washburn on Easements, p. 66; Sherwood v. Burr, 4th Am. Dec., 211, and note; Boynton v. Longley, 19th Nev., 69; Yearger v. Woodruff, et al., 53 P. 1045.

Where the owner of land has used a way over another's land for the length of time equal to that required by the statute of limitation to bar an action to recover land, and the use has been adverse and continuous, a title by prescription is acquired in the way. 19th Am. & Eng. Enc. of Law, p. 25, and cases cited; 3d Kent Com. 3d Ed., p. 442-3, and cases cited; Chollar-potosi Mining Co. v. Kennedy, 3d Nev., 361; Barnes v. Hayes, 74 Am. Dec. 328; Stein v. Burden, (Ala.) 60th Am. Dec. 457; State v. Wilkinson, (Vermont) 21 Am. Dec. 563; Angell on Water Courses, Sec. 372; see note to McCoy v. Danley, 57 Am. Dec., 688; Ferris v. Cloud, 82 Am. Dec., 496; Campbell v. West, et al., 44 Cal. 646, and cases cited; Lawson on Presumptive Ev., pp. 405-6.

The provision of Section 2865 of the Revised Statutes of Utah upon which the plaintiff seems to rely can have no application in this case, as the provisions of such section are clearly intended to apply to adverse possession of corporeal hereditaments only, or to the land itself which has such peculiar incidents as substantial inclosure, usual cultivation, etc., and not to adverse user of easements, to which those provisions are clearly inapplicable.

In construing a statute similar to the above the court of New York said: "The Code of Civil Procedure, Sec. 372, requiring either a substantial inclosure, or usual cultivation or improvement as a condition of 'adverse possession' by a person claiming title to land not founded on a written instrument does not apply where a right-of-way is claimed by 'adverse user.'" Colburn v. Marsh, 22 N.Y. State, 990; same case, 68 Hun. 269.

And for the same reason Sec. 2866, Revised Statutes of Utah, does not apply; this provision has been taken from the California code, Section 325, and the Supreme Court of that state has held that it is not necessary to perfect title to an easement by "user," that taxes should be paid on the land over which the right-of-way passes by the person claiming the easement, under the statute which provides that in order to perfect title by "adverse possession" the claimant must pay the taxes upon the same. Thomas v. England, 12 P. 491; Humphries v. Blasingame, 37 P. 804.

Same doctrine held in the case of Yearger v. Woodruff, et al., 53 P. 1045 (Utah) .

William K. Reid, Esq., and James W. Cherry, Esq., for respondent.

To acquire a right of way by prescription it is necessary that the adverse user should be for 20 years. This question was squarely presented and decided by this court in the case of Harkness v. Woodmansee, 7 Utah, 227; Durkee v. Jones, (Colo.) 60 P. 618.

"For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:

1. Where it has been protected by a substantial inclosure.

2. Where it has been usually cultivated or improved.

3. Where labor or money has been expended upon dams, canals, embankments, aqueducts, or otherwise, "for the purpose of irrigating said lands, amounting to the sum of five dollars per acre."

"In no case shall adverse possession be considered established under the provisions of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of seven years continuously, and that the party or persons, their predecessors, and grantors, have paid all taxes, which have been levied or assessed upon such land according to law." Secs. 2860, 2861, 2865, 2866, Revised Statutes of Utah, 1898.

BARTCH, C. J. MINER, J. and BASKIN, J., concur.



This is an action for damages and for injunctive relief. The plaintiff claims that the defendants committed and threaten to commit trespass upon his land. In the answer it is averred that the acts of trespass complained of were the lawful acts of the defendants in removing obstructions placed across the road over plaintiff's land by the plaintiff for the purpose of annoying them while traveling to and from their home; and that for more than ten years prior to the bringing of this suit the defendants and those having occasion to go to and from the premises of defendant Mads Anderson have continuously, openly, notoriously, with the knowledge of the plaintiff, and under claim of right passed over the land, in question, as their only means of entrance and exit for all ordinary purposes of a road to the said premises.

