Richins v. Struhs, 10402

• Court: Supreme Court of Utah
• Citation: 17 Utah 2d 356,412 P.2d 314
• Docket Number: No. 10402,10402
• Parties: d 356 Elmer J. RICHINS, Blanche E. Richins and Zella F. Harries, Plaintiffs and Appellants, v. Merie R. STRUHS and Jackie Struhs, his wife, Defendants and Respondents, Leslie C. GOLD and Floris C. Gold, his wife, William F. Salt and Della Jo Salt, his wife, and Clara M. Whipple, Third-Party Defendants.
• Decision Date: 15 March 1966

Page 314

412 P.2d 314 17 Utah 2d 356 Elmer J. RICHINS, Blanche E. Richins and Zella F. Harries,
Plaintiffs and Appellants,
v.
Merie R. STRUHS and Jackie Struhs, his wife, Defendants and
Respondents,
Leslie C. GOLD and Floris C. Gold, his wife, William F. Salt
and Della Jo Salt, his wife, and Clara M. Whipple,
Third-Party Defendants. No. 10402. Supreme Court of Utah. March 15, 1966.

[17 UTAH2D 357] Rawlings, Wallace, Roberts & Black, John L. Black, Salt Lake City, for appellants.

Joseph P. Bosone, Allen H. Tibbals, Salt Lake City, for respondents.

CROCKETT, Justice.

Plaintiffs, Elmer J. and Blanche Richins, and Zella F. Harries, seek to compel defendants, Merle R. and Jackie Struhs, to remove a fence which they erected in a driveway which had been used jointly for upwards of 40 years between their two properties in Emigration Canyon; and to

Page 315

have an easement by prescription for joint use of the driveway declared in plaintiffs. [17 UTAH2D 358] Trial was to the court. From judgment for defendants, plaintiffs appeal.

It should be noted that this attempt to assert and establish an interest in land, the legal title to which is vested in another, is a proceeding in equity. It is the duty and the prerogative of this court to review both the law and the facts, ¹ and to consider the weight and sufficiency of the evidence. ² However, in such cases we make allowance for the advantages the trial court has because of proximity to the parties, the witnesses and the trial. ³ But in situations such as the instant one, where there is substantially no dispute as to the essential facts, and rights are to be determined largely upon the application of principles of law and equity, the advantages referred to are not of any great importance.

Emigration Canyon is one of several canyons in the Wasatch Mountains just east of Salt Lake City in which city residents have from early times had summer homes. The parties to this action own adjoining homes fronting on Emigration Creek which separates them from the public road. Until the defendants built the fence referred to, the approach to both properties has been for more than 40 years by a common roadway and bridge over the creek. Their predecessors in interest, John M. Whipple of the defendants and Leo A. Jones of the plaintiffs, were brothers-in-law. In 1918 they and their families jointly constructed the bridge and roadway and so maintained and used it so long as they owned the properties (until the 1950s, since when there have been several transfers). The same condition persisted until recently. In 1960 the defendants Struhs purchased the Whipple property. They caused a survey to be made and thereafter erected a fence in the driveway on what they assert is the true boundary, leaving but a small portion of the driveway on the Jones' (plaintiffs' predecessors) side which blocks the latter's use of the driveway and prevents access to their property. The lawsuit resulted.

The trial court appears to have been of the opinion that because the Whipples and the Joneses were relatives and that they used the driveway harmoniously and without conflict, that the use was permissive and that therefore no prescriptive right to use the driveway arose. The difficulty with this view is that it does not give effect to fundamental principles applicable to prescriptive rights. The origin and purpose of their recognition arises out of the general policy of the law of assuring the peace and good order of society by leaving a long established status quo at rest rather than by [17 UTAH2D 359] disturbing it. In order to serve this purpose, when a claimant has shown that such a use has existed peaceably and without interference for the prescriptive period of 20 years, ⁴ the law presumes that the use is adverse to the owner ⁵; and that it had a legitimate origin. ⁶ The latter presumption is usually placed on the ground that there was a lawful grant of such right, but that it had been lost. It is appreciated that this lost grant theory is fictional....