Kirk v. Schultz, 6840

• Decision Date: 07 October 1941
• Docket Number: 6840
• Citation: 63 Idaho 278,119 P.2d 266
• Parties: EDGAR KIRK and CORA KIRK, Appellants, v. MARRY A. SCHULTZ and SUSAN SCHULTZ, Respondents
• Court: Idaho Supreme Court

119 P.2d 266

63 Idaho 278

EDGAR KIRK and CORA KIRK, Appellants, v. MARRY A. SCHULTZ and SUSAN SCHULTZ, Respondents

No. 6840

Supreme Court of Idaho

October 7, 1941

EASEMENTS-PUBLIC LANDS-ADVERSE POSSESSION-MAINTENANCE OF EASEMENT-EXTENT OF USE.

1. Generally, in order to constitute an "acceptance" of the congressional grant of right of way for public highway across public lands, there must be either use by the public for such a period of time and under such conditions as to establish a highway under state law, or there must be some positive act or acts on part of the proper public authorities clearly manifesting an intention to accept the grant with respect to the particular highway. (43 U.S. C. A. sec. 932; Sess. L., 1881, p. 277, sec. 1; Rev. Stats. 1887, sec. 851.)

2. Findings of fact of the trial court based on conflicting evidence from which reasonable men might draw different conclusions will not be disturbed on appeal.

3. In action to establish a public highway, evidence sustained judgment for defendant on ground that there were no positive acts on part of public authority clearly manifesting an intention to accept trail as a public highway as required by federal law, and that use of the trail by the public was merely casual and was insufficient to establish the highway.

4. Adverse possession cannot be initiated before issuance of a patent when the possession is asserted in defense of a claim of title adverse to that of the government.

5. One claiming an easement or private road by adverse possession for statutory period as against all persons except the United States may assert such possession as against any person in occupancy while conceding the superior title of the United States.

6. Persons using a private way over public domain may by their conduct, openly and notoriously pursued, apprise one subsequently acquiring title from the United States that they are claiming the way as of right, and thus make their possession "adverse" as against the entryman who would take title burdened with the easement.

7. Possession and right to the use of an easement can be acquired as against an occupant or claimant while the land is still public domain and before patent or during period of withdrawal by the United States for power purposes or other public use.

8. One acquiring an easement and right to travel over the lands of another not only assumes burden of maintaining the right of way but all other burdens incident to the use.

9. Where plaintiff's predecessors used trail for period of 26 years during which time the land was public domain and for two years subsequent to its withdrawal by the government for a federal power reserve, and plaintiffs used the trail for approximately 24 years during which the land was withheld as a federal power reserve, the plaintiffs obtained right of way over the land by "prescription" as against defendant who went into possession of the land 21 years after plaintiff's first use of the trail.

10. Generally, an owner of land subject to an easement of a nature which requires the maintenance of a means for its enjoyment is not bound to keep such means in repair or to sustain any expense in maintaining it.

11. Plaintiffs, who obtained right of way over defendant's land by prescription, had duty to open and close gate placed across the right of way on the defendant's land when using the right of way.

12. Generally, the location of an easement obtained by prescription is determined by its practical location and use over the period required to establish it, if actual location is not otherwise fixed.

13. The use of a right of way obtained over defendant's land by prescription was limited to reasonable and necessary enjoyment by plaintiffs for the purposes, and in the manner and to no greater extent than right of way had previously been used, that is, to no greater extent than reasonably necessary for its use.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Action to establish a public highway; also, an action to establish an easement by prescription. Judgment for defendants. Affirmed as to first cause of action; reversed as to second cause of action.

Judgment reversed as to appellants' second cause of action. Judgment as to appellants' first cause of action affirmed. Costs to appellants.

Delana & Delana, for Appellants.

Use by the public alone creates the highway and severs title to the highway from the public domain, and anyone taking title from the Government takes the title subject to the easement. ( Northern Pac. Ry. Co. v. Pyle, 19 Id. 3 at 12; Estes Park Toll Road Co. v. Edwards, 32 P. 549, at 550, (Colo.); Murray v. City of Butte, 14 P. 656, at 657,. (Mont.).)

