Simmons v. Perkins

• Decision Date: 15 October 1941
• Docket Number: 6875
• Citation: 118 P.2d 740,63 Idaho 136
• Parties: A. H. SIMMONS and FRANCES M. SIMMONS, Appellants and Cross-respondents, v. LLOYD K. PERKINS and ALICE WINIFRED PERKINS, Respondents and Cross-appellants
• Court: Idaho Supreme Court

118 P.2d 740

63 Idaho 136

A. H. SIMMONS and FRANCES M. SIMMONS, Appellants and Cross-respondents, v. LLOYD K. PERKINS and ALICE WINIFRED PERKINS, Respondents and Cross-appellants

No. 6875

Supreme Court of Idaho

October 15, 1941

Rehearing denied November 24, 1941.

EASEMENTS-DEDICATION-ADVERSE POSSESSION.

1. In an action to quiet title to an easement for driveway in middle of block from center of alley to street, evidence established that there was no public dedication by property owner to city of such right of way.

2. Courts will not lightly declare a dedication to public use but an intention to dedicate upon the part of the owner must be plainly manifest.

3. Where the owner of real property constructs a way over it for his own use and convenience, the mere use thereof by others which in no way interferes with his use will be presumed to be by way of license or permission.

4. The use of a driveway in common with the owner and the general public, in the absence of some decisive act on the user's part indicating a separate and exclusive use on his part negatives any presumption of individual right therein in his favor.

5. Individuals using land as a road in common with the public cannot acquire a prescriptive right of way against the owner.

6. A use cannot be considered adverse or ripen into a right by prescription unless it constitutes some actual invasion or infringement of the rights of the owner.

7. To acquire an easement by adverse possession over the real property of another, the use must be hostile and cannot be by acquiescence or consent.

8. One asserting adverse possession as against the owner of real estate must prove each and every element of adverse possession by clear and satisfactory evidence.

9. In action to quiet title to an easement for right of way in middle of block from alley to street, evidence clearly showing that use of driveway by original owners was for their private use as a means of ingress and egress in carrying on their business and that the use by others was but a permissive use sustained finding against prescriptive right of way.

Rehearing denied November 24, 1941.

APPEAL from the District Court of the Third Judicial District, in and for Ada County. Hon. Chas. F. Koelsch, Judge.

Action to quiet title to an easement. Judgment for defendants. Affirmed.

Judgment affirmed, with costs to respondents.

J. M Lampert, for Appellant and Cross-respondents.

The alley or highway in question here became a highway under our statute by prescription, and a highway by prescription exists by virtue of user and not on the theory of a grant or dedication. (Gross v. McNutt, 4 Idaho 286 at 300; Ross v. Swearingen, 39 Idaho 35; Ore. Shortline R. C. v. Caldwell, 39 Idaho 71.)

The strip of land in question here was used by the public for much more than the statutory period, and was kept in repair at public expense, thus establishing a highway by prescription. (Meservey v. Guilliford, 14 Idaho 133.)

The strip of land involved in this proceeding was fenced off by the land owner from his other property; the public traveling the same for more than five years and the public thus has acquired a prescriptive right thereto, and the owner may not obstruct said road thereafter. (State v. Burg, 28 Idaho 724; Woll v. Costella, 59 Idaho 569 at 576.)

Delana & Delana, for Respondents and Cross-appellants.

Proof of dedication must be strict, cogent and convincing, and the acts proved must not be consistent with any construction other than dedication. (18 C. J. 96, Sec. 107; 18 C. J. 99, Sec. 111; Columbia & P. S. R. Co. v. City of Seattle (Wash.) 74 P. 671; Hailey v. Riley, 14 Idaho 481, 95 P. 686; Hartley v. Vermillion (Calif.), 70 P. 273; City & County of San Francisco v. Grote, 52 P. 128; 65 Am. St. Rep. 155; 41 L. R. A., 335.)

Where the owner of real property constructs a way over it for his own use and convenience, the mere use thereof by others which in no way interferes with his use will be presumed to be by license or permission. (18 Corp. Jur. 105, Sec. 120; Bradford v. Fultz (Ia.), 149 N.W. 925; Burk v. Diers (Neb.), 169 N.W. 263; Harkness v. Woodmansee (Ut.), 26 P. 291; Howard v. Wright (Nev.), 143 P. 1184.)

BUDGE, C.J. Givens, Morgan, Holden, and Ailshie, JJ., concur.

OPINION

BUDGE, C.J.

