Hester v. Sawyers

• Decision Date: 07 September 1937
• Docket Number: No. 4230.,4230.
• Citation: 41 N.M. 497,71 P.2d 646
• Parties: HESTERv.SAWYERS et al.
• Court: New Mexico Supreme Court

41 N.M. 497

71 P.2d 646

HESTER

v.SAWYERS et al.

No. 4230.

Supreme Court of New Mexico.

Sept. 7, 1937.

Appeal from District Court, Grant County; George W. Hay, Judge.

Action by Joan Hester against W. W. Sawyers, Elizabeth C. T. Warren, attorney in fact for Joan Hester, and Elizabeth C. T. Warren, individually. Judgment for defendants, and plaintiff appeals.

Affirmed.

A party who abandoned an old road over the land of another, in which he had the permissive right of user, and established a new road over such land subsequent to its inclosure, and kept such road graded and in repair, exercising control thereover for more than ten years, acquired a prescriptive right in such new right of way in the absence of proof that such use was permissive, since it was presumed after ten years' use to have been hostile, adverse, and acquiesced in by the owner of the land.

Hubert O. Robertson, of Silver City, for appellant.

Wilson & Woodbury, of Silver City, for appellees.

BRICE, Justice.

[1] It will be unnecessary to refer to the pleadings. The question is whether the district court erred in holding that appellee has title by prescription to a right of way over appellant's land.

If there is substantial evidence to support the findings and judgment of the court, it will not be disturbed by us. The evidentiary facts are practically undisputed and are as follows:

The parties are adjoining landowners. At the time and before appellee bought his property in 1920, appellant was the owner of the land over which the easement is claimed. Persons owning land on three sides had theretofore built fences around their own land, thus in effect placing fences on three sides of appellant's land; but the east side was open and all persons desiring so to do, could pass across it.

The two tracts of land are separated by a fence belonging to appellee, which is appellant's west boundary. The original way had its beginning at appellee's house, passed an opening in the fence, and ran easterly across appellant's land to a road along her boundary, which at that time was unfenced.

In 1922 a golf club secured the consent of appellant to place a fence along the east boundary, thus inclosing the land; after which it was used in part as a golf course. Appellee claimed a right to pass over the land at that time, though he did not know who owned it. The golf club secured his consent to the building of the fence. He had no deed to the road, paid no taxes on it, and based his claim of right on the fact that “it was the only way to get in and out and had been used for years.”

At the time the east fence was built the road was materially changed. From the west boundary it followed the old road a very short distance, then turned away to the south of it some distance, thereafter paralleling it for the greater distance across appellant's land, and terminated on the road at the east side in a lane south of “the old road.” A map was introduced in evidence showing the “old road,” and the “present road,” from which it appears that they are not substantially at the same location, though practically parallel.

Since the east fence was built, appellee, his tenants, visitors, and those having business with him (and no other persons), have used the road daily and openly, without interruption or objection from any one until just prior to the filing of this suit in the district court. Appellee did not have the affirmative consent or authority of appellant, or any person, to use the road. When he gave his consent to the golf club to build the fence, he stated to its representative: “I don't lose my right to come down and out of this canyon.” He sells lumber at his house and has no other way out. He did not buy his land from appellant. He testified: “My business is selling lumber at my claim up above my house, with no other way than this road to get to and from my place. I have rent houses and this road is the only way my tenants have to go back and forth. If the road is closed I will have to discontinue my business and move out of there. I claim this road as my right of way.”

Since the east fence was built, more than ten years prior to the filing of this suit, appellee has continuously graded and kept the road in condition for travel for his own use.

Just prior to the filing of this suit the appellant saw the appellee and insisted that he change the road to run further north so that it would interfere less with her property. Appellee agreed to do this, and to that end began the grading of a new road. This appellant claimed did not comply with her directions, so she closed appellee out with a fence, which was torn down by him. This suit followed.

