Irion v. Nelson

• Decision Date: 14 October 1952
• Docket Number: No. 34390,34390
• Citation: 249 P.2d 107,207 Okla. 243
• Parties: IRION v. NELSON.
• Court: Oklahoma Supreme Court

Page 107

249 P.2d 107

207 Okla. 243

IRION v. NELSON.

No. 34390.

Supreme Court of Oklahoma.

Oct. 14, 1952.

Syllabus by the Court.

1. In a case of equitable cognizance tried to the court, the Supreme Court will review the evidence, even though the motion of plaintiff in error for judgment was not renewed at the conclusion of all the evidence.

2. The burden of proving acquisition of a highway by prescription is on the party asserting it.

3. Proof of an open, notorious, continuous and uninterrupted use by the public of a road for the prescriptive period, without evidence to explain how it began, raises a presumption that it was adverse and under claim of right.

4. A mere permissive use of a way over the land of another, however long indulged in, will not ripen into an easement.

5. Proof of adverse user, to create prescriptive right to road traversing uninclosed land, must be much more convincing than proof required to establish same right when road traverses clear or inclosed land.

6. Where it appears that the original use of a road was permissive, the burden of proving that such permissive use had ceased and had become adverse is thrown upon the party asserting same.

7. The construction and maintenance by a landowner of gates, and bars across a road traversing the land constitutes evidence indicating that the owner intends to assert ownership and control of the land included in such road, and that the public's use thereof is permissive only.

8. Record examined and held that a public highway has not been acquired across defendant's land by prescription.

Hollis Arnett, Mangum, and Tolbert & Gillespie, Hobart, for plaintiff in error.

W. B. Garrett, Mangum, for defendant in error.

PER CURIAM.

Dock Nelson (Vestal Taylor Nelson) filed this suit against Emanuel Irion to obtain an injunction against the maintenance by Irion of gates or other obstructions across a road traversing defendant's farm. After a hearing the trial court rendered judgment granting the injunction, and permitting the use of gates for limited times, and defining size of the road, depth of ditches, etc. From this judgment defendant has appealed and plaintiff files cross-appeal. For convenience the parties will be referred to as they appeared in the trial court.

From the record it appears that the plaintiff and the defendant own adjoining farms, the defendant's place being just north of plaintiff's; that each of these farms is bounded on the west by a section line, but that no public highway in use follows the section line; that near the northwest corner of defendant's place a road, which had followed said section line for a short distance, branches off to the southeast and traverses defendant's farm, down to plaintiff's place, which it enters, said road now ending at or about plaintiff's house; that this road formerly went on to Mangum and was at that time in rather general use, but that for many years it has not extended beyond plaintiff's house, being used only by those going to and from that place; and that said road in traversing defendant's farm passes over privately owned property. It further appears that defendant's land was open and unfenced until shortly after the turn of the century when it was 'broke out' and was fenced; that gates were constructed across the said road which traversed defendant's farm, at the point of entrance on the northwest and the point of exit on the south, which gates were maintained from time to time thereafter and which were sometimes kept closed (particularly when cattle were being pastured) and sometimes left open; that these gates were not of solid construction, but were made of wire, attached to posts, and could be let down and thrown to one side to open the gap; and that when the gates were closed it was necessary for anyone traveling the road to open and close same.

Plaintiff contends that the public had used the road for something like fifty years, and that by virtue thereof a highway by prescription had been acquired. Defendant admits the long use of the road, but says that such use was permissive, and not adverse, and accordingly did not ripen into a highway by prescription.

