Northwestern and Pacific Hypotheekbank v. Hobson

• Decision Date: 04 May 1938
• Docket Number: 6475
• Citation: 59 Idaho 119,80 P.2d 793
• Parties: NORTHWESTERN AND PACIFIC HYPOTHEEKBANK (NORTHWESTERN AND PACIFIC MORTGAGE COMPANY) a Corporation, Respondent, v. GEORGE HOBSON, Appellant
• Court: Idaho Supreme Court

80 P.2d 793

59 Idaho 119

NORTHWESTERN AND PACIFIC HYPOTHEEKBANK (NORTHWESTERN AND PACIFIC MORTGAGE COMPANY) a Corporation, Respondent, v. GEORGE HOBSON, Appellant

No. 6475

Supreme Court of Idaho

May 4, 1938

EASEMENTS-PRESCRIPTION.

In action to establish easement for right of way by adverse possession, judgment for plaintiff was affirmed where two of five members of Supreme Court concurred in conclusion of justice who wrote opinion for affirmance and two members of the court dissented. (I. C. A., secs. 5-203, 5-205.)

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. James W. Porter, Judge.

Action for easement for right of way. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

James R. Bothwell and Harry Povey, for Appellant.

Five-year statute of limitations is applicable to acquisition of prescriptive right, and right cannot be acquired in shorter period. (Last Chance Ditch Co. v. Sawyer, 35 Idaho 61, 204 P. 654; Lavin v. Panhandle Lbr. Co., 51 Idaho 1, 1 P.2d 186; Deffenbaugh v. Washington W. P Co., 24 Idaho 514, 135 P. 247; Hall v. Taylor, 57 Idaho 662, 67 P.2d 901; I. C. A., secs. 5-203, 5-204 and 5-206; Beasley v. Engstrom, 31 Idaho 14, 168 P. 1145.)

Use necessary to acquire title by prescription must be open, uninterrupted, peaceable, notorious, adverse, under a claim of right, and continue for a period of five years with knowledge of owner. (19 C. J. 878; Last Chance Ditch Co. v. Sawyer, supra; Hester v. Sawyer, 41 N. M. 497, 71 P.2d 646.)

A. J. Myers, for Respondent.

Respondent's predecessor in interest commenced the use of said right of way under claim of right in the spring of the year 1928 and continued to use the same openly, notoriously, adversely and uninterruptedly until the spring of the year 1934 and respondent continued in like use until the spring of the year 1936, with appellant's knowledge and without his permission.

After the time elapsed respondent will be presumed to have acquired the right by prescription.

A parol agreement void under the statute of frauds will not defeat respondent's prescriptive right.

Inasmuch as the authorities overlap on the above points we cite all cases relied upon here, believing that these authorities as a whole cover all of these points. (Lechman v. Mills, 46 Wash. 624, 91 P. 11, 13 Ann. Cas. 923, 13 L. R. A., N. S., 990, and case note; McDonnell v. Huffine, 44 Mont. 411, 120 P. 792; Wendler v. Woodard, 93 Wash. 684, 161 P. 1043 (see p. 1046); Bowers v. Gilbert, 63 Utah 245, 224 P. 881; Conventon v. Seufert, 23 Ore. 548, 32 P. 508.)

BUDGE, J., AILSHIE, J. Holden, C. J., and Ailshie, J., concur in the conclusion, Holden, C. J., BUDGE, J., concurring. MORGAN and GIVENS, JJ., Dissenting.

OPINION

BUDGE, J.

Respondent sought by this action to establish a right of way for a road, across appellant's land, and to a bridge, partly on appellant's land, and to restrain and enjoin appellant from interfering with respondent's use thereof.

The court in effect found that respondent and its predecessor in interest were in open, notorious, continuous, adverse, and uninterrupted use of the said right of way from 1928 to 1936, a length of time exceeding the 5 year period prescribed by secs. 5-203 and 5-205, I. C. A.; that the right of way became an appurtenance to the land of respondent; that a prescriptive right in such right of way was established; and that appellant had used said bridge as a means of traveling from one portion of his land to another under a claim of right, jointly with respondent, for more than five years, and concluded the right of way, the road and the bridge, were appurtenances to respondent's land; that a prescriptive right had been established thereto; that appellant should be enjoined from interfering with respondent's use as a means of ingress and egress to and from its land; and that appellant should have the right to use said right of way and bridge jointly with respondent. Judgment was entered in accordance with said findings and conclusions, from which judgment this appeal was taken.