[2][3][4][5] There is no specific statute in this state under which title to an easement or other incorporeal hereditament can be obtained by prescription, but appellant claims that section 83-122, Comp.St.1929, applies to corporeal and incorporeal hereditaments. It reads in part as follows: “No person or persons, nor their children or heirs, shall have, sue or maintain any action or suit, either in law or equity, for any lands, tenements or hereditaments, against any one having adverse possession of the same continuously in good faith, under color of title, but within ten years next after his, her or their right to commence, have or maintain such suit shall have come, fallen or accrued, and all suits, either in law or equity, for the recovery of any lands, tenements or hereditaments so held, shall be commenced within ten years next after the cause of action therefor has accrued: ***‘ Adverse possession’ is defined to be an actual and visible appropriation of land, commenced and continued under a color of title and claim of right inconsistent with and hostile to the claim of another.”

If this statute applies to easements, then appellee has no title for he does not claim, nor did he prove, color of title.

It was the ancient rule of law that the words “lands, tenements or hereditaments” comprehended only freehold estates and did not apply to easements or other incorporeal hereditaments, Hutchinson v. Bramhall, 42 N.J.Eq. 372, 7 A. 873; likewise statutes of limitation like that to which we have referred, which bar actions to recover lands held adversely under color of title for a period of years, are generally held to apply to corporeal hereditaments only.

“Prescription may be defined to be a mode of acquiring title to incorporeal hereditaments by continued user, possession or enjoyment had during the time and in the manner fixed by law. The term properly applies only to incorporeal rights. An interest in the land of another greater than an incorporeal hereditament, such as the possession and use of a building thereon, cannot be established by prescription. Prescription is distinguished from custom in that the former is a personal usage or enjoyment confined to the claimant and his ancestors or those whose estate he has acquired, while the latter is a mere local usage, not connected to any particular person, but belonging to the community rather than to its individuals. Adverse possession is distinguished from prescription in that it is, properly speaking, a means of acquiring title to corporeal hereditaments only, and is usually the direct result of the statute of limitations; while prescription is the out-growth of common-law principles, with but little aid from the legislature, and has to do with the acquisition of no kind of property except incorporeal hereditaments.” 1 Thompson on Real Property, § 372.

“Prescription applies only to incorporeal hereditaments. An interest in the land of another greater than an incorporeal hereditament, such as the possession and use of a building thereon, cannot be established by prescription. The statutes of limitations do not directly apply to actions in which incorporeal hereditaments, such as easements, are involved, but only to actions for the recovery of land.” 1 Thompson on Real Property, § 375.

See 19 C.J. title Easements, § 18; 9 R.C. L. title Easements, § 32; 2 C.J.S. title Adverse Possession, § 2; Murray v. Scribner, 74 Wis. 602, 43 N.W. 549; Boyce v. Missouri Pacific R. Co., 168 Mo. 583, 68 S.W. 920, 58 L.R.A. 442.

[6][7][8] Appellant does not seriously contend that the statute of limitation applies to easements, but insists that if it does not, then the right is one at common law and that twenty years use is necessary to acquire title by prescription.

The courts of England and, with few exceptions, of the United States, have adopted the rule that the period of use for acquiring such title by prescription corresponds to the local statute of limitation for acquiring title to land by adverse possession.

“The period for acquiring an easement in land corresponds to the local statute of limitation as to land. It would be irrational to hold that an easement may not be acquired by the same lapse of time required to confer title to the land by adverse possession. The period of limitation for the bringing of actions to recover the possession of land is generally adopted as the period for perfecting easements by prescription. This rule is based upon the assumption that if there had been no grant, the owner would have put an end to the wrongful occupation before the full period of limitation had expired. And while it is often said that from such user a grant will be presumed, the presumption in effect amounts to a positive rule of law, and evidence that no grant was made would not be material. ***” 1 Thompson on Real Property, § 374.

See Boyce v. Missouri Pacific R. Co., supra; Johnson et al. v. Lewis et al., 47 Ark. 66, 2 S.W. 329, 14 S.W. 466; 19 C.J. title Easements, § 18; 9 R.C.L. title Easements, § 32; Vereen & Sons Inc. v. Houser et al., 123 Fla. 641, 167 So. 45. This seems to have been the assumption of the Territorial Supreme Court in Stamm v. City of Albuquerque, 10 N.M. 491, 62 P. 973. Also see Trambley v. Luterman, 6 N.M. 15, 27 P. 312.

Appellant, anticipating...