Melendez v. Hintz

• Decision Date: 31 July 1986
• Docket Number: No. 15826,15826
• Citation: 111 Idaho 401,724 P.2d 137
• Parties: Michael G. MELENDEZ and Kathryn M. Melendez, Plaintiffs-Respondents, v. James A. HINTZ, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 137

724 P.2d 137

111 Idaho 401

Michael G. MELENDEZ and Kathryn M. Melendez, Plaintiffs-Respondents, v. James A. HINTZ, Defendant-Appellant.

No. 15826.

Court of Appeals of Idaho.

July 31, 1986.

William H. McAdam, Jr., Sandpoint, for defendant-appellant.

John Ford Elsaesser, Jr., Sandpoint, for plaintiffs-respondents.

SWANSTROM, Justice.

Michael and Kathryn Melendez brought this action against their neighbor James Hintz after Hintz blocked a driveway on his property which the Melendezes or their predecessors had used for twenty years. The Melendezes claimed they had acquired a prescriptive easement by adverse use of the driveway. The district court agreed. Hintz has appealed. Upon a record of undisputed facts we are asked to decide whether, as a matter of law, the Melendezes' use of the driveway was adverse to Hintz or permissive. Holding that the use was adverse, we affirm.

The properties involved are shown in the following illustrative sketch. The easement granted by the district court is the "Y" shaped shaded area.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Hintz did not acquire his property until 1981. What we refer to as Hintz's home and driveway were constructed by a predecessor on Lot 16 prior to August 1962. His driveway leaves a county road on the east end of his lot, angles to the north boundary and follows the north side of the lot to his home at the west end of his lot.

The Melendezes' home was constructed by their predecessors in 1963 on Lot 17 lying north of Lot 16. A platted county road running north along the east ends of several lots deadends against the south line of Lot 17. While the facts are not clear on this point, testimony indicates that the road was not well-established on its northern end. For a time during construction of the Melendez home there was a direct access to Lot 17 from the platted right-of-way. Then a county official who owned property on the east side of the roadway claimed ownership of part of the right-of-way and erected a barrier, preventing further use of that route. Melendezes' predecessors then began using a part of the Hintz driveway for access to Lot 17. They added a new section of driveway, branching off from the Hintz driveway, yet still on the Hintz property, to reach Lot 17. They constructed a loop drive on their lot which connected with the Hintz driveway at two different places. Thus, the Melendezes' predecessors began using a "Y" shaped section of driveway on Lot 16. The lower stem and left branch of the "Y" they used jointly with Hintz's predecessor. The right branch has not been used by Hintz or his predecessor. The owners of Lot 17 used the driveway continuously since 1963 as did the Melendezes after they purchased Lot 17 in 1982. The use was not disputed until 1983 when Hintz decided that he no longer wanted the Melendezes to use the driveway across his property.

A claimant, in order to acquire a prescriptive easement in Idaho, must present reasonably clear and convincing evidence of open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner of the servient estate for the prescriptive period. State ex rel. Haman v. Fox, 100 Idaho 140, 594 P.2d 1093 (1979); West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973); Kaupp v. City of Hailey, 110 Idaho 337, 715 P.2d 1007 (Ct.App.1986). The prescriptive period in Idaho is five years. I.C. § 5-203. A prescriptive right cannot be obtained if use of the servient estate is by permission of the owner. Haman, 100 Idaho at 143, 594 P.2d at 1096.

Here, there was no evidence of how the use began, other than what we have summarized. At the time of trial, the persons who built the Melendez home were deceased. Two witnesses who testified by depositions had no personal knowledge about whether the initial use of the Hintz driveway by the owners of Lot 17 was permissive or not. The general rule in Idaho is:

[P]roof 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. [Footnotes omitted.]

