McIlquham v. Anthony Wilkinson Live Stock Company

• Decision Date: 05 October 1909
• Docket Number: 587
• Citation: 18 Wyo. 53,104 P. 20
• Parties: McILQUHAM v. ANTHONY WILKINSON LIVE STOCK COMPANY
• Court: Wyoming Supreme Court

104 P. 20

18 Wyo. 53

McILQUHAM v. ANTHONY WILKINSON LIVE STOCK COMPANY

No. 587

Supreme Court of Wyoming

October 5, 1909

ERROR to the District Court, Laramie County, HON. RODERICK N MATSON, Judge.

John J McIlquham brought the suit against the Anthony Wilkinson Live Stock Company to secure certain ways of necessity over the defendant's lands. From a judgment in favor of defendant the plaintiff prosecuted error. The material facts are stated in the opinion.

Affirmed.

W. R. Stoll, for plaintiff in error.

Where one conveys a parcel of land to another and the land is surrounded wholly by other land belonging to the grantor or by strangers, the grantee is entitled to a way of necessity over the grantor's land without reference thereto in the deed itself. (23 Ency. Law, 13-15.) The principle cannot be different when the government is the grantor. (R. R. Co. v. Board &c., (Mass.) 38 N.E. 27.) In the case at bar the government was the original owner of the fee and was the grantor of the plaintiff, the government at the time retaining the fee in the surrounding public lands and still retains it. After granting to the plaintiff his lands, the government granted originally to the U. P. Ry. Company the lands of the defendant surrounding plaintiff's lands. The same conditions exist, therefore, that would have existed if, instead of the government being the owner in fee, such owner had been a private individual.

In the decided cases there are numerous instances where the way of necessity was one not to other land owned by the individual, but a way to a public road, to churches, school houses, mills, etc. The cases completely explode the idea that in order to have a way of necessity it is necessary for the one asking it to own land or other property to or from which the way is desired. One having his home on a particular piece of land has a right to travel upon a county or other public highway in the vicinity of that land. In common with other citizens he has a right to use the highway, and if his land is so situated that the road cannot be reached without crossing the land of others, he clearly has a right of way by necessity over such other land. All that is necessary is that he must, for the purpose of enjoying his property as he has a right to enjoy it, have free ingress and egress to and from the same. He has a right to travel the public domain; he has a right to go to the court house, perhaps many miles distant; and to mills, schools, churches, etc.; and for that purpose he has a way of necessity over land not belonging to him, which is situated between his land and the places to which he has a right to go. (Mosher v. Hibbs, 24 O. C. C. 375; Meredith v. Frank, (Ohio) 47 N.E. 656; Van de Venter v. Flaherty, (Wash.) 79 P. 794; Lumber Co. v. McKinley, (Minn.) 86 N.W. 414; Rogerson v. Shepherd, (W. Va.) 10 S.E. 632; Boyd v. Woolwine, (W. Va.) 21 S.E. 1020; Woolridge v. Coughlin, (W. Va.) 33 S.E. 233; Brown v. Barton, (Ky.) 82 S.W. 405; 23 Ency. Law, (2nd Ed.) 7; Snyder v. Worford, 11 Mo. 513.)

The statute with reference to laying out of private ways does not provide the remedy sought by the plaintiff. (Rev. Stat. 1899, Sec. 1933; Laws 1901, pages 9, 10.) However, the statute is only permissive and the individual is not obliged to resort thereto. (Rev. Stat. 1899, Sec. 1936.) A right of way by necessity is not affected by the fact that a private way may be laid out under the statute, the terms of which do not change the common law on the subject. (23 Ency. Law, (2nd Ed.) 15; Meredith v. Frank, supra; Holman v. Patterson, (Tex.) 78 S.W. 989.) The plaintiff asks not only for one way but for several, and, under the facts in the case, he would, we contend, be entitled to several rights of way. Although there may be no decided cases upon similar facts, the principles of the common law are so fundamental and flexible, and in their nature so adapted to different conditions, that an elementary principle having but limited application in the early days of the common law, by reason of the conditions then prevailing, has now a very extensive application by reason of the change in conditions.

Herbert V. Lacey, John W. Lacey and C. W. Burdick, for defendant in error.