Although defendant demurred to the evidence at the close of plaintiff's case in chief and moved for judgment, such demurrer and motion were not renewed at the conclusion of all the evidence. Because of this, plaintiff contends that this Court cannot now review the evidence. It has been frequently held, however, that in a case of equitable cognizance it is the province and duty of the Supreme Court on appeal to review and weigh the evidence. Hunter v. Murphy, 124 Okl. 207, 255 P. 561; Galloway v. Loffland, 144 Okl. 176, 289 P. 774; Hudson v. Reaves, 194 Okl. 178, 147 P.2d 986. This is true, even though no demurrer to the evidence or motion for judgment thereon was made by the appealing party. Saied v. Kuori, 146 Okl. 51, 293 P. 245; Schwabacher v. Jennings, 118 Okl. 51, 246 P. 588.

The principal question for determination is whether a highway has been acquired by prescription over the privately owned farm of defendant. The obtaining of an easement in this way is not looked upon in favor by the courts, and it is essential that every legal element required to constitute prescription concur before it will be upheld. 28 C.J.S., Easements, § 10, page 645. We would do well, therefore, to consider some of the elements necessary for the acquisition of the right.

In 25 Am.Jur. 347-348 the rule is thus stated:

'In order to constitute a highway by prescription as against the owner of the property over which it is claimed, the use, as in other cases generally, must have been adverse, continuous, and exclusive throughout the prescriptive period. If the use of a way is interrupted, prescription is annihilated, and must begin again, and any unambiguous act by the owner, such as closing the way at night, or erecting gates or bars which evinces his intention to exclude the public from its uninterrupted use, destroys the prescriptive right.'

The burden is upon one claiming an easement clearly to establish such right. Catterall v. Pulis, 137 Okl. 86, 278 P. 292; Board of County Commissioners of Jackson County v. Owen, 196 Okl. 538, 166 P.2d 766. However, the burden of proof sometimes shifts to the opposite party. In 28 C.J.S., Easements, § 68, page 736 it is said:

'* * * the general rule is that proof of an open, notorious, continuous and uninterrupted user for the prescriptive period, without evidence to explain how it began, raises a presumption that it was adverse and under a claim of right, or, as is sometimes stated, raises a presumption of a grant, and casts on the owner of the servient tenement the burden of showing that the user was permissive or by virtue of some license, indulgence, or agreement, inconsistent with the right claimed.'

This in substance was our holding in Friend v. Holcombe, 196 Okl. 111, 162 P.2d 1008.

A use by the public of a road over privately owned land with the permission of the owner is not adverse, and cannot give rise to an easement by prescription, no matter how long continued. Thomas v. Morgan, 113 Okl. 212, 240 P. 735, 43 A.L.R. 934; City of Hollis v. Gould, 190 Okl. 335, 123 P.2d 241; Friend v. Holcombe, supra; Board of County Commissioners of Jackson County v. Owen, supra. It follows, therefore, that if the use of the road in question was permissive, no highways by prescription was acquired.

From the testimony it appears that in traversing the land now owned by defendant the road in question originally passed through unfenced grassland and open prairie country and was in use before the year 1900. This seems to be clearly established by the testimony of plaintiff's witnesses. The evidence in the case is further to the effect that the beginning of cultivation of the land, the errection of any fences, gates, etc., occurred sometime after the turn of the century.

In speaking of the rule that an open, continuous use of land for the prescriptive period will be presumed to be under claim of right, we said in Friend v. Holcombe, supra [196 Okl. 111, 162 P.2d 1010]:

'This rule, however, appears to be elastic and the proof of adverse user, to create prescriptive right to passway that traverses uninclosed lands, must be much more convincing than proof required to establish same right when passway traverses clear or inclosed land. Evans v. Bullock, 260 Ky. 214, 84 S.W.2d 26. The reason supporting this latter rule is that few owners of uninclosed land pay any attention to the travel over it, but when there is much travel over inclosed or cultivated land it is, as a rule, a serious inconvenience as well as a source of annoyance to the owner and as to the latter status it will be presumed that the use was with the knowledge of the owner, and that if he permits its use for the requisite period without attempting to interfere, his action will be taken as his implied consent thereto, while the mere fact that he permits the public to travel at liberty through unimproved lands might not raise any presumption of a grant.'

The evidence in the present case fails to show that...