Harber v. Jensen

• Decision Date: 09 September 2004
• Docket Number: No. 03-228.,03-228.
• Citation: 2004 WY 104,97 P.3d 57
• Parties: John B. HARBER and Sylvia Harber, Trustees under the Harber Family Trust, dated April 1, 1997; and Larry Lozier and Sharon Lozier, Trustees of the Larry Lozier and Sharon E. Lozier Revocable Trust dated February 16, 1994, Appellants (Defendants), v. John W. (Wayne) JENSEN and Mary Kay Jensen, husband and wife, Appellees (Defendants).
• Court: Wyoming Supreme Court

97 P.3d 57

2004 WY 104

John B. HARBER and Sylvia Harber, Trustees under the Harber Family Trust, dated April 1, 1997; and Larry Lozier and Sharon Lozier, Trustees of the Larry Lozier and Sharon E. Lozier Revocable Trust dated February 16, 1994, Appellants (Defendants), v. John W. (Wayne) JENSEN and Mary Kay Jensen, husband and wife, Appellees (Defendants).

No. 03-228.

Supreme Court of Wyoming.

September 9, 2004.

Representing Appellants: Ralph E. Wood, Pinedale, Wyoming.

Representing Appellees: William L. Miller of Miller & Fasse, P.C., Riverton, Wyoming.

Before GOLDEN, LEHMAN, KITE, and VOIGT, JJ., and BROOKS, D.J.

KITE, Justice.

[¶ 1] To access their ranch, John and Mary Kay Jensen (Jensens) claimed an irrevocable license to use a road located on land belonging to their neighbors, Larry and Sharon Lozier, as trustees of the Larry Lozier and Sharon Lozier Trust (Loziers), and John B. and Sylvia Harber, Trustees under the Harber Family Trust (Harbers). The Jensens purchased their ranch from Mr. Jensen's parents, who had used the road for many years, and claimed they made certain improvements in reliance on continued permissive use of the road. The district court found an irrevocable license and granted a permanent injunction against the Loziers and the Harbers preventing them from interfering with the Jensens' use of the road. We hold the district court erred when it failed to find all of the required elements of an irrevocable license, and we reverse.

ISSUES

[¶ 2] The Harbers and the Loziers present the following issues for review:

A. Was the Appellees' reliance on the continued permissive use of the subject road reasonably sufficient to be in good faith and to constitute a "fraud" where there was no express grant of permission only acquiescence?

B. Was the reliance of the Appellees on the mere acquiescence of the landowners over whose lands the subject access road crossed, sufficient to give rise to an irrevocable license where there was no actual request for the continued use of said road and express consent given?

C. Did the District Court err in granting a permanent injunction where an injunction limited to the life of the improvements would have allowed Appellees to recover their economic investment?

D. Did the District Court err in granting an overbroad irrevocable license for general access use which exceeds the access necessary to utilize the constructed improvements from which the irrevocable license developed?

[¶ 3] The Jensens phrase this issues as:

I. Did the district court err in finding that the appellees a[c]quired an irrevocable license for the use of the historic road?

II. Did the district court err in granting a permanent injunction enjoining the appellants from interfering with the appelle[es'] use of the historic road?

III. Did the district court err by granting an irrevocable license which is overbr[oa]d?

FACTS

[¶ 4] Beginning in the 1930s, the Jensen family owned and operated a ranch in Sublette County, Wyoming. John and Mary Kay Jensen purchased the ranch from John's parents in 1975. Throughout their seventy years of ownership, the Jensen family accessed the ranch using a road crossing the Lozier and Harber property, which connected to State Highway 353. The road was the only existing means by which the Jensens could access their ranch headquarters year around. The Jensens, Loziers and Harbers were the only people who used the road, and they used it exclusively for ranch operations. The parties agreed that the Jensens' use of the road was at all times permissive and no written easement existed. Without informing the Loziers and the Harbers, or seeking specific permission to continue to use the road, the Jensens purchased the ranch in 1975 and made improvements, including rebuilding corrals in 1977, building two calving sheds in 1980 and 1981, and building a storage shed in 1997. The Jensens spent approximately $9,500 building the sheds. They did not provide evidence of the cost of the other improvements. The ranch was valued at approximately $2,000,000 at the time of trial. The southeast corner of the Jensen property abuts the Sublette County Boulder Lake Road, which could provide the Jensens with alternate access to their property. However, no road exists from their ranch buildings to that county road and the land in that area is boggy and impassable in the summer months.