The petition seems to be partly based upon the theory that plaintiff's cattle have somehow a right of way appurtenant to themselves to wander over and depasture the defendant's land, and to roam over them for the purpose of reaching, in such way as they choose, public lands in the vicinity, but the plaintiff has not claimed much in his brief upon that question. However, it is a firmly settled rule of law that no trespass is committed when animals lawfully running at large wander upon and depasture the uninclosed lands of a private owner. (Cosgriff v. Miller, 10 Wyo. 90.) No title to the lands themselves is thereby acquired. (Wilkinson Live Stock Company v. McIlquham, 14 Wyo. 209.) The last case seems to practically settle every question now involved. Mere use under a naked license, however long continued, cannot ripen into a prescriptive right. (Ry. Co. v. Conlon, (Kan.) 63 P. 433.) Hence no prescriptive right was gained by the plaintiff through the wandering of his cattle over the defendant's lands or the lands of the public. Again, rights of way, either of necessity or by prescription, cannot be appurtenant to cattle, or belong to an individual except as appurtenant to land.

The plaintiff's petition does not even remotely allege that he has no access to his lands. For all that appears in the petition he may have a full, broad and clear highway from his lands to a full, broad and clear highway to the north. It often happens that the lands of one are situated between two separate highways, sometimes facing upon one, and they are sometimes back from the main highway, but not opening upon it at the other side of the lands. In such a case if the owner has full access to the highway on one side, can it be contended that he has a way of necessity across the lands in the other direction to the other highway? The petition is not for the purpose of obtaining a way of necessity, nor to obtain access to the plaintiff's lands, but for the purpose of enforcing an imagined right to have the plaintiff's cattle roam at will over the lands of the defendant and adjacent public lands, on the theory that they had acquired the right to do so by previously roaming over those lands when they were uninclosed. It is not a case of the sale by the land owner of a particular tract having no access except over the lands of the vendor. There is an intimation in the brief of the plaintiff that he received his lands from the government before the latter parted with the title to the defendant's lands. It is not true in fact, nor is it averred in the petition. There is nothing to show that the owner of the land expressly granted any right of way in favor of the plaintiff or his land. Plaintiff's contention therefore must rest upon the doctrine of ways of necessity. If the land can be reached even by a distant or difficult road, the grantee is not entitled to a way across the land of the grantor. (Chattanooga v. Philpot, 112 Ga. 154; Turnbull v. Rivers, 3 McCord, 131; Gaines v. Lunsford, (Ga.) 47 S.E. 967; Vossen v. Dautel, (Mo.) 22 S.W. 734; Buss v. Dyer, 125 Mass. 287; Kingsley v. Goldsborough Co., 86 N.E. 279; Murray v. Ealy, 57 S.W. 412; Pharne v. Coal Creek &c. Co., (Tenn.) 18 S.W. 402.)

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

The plaintiff in error, who was plaintiff below, brought this action against the defendant in error, which was defendant below, praying that plaintiff might have certain ways of necessity over and across the lands of defendant. A general demurrer was filed by defendant to the amended petition of plaintiff, which demurrer was sustained by the District Court, and the plaintiff electing to stand on his amended petition, the court dismissed the action and rendered judgment in favor of defendant and against plaintiff for costs, and plaintiff brings the case here on error.

The plaintiff challenges the correctness of the ruling of the District Court in sustaining the demurrer, and that is the only question presented here. A condensed statement of the substance of the allegations of the petition, which is quite lengthy, will suffice to present the issues. It is alleged that the plaintiff is now and has been since about the year 1890, the owner in fee simple and in possession of certain lands situated in Laracie County, and has had during said time his home and homestead, outbuildings, stables, corrals and other property used in connection with his home and homestead located upon said lands, and during said period has been continually engaged in the business of raising livestock and marketing and selling the same. That he has been since 1890 the owner and in possession of livestock, consisting of about four or five hundred head, all of which during said entire period of time, until prevented by defendant, had been in the habit of ranging and pasturing upon his own lands and upon all other sections of land in that vicinity, the even numbered sections being at all times government sections and the odd numbered sections having theretofore and since about July, 1862, been granted by the Government of the United States to the Union Pacific Railway Company, and over all of which sections his said cattle have roamed at will, passing over the same without hindrance or molestation, and having free and unobstructed rights of way to and from the same; that there is a stream of water running through plaintiff's lands which has been used habitually as the principal supply of water for his cattle, and they have habitually passed over the lands of defendant...