Savage v. Nielsen
| Decision Date | 26 August 1948 |
| Docket Number | 7100 |
| Citation | 197 P.2d 117,114 Utah 22 |
| Court | Utah Supreme Court |
| Parties | SAVAGE v. NIELSEN et al |
Appeal from District Court, First District, Cache County Marriner M. Morrison, Judge.
Action by Gordon Savage against ElRoy Nielsen and others. From a judgment quieting an easement over plaintiff's land in named defendant, plaintiff appeals.
Judgment set aside, and case remanded with instructions.
Melvin C. Harris, of Logan, for appellant.
H A. Sjostrom, of Logan, for respondents.
This is an appeal from a judgment in the lower court in favor of the defendant wherein an easement over plaintiff's property was quieted in the defendant. The cause was tried to the court without a jury. The defendant Smith, filed a disclaimer of any interest in the matter.
The defendant's answer sets up four contentions: (1) acquisition of the easement by prescription; (2) that Albert Savage and his wife, when they conveyed to Emmett Savage conveyed or gave to Emmett Savage the right of way which is in dispute; (3) that there is a public road in use for more than sixty years past covering that part of the plaintiff's property as now used as a right of way by the defendant; and (4) by an amendment to the defendant's answer, a way of necessity.
Number (2) may be eliminated since it was not further advanced, and the facts establish that no such conveyance was ever made. Number (3) may also be disregarded since uncontroverted evidence was that the old road previously in existence had been abandoned in 1913, and also that it was situated further east than the alleged easement.
Since the facts together with the description of the properties in dispute become rather complicated, we deem it best at this point to plot the tracts of land on a map setting out the essential features so that it may be used together with the facts as hereafter set out to give greater clarity and understanding of the physical situation. The map is not made to scale, and is illustrative only:
[SEE ILLUSTRATION IN ORIGINAL]
A. Road across north end of field when Emmett Savage owned it.
B. North crossing used most by Emmett before canal was put in, using 15 rods of Gordon's land.
C. Hyrum Branch Canal.
D. Crossing where the bridge now is, using 40 rods of Gordon's land.
E. Alleged easement, 20 feet wide, by 40 rods long.
The facts are as follows:
Prior to 1922, Albert Savage was owner of a large tract of land in Hyrum, Cache County, Utah, which tract included all the land presently in controversy as described in the pleadings. At that time there existed a road running north and south through his property, which was used by one Joseph M. Smith and possibly others. This road however was abandoned in 1913 when Albert Savage conveyed to the said Smith a twenty foot strip to the west of the Smith land and the Savage land. This strip was thereafter used as a road by farmers whose land adjoined said strip. The exact location of the old road through Savage's land was not testified to, but the testimony, which was not controverted seems fairly to establish that it lay somewhere east of the presently alleged easement, and for all practical purposes may be disregarded in further consideration of this cause.
In 1922, Albert Savage conveyed a part of the tract owned by him to his son, Emmett Savage. The part conveyed to Emmett Savage consisted of the west part of the tract owned by Albert Savage, so that it bordered on the twenty foot strip which had been conveyed by Albert Savage to Smith. The deed to Emmett Savage described this strip and excepted it from the conveyance. Between the twenty foot strip and most of the land conveyed to Emmett Savage, and running parallel to the 20 foot strip, there exists the main Wellsville Irrigation Canal which testimony established as being about eighteen feet wide at this point. The terrain is such that the canal is lower than the Emmett Savage property, being near the base of, and cut into, a hill along the west side of the Emmett Savage property. The testimony indicated that the canal as it exists is capable of being forded, but that this could not be done with farm loads of produce, hay and grain.
Bounding the part of the tract retained by Albert Savage to the north is a street which comes to a dead end at about the boundary of the then Albert Savage property. This street is denominated Second North Street. Emmett Savage was in the habit of crossing a part of the land retained by his father immediately east of his own land to reach Second North Street, rather than fording or bridging the Wellsville Canal to the west of his property. The evidence clearly indicates that he made a considerable use of it in hauling out crops. The exact extent of this use is in dispute.
In 1930, Albert Savage conveyed the balance of the tract to another son, Gordon Savage, the plaintiff. There is nothing to indicate a right of way either in the Emmett Savage deed, or in the Gordon Savage deed. Thereafter, however, Emmett Savage continued to use the same part of the Gordon Savage land as a means of ingress and egress as he had used when Albert Savage owned the property. A description of the land used by him reduced to its simplest terms is that he would cross onto the Gordon Savage land to the east, then turn north along the boundary line between the two properties which at this time was marked by a private irrigation ditch, then out the gate or opening at the north end of Gordon's field, and onto Second North Street.
