Gyra v. Windler

• Decision Date: 01 July 1907
• Citation: 40 Colo. 366,91 P. 36
• Parties: GYRA v. WINDLER.
• Court: Colorado Supreme Court

91 P. 36

40 Colo. 366

GYRA v. WINDLER.

Supreme Court of Colorado

July 1, 1907

Appeal from District Court, City and County of Denver; F. T Johnson, Judge.

Suit by Henry Windler against Rudolph Gyra. From a decree in favor of plaintiff, defendant appeals. Reversed and remanded.

Theodore H. Thomas, for appellant.

Whitford & May, for appellee.

BAILEY, J.

In the year 1875, Detlef Moller made a homestead filing on the northeast quarter of section 24, township 3 south, of range 66 west. He built a house near the west line of the quarter section and about a quarter of a mile north of the south line of the quarter section. He also had a half section of railroad land and a timber claim. Mr. Thompson, the brother-in-law of Moller, settled upon the northwest quarter of section 24 in the spring of 1875. There was a county road running north and south along the west line of section 24. In order to reach this county road, Moller went in a westerly direction across Thompson's land; Thompson consenting to this arrangement for a while, when he objected. Moller then told him that, unless he could continue to use this way across Thompson's land, it would be necessary for him to condemn a right of way across the north line of section 24. Thompson did not want this to be done, because he owned the land north of section 24, and it would be more injurious to his property to have a road laid out along the north line than to permit Moller to use the road across his place. So Moller was permitted to continue to use it. In the spring of 1883, Moller sold his property to appellee, Windler. Windler declined to purchase the land unless some way was provided for him to reach the public highway at the west of Thompson's place. He wanted a road laid out along the north line of the section. Thompson objected to this because it would be more injurious to his property than to have Windler continue to use the road which had theretofore been used by Moller. So Thompson gave Windler the right to use the road across his place as the same had been theretofore used. This gift was by parol. No writing of any kind was made. It seems to have been given by Thompson because Windler declined to buy the property from Thompson's brother-in-law unless he could have a road connecting him with the public highway. Some time later Thompson sold his property to Tilden, and Tilden sold to appellant in 1890. In 1894, appellee constructed a new eight-room brick dwelling upon his land at the terminus of the road across appellant's land. From the time appellee purchased the land from Moller and was given the right to travel over Thompson's land, there was no objection raised to his using the road until September, 1903, something more than 20 years, at which time appellant sent appellee a written notice that he intended to close the gate at the fence on the northwest quarter of section 24 opposite appellee's house, and gave appellee 60 days' time to quit going through appellant's property. Upon this state of facts appellee brought an action for injunction, alleging the ownership of his land; that the defendant owned the northwest quarter of section 24 and other lands, and 'the plaintiff is the owner of an easement in and a right of way through over and across the northwest quarter of said section 24,' describing the line thereof with reasonable certainty; that appellant threatened to close the road; and that appellee had no other way to reach the public road. Defendant answered the complaint, and the matter went to trial to the court without a jury. The court found that appellee was the owner of the right of way, and made a decree restraining defendant from interfering with the use of it and also providing that the right of way was 35 feet wide. The action is brought here upon appeal.

The principal contention of appellant is that whatever grant was made by Thompson was a mere license or permission which could be revoked at the pleasure of the licensor. The finding of the trial court is against the contention of appellant as to this proposition. The court distinctly found that Thompson, 'knowing that the plaintiff would not make such purchase without such easement and right of way aforesaid, then and there gave and granted to the plaintiff the easement and right of way aforesaid for the purpose aforesaid for a valuable and meritorious consideration; that said easement and right of way was to be permanent, and not terminable at the will of said Thompson.' This finding is supported by the testimony and will not be disturbed. Where the donee of a right of way across the property of another which has been granted, not by deed, but by parol, has uninterruptedly used the same for more than 20 years, with the knowledge, consent, and acquiescence of the donor and his grantees, where he has made improvements and expended money because of the grant, and where he would not have purchased the property to which the right of way is pertinent except for the granting of the same, his right to the use thereof may not be terminated by the donor or his grantees. The following appears to be the rule in such cases: 'But though a right of way cannot be gained by the parol agreement of him who creates it, yet where, under such agreement, the owner of the dominant estate used the way thus created for 20 years, and the same was acquiesced in by the owner of the servient estate, it was held to be such an exercise of the...