[¶ 5] In 2002, Mr. Harber requested that the Jensens consider building a road on their own property to the Sublette County Boulder Lake Road and cease using the road across their property. The record reflected that it would cost between $20,000 and $40,000 to construct a road through the boggy area in the southeast corner of the Jensen property to the adjoining county road. When the Jensens refused, the Harbers gave notice that permission to use the road on their land would terminate on December 21, 2002. Ultimately, the Harbers locked a gate across the road where it intersects State Highway 353. The Jensens filed a complaint alleging they had acquired an irrevocable license to use the road and sought an injunction prohibiting any interference with their use of the road. The district court granted a preliminary injunction allowing the Jensens to continue to use the road until final resolution of the case. The case was tried to the court and no transcript of the trial was prepared. However, pursuant to W.R.A.P. 3.03, the parties prepared a statement of the evidence, which the district court adopted. In addition, the district court personally viewed the access road, the Jensen ranch and improvements, and the proposed access road to the Sublette County Boulder Lake Road.

[¶ 6] The district court entered judgment in favor of the Jensens finding they had acquired an irrevocable license to use the road across the Harber and Lozier property. In support of that conclusion, the court found the Jensens had historically used the road, and they had constructed improvements in reliance upon the permissive use of the road, although they had not sought permission for continued use of the road before doing so. In addition, the district court concluded the Jensens had no other "practical" access to the ranch and would be irreparably harmed if they were prevented from using the historical access. The court granted a permanent injunction prohibiting the Harbers and Loziers from interfering with the Jensens' use of the road. The Harbers and Loziers filed a timely appeal of the judgment.

STANDARD OF REVIEW

[¶ 7] When reviewing the factual findings of a district court following a bench trial, we apply the following standards:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail re-weighing disputed evidence. Findings of fact will not be set aside unless they are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

Life Care Centers of America, Inc. v. Dexter, 2003 WY 38, ¶ 7, 65 P.3d 385, ¶ 7 (Wyo.2003). Findings may not be set aside because we would have reached a different result. Double Eagle Petroleum & Mining Corp. v. Questar Exploration & Production Co., 2003 WY 139, ¶ 6, 78 P.3d 679, ¶ 6 (Wyo.2003). Also, in reviewing a trial court's findings of fact,

"we assume that the evidence of the prevailing party below is true and give that party every reasonable inference that can fairly and reasonably be drawn from it. We do not substitute ourselves for the trial court as a finder of facts; instead, we defer to those findings unless they are unsupported by the record or erroneous as a matter of law."

We affirm the trial court's findings if there is any evidence to support them.

Life Care Centers, ¶ 7 (citation omitted).

[¶ 8] When reviewing questions of law de novo, we afford no deference to the decision of the district court. Double Eagle Petroleum, ¶ 7. Requests for equitable relief are matters over which the district court exercises broad discretion. Wilson v. Lucerne Canal and Power Co., 2003 WY 126, ¶ 9, 77 P.3d 412, ¶ 9 (Wyo.2003). We, therefore, review the district court's determination that an irrevocable license existed under the abuse of discretion standard.

DISCUSSION

[¶ 9] The Harbers and the Loziers contend the district court erred in finding the evidence supported the creation of an irrevocable license because the Jensens' reliance on continued permissive use of the road was not reasonable. They contend that mere acquiescence, without notice, is insufficient to create an irrevocable license and that the Jensens were required to show an express grant of permission or that they were induced into undertaking the improvements on their property in reliance upon their neighbors' longstanding permission to use the road. In addition, the Harbers and the Loziers contend a permanent injunction exceeds what was necessary to allow the Jensens to recover the economic value of their improvements. The Jensens respond that they made significant expenditures in reliance upon their neighbors' historic acquiescence, warranting the district court's finding of an irrevocable license.

[¶ 10] A license is the authority to do certain acts on land without possessing any interest in the land. The privilege granted by a license is generally personal, revocable, and non-assignable. As a personal privilege, a license is generally revocable at the will of the licensor for any reason and without notice. Jon W. Bruce and James W. Ely, Jr., The Law of Easements and Licenses in Land, § 11.1 (West 2001). In certain circumstances, courts have determined licenses to...