Lund v. Wilcox

• Decision Date: 23 August 1908
• Docket Number: 1862
• Citation: 97 P. 33,34 Utah 205
• Court: Utah Supreme Court
• Parties: LUND v. WILCOX

97 P. 33

34 Utah 205

LUND v. WILCOX

No. 1862

Supreme Court of Utah

August 23, 1908

APPEAL from District Court, Second District; J. A. Howell, Judge.

Action by Elizabeth Lund against J. F. Wilcox. Judgment for defendant, and plaintiff appeals.

REVERSED, WITH DIRECTIONS.

A. J Weber for appellant.

Willey Willey & Dole for respondent.

FRICK J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

The appellant instituted this action in April, 1905, to enjoin the respondent from tearing down her fences and from trespassing on and passing over a certain portion of her land. The respondent claims a private right of way over her land, which he asserts was acquired by prescription, and that the fence in question obstructed this right of way, and hence that he had a right to remove the same. Upon a hearing the court found for the respondent, and entered judgment in his favor.

The undisputed facts, briefly stated, are as follows: The appellant is the owner of the East one-half of the Southeast quarter of section 30, township 3, range 1 East of Salt Lake meridian, in Davis county. The husband of appellant acquired title to this land from the United States on December 26, 1891, and thereafter conveyed the same by warranty deed to appellant on the 3d day of December, 1904. She has been the owner and in possession ever since, and she and her husband were in possession since 1889, or a few years preceding that time. The appellant is the owner of the South one-half of section 29, township and range aforesaid, which joins appellant's land on the east. Respondent has been in possession of his land since 1879 or 1880. He acquired title thereto in 1901 from the Union Pacific Railway Company, which obtained its title from the United States in 1897. The land referred to above is arid, and lies on the east margin of Salt Lake valley, along the foothills. The portion of land on which respondent claims the right of way always has been, and at the time of the trial was, wild, uncultivated, and unfenced, covered over with sagebrush and other indigenous weeds or grasses. Ever since the year 1879 or 1880 the respondent, in improving his land, traveled over some portion of the wild lands which were between his and the public highway, which is some distance to the west of his land, and west of appellant's land. The travel in places over the right of way was not confined to a particular place; but in other places, where the roadway was cut into the brow of a hill, or where it required preparation for travel, the testimony tends to show that the roadway has practically remained in the same place during all of the years that respondent was using the right of way. It further appears that only a portion or portions of the roadway traveled by respondent pass onto and over appellant's land.

It is not made very clear by the evidence just what part of the right of way is upon appellant's land, and this is ascertained only by reference to the description of it as given in the decree of the court; but, as this decree simply gives the starting point and the courses and distances in degrees and chains, we are unable to state just what portion of appellant's land is crossed by the right of way. This, however, is not material for the purpose of the decision, as will hereafter appear. In 1900 there was what the witnesses term a freshet, which, to some extent not shown by the evidence, washed away or interfered with the right of way used by respondent at a point, as we read the evidence, where the right of way was not on appellant's land. To avoid this washout the course of the right of way was then changed onto appellant's land, or, if the old right of way was upon her land, then the change was made from one part of her land to another part, so that an entirely new right of way was established at that time for some distance over her land. It is this portion of the right of way that appellant especially objects to. At the trial her counsel claimed, and now insist, that no part of the right of way over appellant's land has been established by prescription under the laws of this state. The court found, and so decreed, that the respondent had acquired a right of way over the land of appellant, including that portion which was not established until 1900. The real question in the case, therefore, is whether the court erred in awarding respondent the right of way described in the decree.

Counsel for appellant contends that under the law in force in this state the respondent could not acquire any right of way by prescription in, to, or over appellant's land while the title remained in the United States. It is conceded that the title to appellant's land remained in the United States until December, 1891. Appellant insists, therefore, that a prescriptive right over her land could be acquired only after an open, continuous, and adverse use for a period of twenty years after she became the owner thereof, and that such a use has not been established by the evidence. This court has repeatedly held that a prescriptive right in, to, or over real estate can be acquired only after an open, continuous and adverse user for a period of twenty years. (Harkness v. Woodmansee, 7 Utah 227, 26 P. 291; Funk v. Anderson, 22 Utah 238, 61 P. 1006.) The trial court, however, found that the right of way by respondent, with the exception of that portion where a change was made in 1900, was used by respondent for a period of over twenty-five years. It is apparent, however, that up to December, 1891, appellant's land was owned by the United States, and hence respondent passed over appellant's land for a period of time less than fifteen years when this action was commenced, and over some portion of it for a period of about five years only. Under these facts counsel for appellant contends that no prescriptive right of way was or could be acquired by respondent over appellant's land.

This contention seems to be sustained by the authorities. In Smith v. Smith, 34 Kan. 293, 8 P. 385, Mr. Chief Justice Horton, speaking for the court, in referring to the question now under consideration, used the following language:

"We do not think that a person who is occupying government land, intending to obtain the same under pre-emption or homestead laws, can dedicate it, or any portion thereof, for a public road, until he has done all that he is required to do to obtain the title to the land under such laws; nor do we think that a public road can be established by prescription or limitation while the land over which the road runs belongs to the United States; nor can any portion of the time while...