Gibbens v. Weisshaupt
| Decision Date | 27 October 1977 |
| Docket Number | No. 11913,11913 |
| Citation | 98 Idaho 633,570 P.2d 870 |
| Parties | Charles E. GIBBENS and Lula E. Gibbens, husband and wife, Dan T. Miller and Loretta Miller, husband and wife, Wallace R. Connolly and Eda R. Connolly, husband and wife, Don O'Kelly and Linda Lou O'Kelly, husband and wife, Bruce G. Connolly and Lanae Connolly, husband and wife, Plaintiffs-Respondents, v. Gustave A. WEISSHAUPT and Helen Weisshaupt, husband and wife, Fred Brusher andMargaret Brusher, husband and wife, Defendants-Appellants, v. AQUICULTURE GARDENS, INC., Carroll Nicholls and Kenneth Troutt, AdditionalDefendants-Respondents. |
| Court | Idaho Supreme Court |
R. H. Copple of Davison, Copple & Copple, Boise, for defendants-appellants.
D. Blair Clark of Anderson, Kaufman, Anderson & Ringert, Boise, for plaintiffs-respondents.
Charles E. Mooney of Lyons, Mooney, Bohner & Munson, Boise, for additional respondents.
This appeal concerns the existence of a prescriptive easement and the extent of use permitted thereby. The defendants-appellants (hereinafter appellants) are the owners of a 20 acre parcel of land located between Brookside Lane, a public highway, and a 700 acre parcel of land owned by the plaintiffs-respondents (hereinafter respondents). These parcels are located approximately seven road miles generally north of Boise, Idaho. Brookside Lane is on the south boundary line and the 700 acre parcel is on the north boundary line of the 20 acre parcel. The 700 acre parcel has no frontage along Brookside Lane or any other public highway. The only means of access to the 700 acre parcel is by way of a dirt road which commences on Brookside Lane and crosses the 20 acre parcel in a northerly direction. The use of the dirt road was commenced in the early 1930's. When this use was commenced the 20 acre parcel was unenclosed by fences and uncultivated. In the 1940's the 20 acre parcel was enclosed with a perimeter fence and gates were installed across the dirt road. This fence was constructed by a Mr. Pfost who was at that time the owner of the 700 acre parcel. This fence was constructed with the permission of a Mr. Jeker, who was the then owner of the 20 acre parcel. The fence was constructed so the 20 acre parcel could be used for the purposes of a pasture. This was the first use to which the smaller tract was put.
Prior to 1970, the 700 acre parcel was used primarily as a farm, cattle ranch, and single family residence, although the extent of the operations is not clear from the record. The single family residence, farm outbuildings, and corrals were all located on the southern boundary of the 700 acre parcel, at the north end of the dirt road. From the time the use of the dirt road was commenced in the early 1930's until 1970 the road was used primarily as a means of ingress and egress for the single family residence and for the movement of cattle, crops, and farm machinery attributable to the cattle and farming operation taking place on the 700 acre parcel. The road was wide enough to allow vehicles to pass and to "haul loads as wide as twenty-one feet." There is some evidence that the road was also used occasionally by persons attending rodeos which were held on the 700 acre parcel. At all times since the use of the road commenced in the early 1930's, the owners of the smaller parcel were aware of the use of the road by the owners of the larger parcel.
The respondents Wallace and Eda Connolly purchased the 700 acre tract in 1967. In 1970 the Connollys sold a 10 acre parcel to respondent Aquiculture Gardens, Inc. (hereinafter Aquiculture). Aquiculture constructed several greenhouses on the property and at times employed 20 to 30 people. Since 1970 the Connollys have also sold parcels to four other families who built homes upon the 700 acre parcel. The Connollys, Aquiculture and its employees, and the four families all used the dirt road for access to their property.
The appellants Weisshaupt and Brusher are the successors in interest to the Jeker family of the 20 acre parcel. The appellants Helen Weisshaupt and Margaret Brusher are sisters and members of the Jeker family. They inherited the property in the 1950's when their father died. In 1972 the appellants Weisshaupt began construction of a home on the 20 acre parcel.
Disputes arose between the Connollys and the Weisshaupts in early 1973 over the use of the dirt road. In December 1973 appellants Weisshaupt constructed a fence that limited the width of the road to twelve feet. After the appellants Weisshaupt constructed the fence along the dirt road, the respondents brought this action in district court to establish the existence of the easement and to enjoin the appellants from interfering with their use thereof. The appellants answered denying the existence of the easement and counterclaimed to quiet title.