This action involves an alleged easement through a portion of Block 7 of Arnold's Addition to Boise City which block is bound by Pueblo Street on the North, O'Farrell Street on the South, 11th Street on the West, 10 Street on the East. An alley runs in a Northerly and Southerly direction from Pueblo Street to O'Farrell Street, through the center of Block 7. The Northeast quarter of Block 7 is divided into three lots facing 10th Street. The southernmost of these three lots is the one on which appellants and cross-respondents (hereinafter referred to as 'appellants') reside. For convenience it will be called Lot 3. The easement which appellants seek to establish, runs along the South side of Lot 3, in an Easterly and Westerly direction, from the center of the alley before mentioned to 10th Street.

About 1893, George Bayhouse owned Block 7, and sold the Northeast quarter of said Block to one Twogood who, in the course of the next five or six years, built three houses thereon, one of which is on Lot 3, and now owned by appellants. At this time, 1893, there was no alley through the Block. On February 15, 1906, George Bayhouse executed two instruments to Boise City. One, a deed to an alley, 13 feet 7 inches in width, running through the center of the Block from Pueblo Street to O'Farrell Street. The other, an easement for the laying of a sewer line, running through the center of the Block from 11th Street to 10th Street. This latter instrument contained the following provision, "with the express understanding that the alley in said Block shall run in a Northerly and Southerly direction * * * * That I shall not be required to move any house, or houses, or buildings situate on said block, by reason of said privilege thus given to the City until fully ready to do so of my own free will." The house occupied by the Bayhouses was located directly across the alley granted to the City. This house was not removed until 1939 when the entire alley was opened up from Pueblo Street to O'Farrell Street. Prior to this time, however, a part of the alley so granted was opened up from Pueblo Street and connected with the alleged alley to 10th Street.

Appellants became the owners of Lot 3 in 1919 and used the alley here in controversy, as did Bayhouses and others. In April, 1939, respondents and cross-appellants (hereinafter referred to as 'respondents') became the owners of the land over which the alleged easement runs, and in September, 1939, they closed up this driveway or alleged easement.

For a better understanding of the location of the alley from Pueblo to O'Farrell, the alleged alley or easement from the center of the Block to 10th Street, the Bayhouse residence, and appellants' residence we will here insert a plat of Block 7.

[SEE PLAT OF BLOCK 7 IN ORIGINAL]

The question therefore presented, as will appear from the above brief statement of facts, may be stated as follows. Is the strip of land, 12 feet 4 inches wide running from 10th Street westward to the center of Block 7, a public alley either by prescriptive right, or implied dedication, or has it been used by others than the owners merely under a permissive right. There is no contention that there was an express grant.

The trial court found that appellants "do not have any interest or easement in, to or across any part of the real estate herein found to be the property" of respondents, and concluded that respondents "are owners in fee simple free from any lien, claim of interest or easement therein" of appellants in and to the real estate over which the alleged alley runs.

Judgment was entered in favor of respondents, from which this appeal is prosecuted. The evidence as to certain material points is conflicting.

From the record it appears that on June 2, 1906, Boise City filed of record in the office of the Recorder of Ada County, Idaho, Book 3 of Plats, page 100, an amended location of street centers in the Arnold Addition, which plat was certified to by the then city engineer and the then city clerk, showing an alley running Northerly and Southerly through the Block 7, corresponding with the deeded alley.

It further appears that the deed to appellants as grantees described the real estate purchased by them from Mary Glenn, by metes and bounds as follows:

"All that portion of Block Seven (7) of Dwight Arnold's Addition in Boise City, as follows: Commencing at a point 74 feet South of the Northeast Corner of said Block Seven (7), and running thence South 50 feet along the Westerly line of Tenth Street, and running thence West at right angles to Tenth Street 115 feet to the alley, thence North 50 feet; thence East 115 feet to Westerly line of Tenth Street and place of beginning."

Appellants also filed a Declaration of Homestead containing identically the same description. Neither instrument makes any reference to or exception of an alley or easement across respondents' land. Respondent Mr. Perkins testified that he searched the City records and consulted the City Engineer before purchasing the property through which it is sought to establish an easement and that there was no record or plat of any driveway thereon.

Appellant Mrs. Simmons testified to seeing Frank Bayhouse during 1937 or 1938, and of endeavoring to purchase from him a portion of the ground constituting the driveway from 10th Street to the center of the Block; that Mr. Bayhouse advised her that there was a loan on the property and that he would have to consult the...