Johnson v. Whelan

• Decision Date: 26 March 1935
• Docket Number: 24118.
• Citation: 42 P.2d 882,171 Okla. 243,98 A.L.R. 1096,1935 OK 312
• Parties: JOHNSON v. WHELAN et al.
• Court: Oklahoma Supreme Court

42 P.2d 882

171 Okla. 243, 98 A.L.R. 1096, 1935 OK 312

JOHNSON v. WHELAN et al.

No. 24118.

Supreme Court of Oklahoma

March 26, 1935

Syllabus by the Court.

1. The owner of a town lot may enjoin owner of adjacent lot from obstructing paved private driveway, constructed on medial line by previous owners, each of whom contributed portion of his lot and half of the expense of the driveway, where such way has been in continuous use for more than 15 years, even though no writing was executed by either owner at any time granting a way to the other.

2. While the mere permissive use of a way over the land of another will not ripen into an easement, yet one who joins his adjacent landowner in the construction of a paved private way over and along the medical line has given such adjacent owner more than a mere license. Each owner, by use of the driveway, is continuously asserting an adverse right in the portion of the way on the other's lot. And from such use for 15 years the law raises a presumption of the grant of an easement.

Appeal from District Court, Oklahoma County; Lucius Babock, Judge.

Action by Agnes E. Whelan and Robert Whelan against Luella K Johnson. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Warren K. Snider, of Oklahoma City, for plaintiff in error.

L. D Threlkeld, of Oklahoma City, for defendants in error.

PER CURIAM.

This is an appeal from the district court of Oklahoma county. Parties will be referred to as they appeared in the trial court.

Plaintiff and defendant own adjacent lots in Oklahoma City. Plaintiffs own the west lot and defendant the east lot. Both lots face the north, and in 1908 were improved with substantial residential buildings on the northerly portion and smaller buildings to rear on the south. In 1908 one Binns owned the west lot and one Collet the east lot. These owners jointly constructed a concrete paved driveway on their medial line, from the street on the north to small buildings on rear, each furnishing half of the expense. Apparently each intended to furnish half the ground for the seven-foot driveway. However, a survey in 1931 showed some six or nine inches more on the east than on the west lot. No writing was executed by either owner, nor by subsequent owners, granting to the other any rights or privileges in the lot of the other.

In 1919 plaintiffs purchased by warranty deed, containing usual appurtenance clause, the lot to the west. In 1921 defendant purchased east lot. There were other owners of each lot between the builders of the pavement and the plaintiffs and defendant. At no time, however, was the ownership in one person. At all times the driveway has been used jointly by the occupants of the two lots. In 1931 defendant built an additional strip of pavement on her side, and threatened to construct a wall or fence along the lot line, which would have left insufficient room for a driveway between the house of the plaintiffs and the property line. Plaintiffs brought this suit to enjoin the defendant from interfering with their use of the driveway. Upon the trial the court granted a permanent injunction, prohibiting defendant from interfering with the driveway.

Defendant brings the case here, and contends that plaintiffs have shown nothing but a mere license to use of that portion of the driveway on the defendant's lot, and that a mere parole license cannot ripen into an easement.

While it may be true, as contended by defendant, that mere permissive use of a way over the lands of another, however long indulged in, will not ripen into an easement, for the reason that such use bears no...