After a trial on the merits, the trial judge found that an easement for ingress and egress existed across the appellants 20 acre parcel in favor of the respondents and their successors. The trial court held that the easement was forty feet in width where the road adjoins Brookside Lane and the respondents' property and twenty-two feet in width elsewhere. The lower court also found that the increase in use since 1970 was an increase only in degree and was not an expansion of the original prescriptive easement and did not result in increased burden upon the appellants' property. The trial judge also held that the appellants could not maintain gates across the dirt road that would obstruct the use of the easement by the respondents.
This appeal presents three issues:
(1) The existence of a prescriptive easement.
(2) The scope and extent of the prescriptive easement.
(3) Construction of gates across the easement and fences parallel to the easement.
Existence of the prescriptive easement
The trial judge held that the appellants' 20 acre parcel was subject to a prescriptive easement in favor of the respondents for access to their property. We affirm the trial judge as to the existence of a prescriptive easement. The extent and scope of the easement will be discussed under II.
In order to establish a private prescriptive easement by adverse use the claimant must submit proof of open, notorious, continuous, uninterrupted use, under claim of right, with knowledge of the owner of the servient tenement, for the prescriptive period. Webster v. Magleby, 98 Idaho 326, 563 P.2d 50 (1977); West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973). The prescriptive period in Idaho is five years. I.C. § 5-203. The general rule is that proof of open, notorious, continuous, uninterrupted use of the claimed right for the prescriptive period, without evidence as to how the use began raises the presumption that the use was adverse and under claim of right. Once this is established the burden is then on the owner of the servient tenement to show that the use was permissive, or by virtue of a license, contract, or agreement. West v. Smith, supra; Deer Creek, Inc. v. Hibbard, 94 Idaho 533, 493 P.2d 392 (1972); Sinnett v. Werelus, 83 Idaho 514, 365 P.2d 952 (1961). This general rule fixing the presumption of adverse use and shifting the burden on to the owner of the servient estate is inapplicable where the prescriptive easement is claimed over open, wild, unenclosed, unimproved land. Trunnell v. Ward, 86 Idaho 555, 389 P.2d 221 (1964); Cox v. Cox, 84 Idaho 513, 373 P.2d 929 (1962); Eagle Rock Corp. v. Idamont Hotel Company, 59 Idaho 413, 85 P.2d 242 (1938).
The trial judge found that the use of the roadway by the respondents and their predecessors in interest was open, notorious, continuous, and under claim of rights since the early 1930's and that the appellants and their predecessors in interest had knowledge of such use. He further found that the appellants' 20 acre parcel was not wild, open, unenclosed, unimproved land. The trial judge thus found that the respondents had sufficiently proven each of the elements necessary to establish a prescriptive easement. We find no error in this conclusion.
The appellants claim that the trial court erred in holding that respondents had established a prescriptive easement. The appellants argue, that prior to the construction of the fence in the early 1940's, the 20 acre parcel was wild, open land thus requiring the respondents to produce some evidence other than or in addition to mere use of the roadway to establish adverseness and claim of right. The appellants argue that since the perimeter fence was constructed with the permission of the owner of the 20 acre parcel any subsequent use of the road was entirely permissive and that prior to the construction of the fence any use of the road did not deprive them or their predecessors in interest of any property right.
Neither our research nor the briefs filed in this case have disclosed authorities which clearly define wild, open, unenclosed, unimproved lands. The many cases which have relied on that principle lack precedential value because they fail to set out sufficient facts describing the land in question and the reasons for the conclusions that the lands in question were wild and open. See generally 46 A.L.R.2d 1140.
The trial court concluded that the appellants' 20 acre parcel should not be considered wild, open land. The servient parcel of land in question was a small tract located between a public highway and a larger improved tract of land. The distance separating the public highway from the 700 acre parcel was only some 700 feet (the length of the dirt road). Considering the size of the parcel, its location, and the surrounding property, the finding of the trial court that the 20 acre parcel was not wild and open land is supported by competent evidence and will not be disturbed on appeal. Webster v. Magleby, supra. This is an appropriate case to apply the principle of law that open, notorious, continuous, and uninterrupted use of the way for the statutory period raises a...
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