Where a right of way is used for the Statutory period, such use is presumed to be under a claim of right and with knowledge of the owners of servient tenant, and adverse. (Village of Fairview v. Franklin Irr. Co., 59 Idaho 7, at 13-- 79 P.2d 531; Eagle Rock Corp. v. Idamont Hotel Co., 59 Idaho 413-- 85 P.2d 242, at 249, para. 7; Cox v Forrest, 60 Md. 74, at 79.)

Adverse possession of highways can be established against an occupant or claimant of the public domain while the fee is in the United States and before patent. (N. Pac. Ry. Co. v Pyle, 19 Idaho 3-- 112 P. 678; Smith v Mitchell, 58 P. 667, at 668 (Wn.); State v. Rixie, 97 P. 804, para. 2 (Mn.).)

Willis C. Moffatt and Wm. F. Galloway, for Respondents.

Title 43 United States Code Annotated, Section 932, granting rights of way for the construction of highways over public lands not reserved for public purposes remains in abeyance until a highway is established under some public law authorizing its establishment, and takes effect as a grant at that time. (Title 43, Section 932, U.S.C. A.; Stofferan vs. Okanogan, 136 P. 484, 76 Wash. 265; State vs. Nolan, 191 P. 150, 58 Mont. 167; Frank A. Hubbell vs. Gutierrez (N. M.), 22 P.2d 225; Gooding Highway District vs. Idaho Irrigation Co., 164 P. 99, 30 Idaho 232.)

To establish a highway by prescription, there must be an actual adverse public use, general, uninterrupted, and continued for the period of the statute, and a casual use is not sufficient. (Parrott vs. Steward (Ore.), 132 P. 523; Saeger vs. Baldwin (Wash.), 130 P. 114; City of Spokane vs. Great Northern Ry. Co. (Wash.), 158 P. 244.)

No prescriptive easement could be acquired by plaintiff against the federal government nor against these defendants before patent issued. (Hemphill vs. Moy, 31 Idaho 66.)

BUDGE, C.J. Givens, Morgan, Holden, and Ailshie, JJ., concur.

OPINION

BUDGE, C.J.

Appellants set up two causes of action in their complaint. First, to establish a public highway over respondents' land and to compel the removal of an obstruction, to-wit, a gate maintained thereon by respondents. Second, to establish an easement over respondents' land by prescription. Judgment for respondents, from which this appeal is prosecuted.

Appellants own considerable land on the South side of Boise River in the vicinity of Birch Creek. Respondents own land about a mile below appellants' land. A short distance below respondents' residence is Charcoal Creek. Approximately midway between appellants' land and respondents' land is a curve in the Boise River known as Gooseneck. The alleged right of way in question is between Charcoal Creek and Gooseneck.

In May, 1936, respondents padlocked the gate on the alleged right of way and refused to permit appellants to pass through the same. In order for appellants to reach Boise, their market, or their placer mines, they must cross the Boise River by way of an old abandoned railroad bridge at Gooseneck; or go a short distance up the river and reach the state highway by crossing a bridge near More's Creek; or go down the South side of the river across respondents' land and reach the road at Charcoal Creek. Appellants claim they have a right to use this latter means of ingress and egress from their lands for the following reasons as alleged in their complaint. First, that it is a public highway established as such under the Federal Statutes of 1866, or under the Territorial Laws of 1881 or 1887. Second, that appellants and their predecessors in interest acquired a prescriptive easement across respondents' land. Respondents deny each of the above allegations.

Appellants introduced evidence to the effect that this alleged trail or road had been used as far back as 1878. Respondents introduced no evidence relative to its use prior to 1894. The Court found that it was only casually, and not regularly, used prior to 1890; that, therefore, no public highway was established prior to that date, or at any time. The Court denied relief on appellants' second cause of action because "no prescriptive easement could be acquired by plaintiffs against the Federal government nor against these defendants before patent by the Federal government."

Appellants rely upon eight assignments of error; however, only two questions are presented. First, was the use by the public of the trail or road prior to 1890 only casual and desultory, and therefore insufficient to establish a public highway. Second, could a prescriptive easement be acquired against the Federal government, or against respondents prior to issuance of patent by the Federal government.

The evidence clearly established that in 1882 there was a road from Boise up to the mouth of Charcoal Creek, and a trail traversing respondents' land, extending to Birch Creek. The evidence is conflicting as to the width of the trail or road; but the witnesses generally agree that it was well-marked, used as a stock trail, and by miners, hunters, fishermen, and persons on horseback casually and desultorily to 1890 or 1891, when...