Lewis v. Patton

• Citation: 113 P. 745,42 Mont. 528
• Parties: LEWIS v. PATTON et al.
• Decision Date: 08 February 1911
• Court: Montana Supreme Court

113 P. 745

42 Mont. 528

LEWIS v. PATTON et al.

Supreme Court of Montana

February 8, 1911

Appeal from District Court, Beaverhead County; J. B. Poindexter Judge.

Action by O. H. Lewis against Margaret Patton and others. From an order denying a temporary injunction, plaintiff appeals. Affirmed.

Pease & Stephenson, for appellant.

John Lindsay, for respondents.

HOLLOWAY J.

Appeal from an order denying a temporary injunction. The parties to this action own adjoining ranches in Beaverhead county. In order for plaintiff conveniently to get to the public highway from his dwelling house, it is necessary for him to pass over a small portion of defendant's land. In 1903 or 1904 plaintiff constructed a roadway of a permanent character from his dwelling to the public road, fenced the same, and used it uninterruptedly until late in 1909, when defendants obstructed such roadway and threatened to continue such obstruction.

In his complaint the plaintiff alleges that he owns a right of way for such roadway over the lands of defendants. Upon filing this complaint and an affidavit in support of it, the district court issued an order to show cause, and a hearing was had. Upon the hearing the plaintiff testified that for 400 feet or more his roadway over the land of defendants was constructed through a swamp, and for 700 feet or more the road was built through the same swamp on plaintiff's land; that it cost about $1,200 to build the road; that it was built in a manner designed to be permanent; that it was built and fenced at plaintiff's expense; that he was engaged in work upon it for three years or more, and enjoyed the uninterrupted use of it for two years after it was completed; that, at the time the road was built, Hugh Patton since deceased, the husband of Margaret Patton, owned the Patton ranch; and that before he commenced building the road he had a conversation with Hugh Patton. When asked to give the conversation an objection was interposed, but overruled pro forma, with the right reserved in counsel for defendants to move to strike out the evidence. Plaintiff then testified "I went to Patton and told him I wanted to build a road, and showed him the route, and he very willingly consented to go and look it over--the proposed road and the old road. After we looked over the old road he said to me, 'We are uncertain where the lines are, and the route you propose is the best, and I have no objection to it.' And he consented to it. *** Q. When you were talking to Mr. Patton about this matter, was there any conversation in regard to the manner in which the road was to be built? A. Yes. He said, 'Now let me make a suggestion as to how to build this road, having had a great deal of experience in making roads; I would corduroy the road.' I told him, 'I don't want to make a temporary road, I want to make a permanent road.' And when I got through with my statement as to how I waisted to make the road he complimented me and said my theory was right. He says, 'You will make a road there that will last forever.' And at different times in the construction of this road he complimented me in regard to the way I was building it." Plaintiff further testified that while he was building the fence along this roadway, Patton came to his work and complimented him upon the character of fence he was building, saying: "Your fence is like your road; it is very permanent. You will have a fence there forever." And again plaintiff testified that when he was constructing a gate at a point where the road connected with the public highway, Patton came to him and complimented him upon the manner in which he was doing the work and in a joking way said: "I wouldn't have given you this right of way had I known you were going to put up so much better a gate than mine." Upon cross-examination plaintiff testified that he never had any writing with Patton concerning this right of way. Defendant moved that all evidence of the conversation between plaintiff and Hugh Patton be stricken out, and this motion was sustained and the injunction refused. The foregoing is all the evidence material to the question which was before the lower court.

In Great Falls Water W. Co. v. Great Northern Ry. Co., 21 Mont. 487, 54 P. 963, this court reviewed at great length the authorities dealing with the question of a license resting in parol. The doctrine of that case was approved in Prentice v. McKay, 38 Mont. 114, 98 P. 1081, and in Archer v Chicago, Milwaukee & St. P. Ry. Co., 41...