Jensen v. Gerrard

• Decision Date: 07 January 1935
• Docket Number: 5296
• Court: Utah Supreme Court
• Parties: JENSEN v. GERRARD et al

39 P.2d 1070

85 Utah 481

JENSEN v. GERRARD et al

No. 5296

Supreme Court of Utah

January 7, 1935

Appeal from District Court, Second District, Weber County; Geo. S Barker, Judge.

Action by Henry L. Jensen against Eva Larsen Gerrard and others. Judgment for plaintiff, and defendants appeal.

AFFIRMED.

J. E Evans, of Ogden, for appellants.

Joseph Chez, of Salt Lake City, and Lewis J. Wallace, of Ogden, for respondent.

EPHRAIM HANSON, Justice. STRAUP, C. J., and ELIAS HANSEN, FOLLAND and MOFFAT, JJ., concur.

OPINION

EPHRAIM HANSON, Justice.

The plaintiff, Henry L. Jensen, is the owner of approximately 16 acres of land in Weber county. The defendant William T. Roylance, until May of 1931, owned a 10-acre tract which adjoins the Jensen land. The tract now owned by Jensen was formerly owned by Orson H. Hickenlooper, who about 1894 built a home on the place which he occupied with his family until 1917, when he sold to Mr. Jensen, who now occupies the place. The land owned by Mr. Roylance, although cultivated, had no buildings thereon and was never used for residence purposes. In May, 1931, the defendant William L. Gerrard purchased from Mr. Roylance the west 2 1/2 acres of the 10-acre tract and commenced the construction of a residence thereon.

The evidence discloses that Hyrum Roylance, the father of the defendant William T. Roylance, formerly owned the 10-acre tract; the defendant Roylance taking possession of the same in 1904 with the understanding that his father would convey to him the property, which he did in 1914. Other persons owned farming lands contiguous to the Hickenlooper and Roylance tracts. The road extended from these different tracts to the state highway on the east. Because of its heavy grade in places and the nature of the soil over which it extended, this road was impracticable for hauling heavy loads thereover. In 1891 Mr. Hickenlooper, in order to make his land more accessible to the county highway on the west, acquired by purchase from a Mr. Helm a strip of land one rod wide extending from what was then the west line of the Hickenlooper tract westerly across the Helm tract to the county road. The northeast corner of this strip was the same point as the southwest corner of the Roylance tract. At the time he acquired this strip Mr. Hickenlooper asked Hyrum Roylance and other adjoining landowners to join with him and open a corresponding strip easterly to connect with the highway on the east so that the lane would extend from one highway to the other. Mr. Hyrum Roylance and the other landowners refused and the roadway was opened no farther than to the Hickenlooper land. Immediately after acquiring this strip he fenced it on each side so as to form a lane to the county highway and placed a gate at the east end. A number of years afterwards a gate was placed at the west end so that some of Hickenlooper's cattle could be pastured in the lane. After Jensen acquired the property, he removed the lane fences and the east gate and replaced the west gate by another. Mr. Gerrard after purchasing the 2 1/2 acre tract claimed the right to use the roadway, to which use Mr. Jensen objected and brought this action to restrain the defendant from using the roadway, asserting ownership thereof in himself and that defendants, without his consent and without right or authority so to do, unlawfully drove horse-drawn vehicles, as well as automobiles and trucks, over said roadway and beyond to a point about 200 feet east of what formerly was the east end of the land. By their answer defendants denied that they were unlawfully using the roadway and alleged that they owned an easement of way 16 feet wide and extending over the full length of such strip of land for all purposes for which farmers ordinarily use farm roads; that they, their grantors and predecessors in interest, had used said strip of land as a means of ingress and egress to and from the respective lands of defendants for more than 45 years last past; that such use has been peaceable, continuous, uninterrupted, exclusive, open and adverse as of right, and with the knowledge and acquiescence of the plaintiff, his grantors and predecessors in interest. The allegations were denied by plaintiff in his reply.

The issues so made were tried to the court sitting without a jury. The court made findings in favor of the plaintiff, and defendants were permanently enjoined from making any use of the roadway. The court found, so far as material here, substantially the following facts:

That in the year 1891 Mr. Hickenlooper created the roadway in question and that in 1904 the defendant William T. Roylance was given permission by Mr. Hickenlooper to use the roadway to haul his crop of beets during the fall of the year and that Roylance paid Mr. Hickenlooper for such use; that Roylance continued to use the roadway for removing his fall crops; and that as further payment for the use of the roadway Roylance paid Mr. Hickenlooper certain farm products as well as small payments in money and permitted Mr. Hickenlooper to pasture on his (Roylance's) land, and this was the arrangement made from 1904 to 1909; that in 1915 Hickenlooper caused the gate at the easterly end of the land to be padlocked and thus barred Roylance from the use of the roadway, and in order that he might continue the use of the roadway for the remaining portion of the year, he paid Hickenlooper $ 2.50.

The court further found that about the year 1910 Mr. Roylance paid a further sum of money to Mr. Hickenlooper for permission to use the roadway for removing his fall crops, and that in 1917, after plaintiff became the owner of the property, Roylance was given permission by plaintiff to use the roadway to remove his crops upon condition that he (Roylance) would close the gate which had been replaced and maintained by plaintiff at the west end, and that whatever use defendants made of the roadway, the same was permissive and not adverse.

These findings are challenged by defendants, who claim there is not sufficient evidence to warrant such findings thus made by the court. This being a law case [Norback v. Board of Directors, etc. (Utah) 37 P.2d 339], this court is not permitted under the Constitution or the statutes to weigh the evidence. If there is any substantial competent evidence in the record to support the court's findings or the verdict of the jury, the judgment will not be disturbed in the absence of some error of law prejudicial to appellant. Jenkins v. Stephens, 64 Utah 307, 231 P. 112; Brown v. Union Pac. R. Co., 76 Utah 475, 290 P. 759. With this standard in mind we shall briefly review the evidence upon which the trial court made its findings.

Mr Orson H. Hickenlooper testified to the purchase of the strip of land from Helm and to the opening of the roadway thereon, and that after the roadway opened, the defendant Roylance asked permission to use it to get out his crops in the fall of the year, and that the use by Roylance was only occasional during the first few years, probably for about a week in the fall to get out the beet crop; that for other hauling he used the road to the east; that about 1915 or 1916 Roylance paid him $ 25 for the privilege of using the...