Appellant's four assignments of error may be divided into two main propositions: First, that the evidence is insufficient to support the findings, and the judgment based thereon, to the effect that respondent and his predecessor were in open, notorious, continuous, adverse and uninterrupted use of the right of way and bridge from 1928 to 1936, for the reasons (1) that the use from 1928 to 1931 was without the knowledge of appellant, (2) that after 1931 it was with the permission of appellant and not adverse, and (3) that subsequent to 1931 respondent recognized appellant's ownership by an attempt to purchase the right of way, and Second, that the court erred in failing to find that appellant is the owner of the bridge.

Respondent secured its title to the lands, to which the court found the right of way appurtenant, through foreclosure of a mortgage to respondent, placed on the land by Blaylock in 1920 or 1922, which mortgage continued in existence until foreclosed in 1934. Respondent purchased at the foreclosure sale and acquired possession of the land in 1934. Certificate of sale issued March 9, 1934, and sheriff's deed issued April 6, 1935.

The record discloses that in 1928 Will Hobson was in possession of appellant's land under a contract to purchase the same, the nature of which contract is not disclosed. Prior to the inception of the right claimed by respondent, Blaylock, respondent's predecessor, entered into an oral agreement with Will Hobson in substance that Blaylock would pay Will Hobson a price to be made "right" for a right of way across the appellant's land and if necessary Blaylock was to satisfy claims which might arise because of a community well lying in the center of the road, and Will Hobson would give a deed for the easement. Thereafter and in 1928 Blaylock built a bridge at a cost to him of $ 512 across the canal of the Twin Falls Canal Company, the bridge being substantially constructed with concrete abutments at the ends and concrete support in the middle. At the same time Blaylock fenced the right of way with material furnished from appellant's land. Blaylock built some grade and a portion of the road was graded by one Howard, and use of the road and bridge as a means of ingress and egress to respondent's land commenced in 1928. The use of the road and bridge continued until 1936 at which time appellant made protest, strung wires across the roadway, and posted notices thereon. User for the period 1928 to 1936 clearly appears, however the circumstances under which said use continued is questioned.

As heretofore stated, appellant's first proposition is that user for the period 1928 to 1931 was without the knowledge of appellant. The record discloses that appellant lived in the vicinity during all of such period and that the use of the road and bridge was continuous, open and notorious, and of such a character as to give notice for all to see. There is evidence likewise of actual knowledge on the part of appellant. Blaylock in effect testified that appellant "objected when he started." Appellant testified with reference to his own use of the road and bridge as follows:

"Q. Since the construction of this bridge (1928) you or your tenants have used that method of crossing the Low Line Canal to reach your property south of the canal?

"A. Since its been built I have."

In so far as the record discloses appellant's testimony purported to his own knowledge and during such testimony the witness stated that the fence, built in 1928, was built from material taken off his place, wire he had not used. Again it appears that appellant when questioned as to the work that was done on the road testified that Mr. Howard had graded it up in order to keep the water from running through his corral, and from Blaylock's testimony it appears that such grading was done in 1928. Lack of knowledge on the part of appellant of the building of the bridge, fencing and grading of the road, and use thereof by respondent's predecessor is inconsistent with the testimony above referred to. It further appears that appellant in effect recognized that someone had a right of way across his land, other than himself, inasmuch as he relies in part upon his exhibit "1," a purported bill of sale to himself of a right of way, executed by Blaylock and wife March 9, 1934, which instrument recites that Blaylock and wife:

"Grant, Bargain, and Sell and Convey unto said party of the second part (appellant), his executors, administrators and assigns a road right of way along the East line of the Geo Hobson ranch laying SE of Buhl this being all my right title and equity in the said right of way and the bridge." (Emphasis inserted.)

It appears there was evidence of actual knowledge on appellant's part of the claimed right as early as 1928, as well as circumstances strongly indicating constructive notice (Trask v. Success Min. Co., 28 Idaho 483, 155 P. 288; 1 Am. Jur., sec. 140, p. 874; Downie v. City of Renton, 162 Wash. 181, 298 P. 454; Grimmesey v. Kirtlan, 93 Cal.App. 658, 270 P. 243; Pacific Gas & Elec. Co. v. Crockett Land & Cattle Co., 70 Cal.App. 283, 233 P. 370; Silva v. Hawn, 10 Cal.App. 544, 102 P. 952), as well as evidence of an admission at a later date of a right of way across his lands.

It is next urged that after the spring of 1931 the use by respondent was with appellant's permission and not adverse. The record discloses that Will Hobson moved off the appellant's land in the spring of 1931 and that appellant then took actual possession. With reference to the period following the spring of 1931, the record is absolutely silent as to any permission or right to the use of the right...