Lorang v. Hunt, 14961

• Decision Date: 12 December 1984
• Docket Number: No. 14961,14961
• Citation: 107 Idaho 802,693 P.2d 448
• Parties: Peter D. LORANG, Plaintiff-Appellant, v. Ricky D. HUNT and Sallie A. Hunt, husband and wife, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 448

693 P.2d 448

107 Idaho 802

Peter D. LORANG, Plaintiff-Appellant, v. Ricky D. HUNT and Sallie A. Hunt, husband and wife, Defendants-Respondents.

No. 14961.

Supreme Court of Idaho.

Dec. 12, 1984.

Allen V. Bowles, Moscow, for plaintiff-appellant.

Roy E. Mosman, Moscow, for defendants-respondents.

SHEPARD, Justice.

This is an appeal from a judgment against plaintiff-appellant Lorang, who brought the action seeking to quiet title in him as to a prescriptive easement over defendants-respondents Hunts' property. We affirm.

The Hunts own 3.7 acres of property, upon which they reside, abutting U.S. 95, a short distance north of Genesee, Idaho. Lorang owns a farm north of and adjoining the Hunt property. The Lorang property also abuts U.S. 95 for one-half mile. Since at least 1951, Lorang and his predecessors in interest have crossed over the Hunt property to reach the Lorang farm.

We note at the outset that Lorang does not claim nor does the evidence support an easement by necessity. As found by the trial court, "Although plaintiff's property fronts on Highway 95 for one-half of a mile, he finds it more convenient to reach his property by crossing defendants' front yard." (Emphasis added.) This appeal is therefore limited to Lorang's assertion that the nature of use of the Hunt property by Lorang and his predecessors in interest has created a prescriptive easement in favor of the Lorang property.

The elements of proof necessary to establish a prescriptive easement were set forth in West v. Smith, 95 Idaho 550, 557, 511 P.2d 1326, 1333 (1973):

"In order for a claimant to establish that he has acquired a private prescriptive easement by adverse use, he must submit 'reasonably clear and convincing' proof of open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner of the servient tenement, for the prescriptive period. 'Under a claim of right' signifies use without recognition of the rights of the owner of the servient estate. Thus, a prescriptive right cannot be acquired if the use of the land is with the permission of its owner. Absent estoppel, permission to use the land of another can be revoked at any time, no matter how long the permitted use has continued.

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"In the ordinary case, mere inaction and passive acquiescence is not a sufficient basis for proving that the use of the claimed right was with the permission of the owner of the servient tenement.

"The general rule is that proof of open, notorious, continuous, uninterrupted use of the claimed right for the prescriptive period, without evidence as to how the use began, raises the presumption that the use was adverse and under a claim of right. The burden is then on the owner of the servient tenement to show that the use was permissive, or by virtue of a license, contract, or agreement."

Accord State ex rel. Haman v. Fox, 100 Idaho 140, 594 P.2d 1093 (1979); Webster v. Magleby, 98 Idaho 326, 563 P.2d 50 (1977). See also Crow v. Carlson, 107 Idaho 461, 690 P.2d 916 (1984). Private easements by prescription are disfavored in the law. Elder v. Northwest Timber Co., 101 Idaho 356, 613 P.2d 367 (1980).

In the instant cause, the pertinent evidence at trial was exclusively the testimony of witnesses who disagreed as to whether Lorang's access over the Hunt property originated in permission and, if so, whether at a later time it became prescriptive in nature. The trial court held, and we agree, that the access began with permission of the predecessors of Hunt and that Lorang has not shown that the permissive right was ever changed to one based on a claim of adversity.

Ed Hasfurther and his father owned what is now the Hunt property for approximately 70 years. In 1972, Ed Hasfurther sold that property to Dave Wagar, who built a house upon the property and in turn sold it to the Hunts in 1977. Hasfurther testified that in 1951, Lorang's father (then owner of the Lorang farm) requested permission of Hasfurther to use the 3.7-acre tract for access to the Lorang farm until a bridge was built connecting Highway 95 to the Lorang farm. Hasfurther granted that permission, and Lorang's father used the access with Hasfurther's consent until 1957, when Lorang began farming his father's property under lease. Sometime between 1957 and 1960, the expected bridge was completed, but the Lorangs continued to use the 3.7-acre tract for access to the Lorang farm. Plaintiff Lorang purchased the Lorang farm in 1968.

Hasfurther could not see the 3.7-acre tract from his house and did not know or care if the Lorangs used it. The trial court found that from 1951 to 1972, the Hunts' predecessors in interest had not used the 3.7-acre tract of land for any beneficial purpose, but that it "could not be considered wild and open land for the purpose of creating a presumption that use by others than the owner was permissive." The trial court also expressly found that "plaintiff's use of the land for access between 1951 and 1972 in no way interfered with Mr. Hasfurther's ownership or use of the land."

As stated, Wagar owned the land in question from 1972 to 1977. In December of 1972, plaintiff-appellant Peter D. Lorang asked Wagar to grant a 50-foot right-of-way access across the property in question, but Wagar told Lorang that while Lorang might use the property for access, Wagar would not put any such permission in writing. Similarly,...