West v. Smith, 95 Idaho at 557, 511 P.2d at 1333. This rule has been repeatedly upheld. Gibbens v. Weisshaupt, 98 Idaho 633, 570 P.2d 870 (1977); Kaupp v. City of Hailey, supra. One exception to this rule--not applicable here--occurs when the servient land is wild, unenclosed, or unimproved. Then the presumption is that the use was permissive. West, 95 Idaho at 557 n. 32, 511 P.2d at 1333 n. 32. See e.g. Christle v. Scott, 110 Idaho 829, 718 P.2d 1267 (Ct.App.1986). Our Supreme Court has also recognized that the general rule has another exception which is applicable in the absence of evidence as to whether the use began adversely or with permission of the servient owner. In Simmons v. Perkins, 63 Idaho 136, 144, 118 P.2d 740, 744 (1941) the Court said:

The rule would seem to be that where the owner of real property constructs a way over it for his own use and convenience, the mere use thereof by others which in no way interferes with his use will be presumed to be by way of license or permission. Harkness v. Woodmansee, 7 Utah 227, 26 Pac. 291; Howard v. Wright, 38 Nev. 25, 143 Pac. 1184; [additional citations omitted].

Other states which currently recognize this rule include Colorado, Nevada, Oregon, and Utah. See, e.g., Allen v. First National Bank of Arvada, 120 Colo. 275, 208 P.2d 935 (1949); Westland Nursing Home, Inc. v. Benson, 33 Colo.App. 245, 517 P.2d 862 (1974); Jackson v. Hicks, 95 Nev. 826, 604 P.2d 105 (1979); Woods v. Hart, 254 Or. 434, 458 P.2d 945 (1969); and Zollinger v. Frank, 110 Utah 514, 175 P.2d 714 (1946). See also Annot. 170 A.L.R. 776, at 825. In Jackson v. Hicks, 604 P.2d at 106, the Nevada Supreme Court, quoting from Turrillas v. Quilici, 72 Nev. 289, 303 P.2d 1002 (1956), stated the rule as follows:

Where a roadway is established or maintained by a landowner for his own use, the fact that his neighbor also makes use of it, under circumstances which in no way interfere with use by the landowner himself, does not create a presumption of adverseness. The presumption is that the neighbor's use is not adverse but is permissive and the result of neighborly accommodation on the part of the landowner.

Hintz argues that the driveway was established by the former owner of Lot 16; that the driveway was jointly used by the owners of Lots 16 and 17; and therefore it should be presumed that use of the driveway by Melendezes' predecessors was with permission of the owner of Lot 16. The Melendezes argue that the Simmons rule or exception is no longer favored in Idaho. They point particularly to our Supreme Court's opinion in West v. Smith, supra, where Simmons was mentioned. 95 Idaho at 557 n. 28, 511 P.2d 518 n. 28. However, West v. Smith was not a "joint use" case, and the Supreme Court did not there in any way address the joint use exception stated in Simmons. The Supreme Court disavowed only the language in Simmons which suggested that proving an owner of the servient property "acquiesced" in the use of his property by another was equivalent to proof that the owner had given his consent or permission. The Court in West said that proving "mere inaction and passive acquiescence" is not sufficient to establish that the use "was with the permission of the owner of the servient estate." Id. Accord, Feldman v. Knapp, 196 Or. 453, 250 P.2d 92 (1952).

Before West was decided the Idaho Supreme Court had one occasion to again recognize and apply the Simmons rule. See Cusic v. Givens, 70 Idaho 229, 231, 215 P.2d 297, 298 (1950). No reported Idaho cases since Simmons give any indication that the Idaho Supreme Court has disavowed, or would disavow, the "joint use" rule recognized in Simmons. Although Simmons has often been cited for other principles we can find no other case where its joint use rule has been applicable. ¹

To establish a prescriptive right in a roadway it is essential that the use of the way must constitute some actual invasion or infringement of the right of the owner. Cox v. Cox, 84 Idaho 513, 521, 373 P.2d 929, 934 (1962); Simmons v. Perkins, supra. If the use is with permission of the owner of the property no invasion or infringement of the owner's rights occurs. Adverse use is some actual invasion or infringement...