From the evidence it appears that the plaintiff is the owner of the land over which the road referred to passes; that the defendant Mads Anderson owns the land to which the road leads; that the defendants have enjoyed a right of way over the land in dispute for more than ten years; that they have so used it during all that time openly, notoriously, and under claim of right with the plaintiff's knowledge and acquiescence, until May 22, 1899, when he obstructed the roadway with posts and poles; and that the defendants removed such obstructions. At the trial the court entered judgment in favor of the plaintiff and the defendants appealed.

The controlling question presented is whether an uninterrupted user and enjoyment by the owner of one tract of land of what he claims as an easement in that of another, will ripen into a prescriptive right during the period prescribed by the statute of limitations for quieting titles to land. The appellant contends that the right to an easement by adverse user becomes complete in the same length of time, as would bar an action in ejectment, which in this state would be seven years, while the respondent maintains that to acquire a right of way by prescription it is necessary that the adverse user should be for twenty years.

In ancient times a right to an easement could only be established upon an adverse use and enjoyment from time immemorial, that is, when the origin of such use was no longer within the memory of man. Later to obviate the uncertainty of title arising from adverse user for whatever length of time, and to avoid the rule of legal memory, the time of uninterrupted use and enjoyment was changed to a period of twenty years, by presuming a grant by deed. This legal presumption of such title however, is not conclusive, and may be rebutted by other evidence. "The fiction," says Mr. Washburn, "of presuming a grant from twenty years' possession or use, was invented by the English courts in the eighteenth century, to avoid the absurdities of their rule of legal memory, and was derived by analogy from the limitation prescribed by the Statute of 21 Jas. 1, c. 21, for actions of ejectment, not upon a belief that a grant in any particular case has been made, but on general presumptions. * * * This...

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12 cases
  • Morris v. Blunt
    • United States
    • Utah Supreme Court
    • December 5, 1916
    ... ... for a period of twenty years. Harkness v ... Woodmansee , 7 Utah 227, 26 P. 291; Funk v ... Anderson , 22 Utah 238, 61 P. 1006; North Point ... Co. v. U. & S. L. C. Co. , 16 Utah 246, 52 P ... 168, 40 L. R. A. 851, 67 Am. St ... ...
  • English v. Openshaw
    • United States
    • Utah Supreme Court
    • November 11, 1904
    ... ... principle of law has also been enunciated in the following ... cases from this court: Center Creek, etc., Co. v ... Lindsay, 21 Utah 200; Funk v. Anderson, 22 Utah ... The ... same rule prevails in other States. Schwallback v ... Railway Co., 69 Wis. 292, 2 Am. St. Rep. 740; ... ...
  • Welner v. Stearns
    • United States
    • Utah Supreme Court
    • December 28, 1911
    ... ... transferred by parol. ( McNeely v. Langan, 22 Ohio ... St. 32; Weber v. Anderson, 73 Ill. 439; Menkans ... v. Blumenthal, 27 Mo. 198; Cunningham v ... Patton, 6 Pa. St. 355. See notes on pages 252, 253, 254, ... vol. 3, ... establish his title. ( Needham v. Salt Lake City, 7 ... Utah, 319, 26 P. 920; Smith v. Water Company, ... 16 Utah 194, 52 P. 283; Funk v. Anderson, 22 Utah ... 238, 61 P. 1006; Dignan v. Nelson 26 Utah 186, 72 P ... 186; English v. Openshaw, 28 Utah 241, 78 P. 476.) ... ...
  • Keller v. Chournos
    • United States
    • Utah Supreme Court
    • January 28, 1943
    ... ... 25, 1940. The findings and judgment of the lower court in ... this respect are unsupported by the evidence. Funk ... v. Anderson et al., 22 Utah 238, 61 P. 1006; ... Gibson v. McGurrin, 37 Utah 158, 106 P ... 669; Ives v. Grange, 42 Utah 608, 134 P ... ...
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