The Hyrum Irrigation Canal, a branch canal was put through in 1935. It was put in along the line of the old private ditch previously referred to which was along the east line of the then Emmett Savage property; running north and south. Thereafter, in 1935, Emmett Savage applied to the Bureau of Reclamation and was given funds to construct a bridge across his branch canal, which he proceeded to do at the point where it now is, and the point at which it crosses the Hyrum Irrigation Canal is the southermost point claimed by the present defendant as a part of his easement in the Gordon Savage land. Emmett Savage testified that he had a road across the top end of his land when he owned it, and used only a part of the Albert Savage (now Gordon Savage) land, amounting to about 15 rods north and south generally, but that he infrequently used more when he crossed at the point further south where the bridge now is. When the Bureau of Reclamation would allow him only enough money to put in one bridge he elected to put it at the southermost point where he crossed the canal onto the now Gordon Savage land. At this point it is necessary to use approximately 40 rods of the Gordon Savage land as a means of ingress and egress to Second North Street. It is this latter way which the defendant seeks to have established as a right of way in his favor.
Emmett Savage sold and conveyed his land to the defendant ElRoy Nielsen in 1936. Nielsen thereafter, until the plaintiff instituted this action, continued to use the alleged right of way, and has graveled it and made it a passable roadway.
The bulk of the proofs by far, in the trial of this cause, went to the question of an implied grant or way of necessity. A resume of the testimony relating to a way of necessity is as follows:
After preliminary testimony establishing a conveyance from Albert Savage to Emmett Savage of the land now owned by Nielsen, the defendant Nielsen testified that the Wellsville Canal ran inside his property line on the west side and was approximately eighteen feet wide, and cut in close to the base of a steep hill, and after crossing it there is a steep drop; that there was a road west of the canal and he did not know whether it was a public or private road (later he testified that it was private); that if he were forced to go across the canal to the west, it would amount to a seven block detour in reaching his home; that it would be impossible to cross the canal without a bridge with a four ton load of beets and was pretty hard to cross with an ordinary load; that each spring the canal is scraped out making the banks more abrupt; that it would cost him $ 500 to bridge the canal; that his neighbor, Liljenquist, had bridged the canal for less, but that conditions on his property were different; that he was sure the company would insist on cement abutments and fill because the water washes over at this place; that he had maintained a ford; that it could be made passable; that as road supervisor he had graveled the west road and knew that people generally use it to haul crops and go on their land.
James G. Christiansen testifying for the defendant stated that he crossed the canal with a wagon and that it was a terrible crossing because as soon as you get across you make a large dip and if you don't have a good outfit you couldn't think of crossing it; that it is not impossible to have a crossing over the canal; that he as a farmer did not in his farm work use the west crossing because it wasn't feasible; that to build a crossing and carry the road up the hill until it gets to the east of the hill would be a tremendous job.
LeRoy Smith testified that his father held the deeds to the west road but that others helped build it, including Albert Savage, who deeded the road to Smith; and that the other adjacent property owners used the road without objection from his father; that no one was prevented from using the road.
Gordon Savage testified that under presently existing circumstances it was much easier to use the alleged easement than cross the Wellsville canal.
Elmer Eliason testified as to the parties who helped build the west road; and that...
To continue reading
Request your trial
-
Valcarce v. Fitzgerald
...his use of another's land was open, continuous, and adverse under a claim of right for a period of twenty years. See Savage v. Nielsen, 114 Utah 22, 197 P.2d 117, 122 (1948). However, once a claimant has shown an open and continuous use of the land under claim of right for the twenty-year p......
-
Jensen v. Brown
..."(a) right of way of necessity ... cannot ripen into a prescriptive easement while the necessity continues," Savage v. Nielsen, 114 Utah 22, 32-33, 197 P.2d 117, 122 (1948), quoting 28 C.J.S. Easements § 18, and that competent testimony was given at trial supporting defendants' theory that ......
-
Herrera v. Roman Catholic Church
...unity of title must be shown to have concurrently existed. See Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622 (1950); Savage v. Nielsen, 114 Utah 22, 197 P.2d 117 (1948). We disagree, however, that the trial court's findings are insufficient to support its determination that defendants estab......
-
Buckley v. Cox, 7730
...evidence to the contrary, such use by the latter is permissive, and not under a claim of right. Jensen v. Gerrard, supra; Savage v. Nielsen, 114 Utah 22, 197 P.2d 117; Cache Valley Banking Co. v. Cache County Poultry Growers Ass'n, Utah, 209 P.2d 251; Sdrales v. Rondos, Utah, 209 P.2d 562. ......