Richins v. Struhs
| Decision Date | 15 March 1966 |
| 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. |
| Court | Utah Supreme Court |
Rawlings, Wallace, Roberts & Black, John L. Black, Salt Lake City, for appellants.
Joseph P. Bosone, Allen H. Tibbals, Salt Lake City, for respondents.
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 have an easement by prescription for joint use of the driveway declared in plaintiffs. 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 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. But the theory upon which the presumption rests is not important. Whatever theory it may be based upon, what is significant is that it has a well justified and salutary purpose which is in conformity with the policy just discussed; and that it is so well established in our law that its validity is no longer open to question. Consequently it should be given effect to prevent the very thing which defendants have attempted here: the upsetting of a situation which has existed amicably since 'the memory of man runneth not to the contrary.' 7
We think it pertinent to here acknowledge that in this, as in most situations of controversy, there is another side of the coin to be kept in mind; and that we do not lose sight of certain propositions advocated by the plaintiff in regard to a permissive use where that in fact exists. The presumption above mentioned that a use is adverse which arises from its continuance for a long period of time is not absolute. It would not preclude the owner of the servient estate (defendants herein) from proving that the use was by permission. If he sustains that burden and overcomes the presumption by proof that the use was initially permissive, then the burden of going forward with evidence and of ultimate persuasion shifts back to the claimant to show that the use became adverse and continued for the prescriptive period. 8 This is so because a claimant should not be permitted to in effect 'sneak up' on the owner by using his property under permission and then after a lapse of time claim he was using it as a matter of right.
It is true indeed that the use must have been such that it is plainly apparent that the claimant is asserting a right so the servient owner either knows or should know that his property is being so used. If the use is in fact adverse and appears to be so, that is all that is required. Even though it is sometimes referred to as a hostile use, it is not necessary that there be any open hostility manifest in the use of force or any overt physical or verbal opposition if the condition just stated is met. It is not the policy of the law to encourage violence by rewarding it; and it generally does not make the protection or the acquisition of rights dependent upon it. The fact that the parties (predecessors) were friendly, or even cordial with each other, as they appear to have been, does not prevent a prescriptive right from coming into being. 9
The circumstances concerning the...
To continue reading
Request your trial
-
Judd v. Bowen
...use of land by a person other than the landowner was evidence of a lost grant in favor of that user. See Richins v. Struhs , 17 Utah 2d 356, 412 P.2d 314, 315–316 (1966) ; Big Cottonwood Tanner Ditch Co. v. Moyle , 109 Utah 213, 174 P.2d 148, 151 (1946). Legal recognition of a prescriptive ......
-
SRB Inv. Co. v. Spencer
...at 948 (awarding the plaintiffs a prescriptive easement to cross over "a rough road across defendant's land"); Richins v. Struhs , 17 Utah 2d 356, 412 P.2d 314 (Utah 1966) (concluding that claimants had established a prescriptive easement to use a common driveway and bridge approaching the ......
-
Valcarce v. Fitzgerald
...owner of the servient estate then has the burden of establishing that the use was initially permissive. See id.; Richins v. Struhs, 17 Utah 2d 356, 412 P.2d 314, 316 (1966). In the present case, the Fitzgerald parties proved the elements necessary to give rise to the presumption of adversen......
-
Lunt v. Lance
...to weigh conflicting evidence and evaluate the credibility of witness testimony. See Utah R. Civ. P. 52(a); Richins v. Struhs, 17 Utah 2d 356, 412 P.2d 314, 315 (1966) (noting that, in reviewing a trial court's conclusion that an easement exists, appellate courts "make allowance for the adv......