Scott v. Weinheimer
| Citation | 374 P.2d 91,140 Mont. 554 |
| Decision Date | 31 August 1962 |
| Docket Number | No. 10375,10375 |
| Parties | Lewis H. SCOTT and Katherine A. Scott, Plaintiffs and Respondents, v. Ervin J. WEINHEIMER and Stella A. Weinheimer, Defendants and Appellants. |
| Court | Montana Supreme Court |
DeKalb, Dockery, Mondale & Johnson, Robert L. Johnson (argued orally), Lewistown, for appellant.
Donald E. Ronish (argued orally), J. E. McKenna (argued orally), Lewistown, for respondent.
This is an appeal by the defendants, Ervin J. Weinheimer and Stella A. Weinheimer, from a judgment of the district court for Fergus County, Montana, decreeing that the plaintiffs, Lewis H. Scott and Katherine A. Scott, are the owners of an easement for road purposes over lands belonging to the defendants and enjoining the defendants from interfering with its use.
The complaint alleges: That the plaintiffs are the owners in fee simple of a certain tract of land in Fergus County, Montana; that the defendants, since April 29, 1948, have been the owners of land adjacent thereto; that the defendants' land was and is subject to an easement of right of way; that the plaintiffs and their predecessors in interest have been, and the plaintiffs now are, the users and owners of said easement; that the plaintiffs and their predecessors in interest acquired said easement 'by reason of open, continuous and unmolested use and travel over it, for more that forty-five (45) years'; that there was not at the time the property was conveyed to the plaintiffs' predecessor in interest nor is there now any 'other feasible road' which can be used as a means of ingress to and egress from the plaintiffs' land; that the defendants, in 1949, 'willfully, unlawfully, wrongfully, maliciously, and wantonly' erected a gate across said easement; that prior to the filing of the plaintiffs' complaint, 'the defendants placed padlocks and a chain on said gate so that the same could not be opened, thereby completely blocking and obstructing' said easement; and that the defendants also placed a chain and padlock on a gate across said easement where the same enters into the land of the plaintiffs, and which gate is in the division fence separating the lands of the plaintiffs and the defendants.
The complaint further alleges: That, on May 22, 1959, at the instance of the plaintiffs, the sheriff of Fergus County, Montana, 'contacted said defendants and requested that they unlock said gates in order that the public and these Plaintiffs might traverse said highway and easement, and said Defendants have willfully, unlawfully, wrongfully, maliciously and wantonly neglected and refused the request of said sheriff to unlock said gates or permit passage over said highway and easement'; that the above acts of the defendants are in violation of the rights of the plaintiffs to the use of said easement; and that, by reason of the unlawful acts of the defendants in closing said easement by erecting barriers across the same and denying the plaintiffs the right to its use, the plaintiffs have been damaged in the sum of $5,000.
In addition to the $5,000 for general damages, the plaintiffs also prayed for exemplary damages in the sum of $5,000, and for a decree perpetually restraining and enjoining the defendants from in any manner closing the plaintiffs' easement or in any manner interfering with the use thereof.
The defendants demurred to the plaintiffs' complaint upon the ground and for the reason that it failed to state facts sufficient to constitute a cause of action. The demurrer was, by the district court, overruled and the defendants given time in which to further plead.
The defendants thereafter answered, admitting that the plaintiffs are the owners of a certain tract of land in Fergus County, Montana, and that they, the defendants, are the owners of land adjacent thereto. The defendants, however, denied all other allegations of the plaintiffs' complaint.
The evidence shows that the plaintiffs, Lewis H. Scott and Katherine A. Scott, own and reside upon a certain tract of land in Fergus County, Montana; that the defendants, Ervin J. Weinherimer and Stella A. Weinheimer, own and reside upon land adjacent thereto, the title to which they acquired in the year 1948; that for a period exceeding 45 years, the plaintiffs and their predecessors in interest have used a road which runs from their land, north across the respective properties of the defendants and one Jack Woodard, and intersects with the state secondary highway between Brooks and Denton, Montana; and that the entire road here described, with the exception of a 200 foot strip leading east across the land of the defendants to the land of the plaintiffs, is used by the defendants as a means of ingress to and egress from their own land and buildings.
The evidence further shows that the road here described, which is the object of this suit, originally ran directly from the Brooks-Denton highway to the plaintiffs' land and to the buildings situated thereon; that the course of such road was changed slightly in 1913 by the defendants' predecessor in interest, Charles M. Huffine; that the course thereof was again changed in 1948 by the defendants; that as a result of the later change, the road now runs directly to the defendants' buildings; and that, as a result of such change, a 200 foot strip was created running from the plaintiffs' land and buildings west across the defendants' land, and intersecting with that part of the north-south road leading to the defendants' buildings.
The evidence also shows that in 1949, the defendants erected a gate on the west end of the 200 foot strip; that in 1956 the defendants chained and padlocked such gate as well as a gate erected by Huffine in 1913 on the east end of the 200 foot strip, which gate is in the division fence separating the lands of the plaintiffs and the defendants; that as a result of the defendants' acts the plaintiffs were prevented from passing over the road in question; that, on instruction from the County Attorney, the plaintiffs thereafter removed such locks; that the defendants on May 22, 1959, again chained and padlocked the gates on each end of the 200 foot strip; that the plaintiffs were, as a result thereof, once again prevented from passing over the road in question; that the defendants also placed 'no trespassing' signs on posts near each gate; that, at the instance of the plaintiffs, the sheriff of Fergus County, contacted the defendants and requested that they unlock the gates here involved so as to permit the plaintiffs' passage over the road in question; and that up until the time of trial the defendants refused to unlock such gates.
At the trial, the plaintiff, Lewis H. Scott, testified that he did not travel over the road in question with anyone's permission; that his understanding was that he had a legal rigt to do so; that he and his predecessors in interest had been using such road for a period exceeding 45 years; that he had performed maintenance work on the road in question although the bulk thereof was performed by the defendants and their predecessor in interest; and that there was and is no other feasible means of ingress to and egress from his land and buildings other than over the road in question.
Charles M. Huffine, the defendants' predecessor in interest, testified that he owned and resided upon the defendants' land from 1913 to 1948; that he first traveled over the road in question in 1902; that such road was used by the plaintiffs and their predecessors in interest continuously since 1913 as a means of ingress to and egress from their lands; that such road was also...
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