Stock v. Roebling
| Decision Date | 16 October 1969 |
| Docket Number | No. 3781,3781 |
| Parties | C. D. STOCK, Appellant (Defendant below), v. Joseph M. ROEBLING, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Lathrop, Lathrop & Uchner, David D. Uchner, and Carl L. Lathrop, Cheyenne, for appellant.
Harold M. Johnson, Rawlins, for appellee.
Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.
Plaintiff, Joseph M. Roebling, on July 5, 1967, instituted suit against C. D. Stock, seeking to establish both a public and private easement over defendant's ranch land, which would permit him and others to drive cattle to and from summer range in the Shoshone National Forest and to enjoin defendant from interfering with such easement. The defendant denied and counterclaimed, demanding that title in the land described in the complaint be quieted in him.
Trial resulted in the court's finding against plaintiff as to any public highway or easement but that he and his predecessors in interest had, for more than ten years immediately preceding the commencement of the action, openly, notoriously, hostilely, visibly, exclusively, continuously, without interruption, and peaceably under claim of right adversely to defendant and his predecessor in interest with their knowledge and acquiescence, trailed 450 head of grown cattle and their calves across the defendant's land en route to and from summer grazing and specifically that such use by plaintiff and his predecessors was not permissive. Accordingly, the court denied defendant's counterclaim and entered a judgment granting easement across a portion of defendant's land and enjoined against plaintiff's being disturbed in the decreed rights. From this judgment defendant has appealed, contending that the use of the land by plaintiff and his predecessors in interest was permissive and not adverse, not continuous and uninterrupted, and not exclusive within the meaning of the law as applied to prescriptive easements.
The background, including the characteristics of the land over which the right-of-way was sought and the nature of the activities in which the residents of the area are engaged, are not only interesting but also important to the cause.
Plaintiff's Bear Creek Ranch lies approximately ten miles east of Dubois, Wyoming. His forest permit allows him to graze 450 cows with calves and a few bulls on an allotment in the Shoshone National Forest about twelve miles south and west of Dubois. He is allowed by the Forest Service to put his cattle onto the allotment around the first of July and to keep them there until October 10. The cattle are trailed across Roebling's own ranch, other private property, and Bureau of Land Management land to Dubois. They are then taken through the west edge of that town, turned south to cross the Wind River, going up what is called the Little Warm Springs Trail, first across the Albright Ranch and then Bureau of Land Management land. Stock's deeded land is adjacent to this BLM land, and he has a north-south divisional fence running between it and his land. This fence terminates at the edge of a very steep precipice, some one to two hundred yards south of a gate in the north-south fence known as Black Gate. Because of the rugged cliff the fence could not be carried to the forest line. The fence meanders toward the south and arrives on the forest line approximately four hundred yards west of the north-south line in which the Black Gate is located. This left between the line of the meandering fence and the southern property line of Stock's deeded land a portion which was fenced on the north but the fence on the south was partly in a state of disrepair. The Bear Creek cattle were trailed through the Black Gate and across approximately 1,320 feet of Stock's land before entering the national forest, the topography making it impossible to move them further south. (See the appendix.)
The law applicable to the controversy does not appear to be seriously in dispute, the defendant, citing 3 Powell, Law of Real Property § 412 (1967), says that in considering easement by prescription the authorities on real property are in agreement that the right is created by the use of land, provided such use is (1) adverse, (2) continuous and uninterrupted, and (3) for the period of prescription, 1 and contends that in order to prevail the plaintiff must prove all three of these essential elements. Plaintiff neither directly nor indirectly disputes this contention but maintains that the evidence shows the use of the land as a stock driveway to be adverse, nonpermissive, continuous and uninterrupted, as well as exclusive.
Aside from a diverse interpretation of the facts by the litigants, their basic disagreement in the appeal stems from defendant's assertion that Roebling's claimed prescriptive right was on land which is 'unenclosed, wild, rough, and open range country.' This contention is sharply challenged by plaintiff, and we think with cause. Frankly, we are at a loss to understand how it could reasonably be contended that the land over which the prescribed right is sought is unenclosed. Not only does the testimony fail to show this but to the contrary an numerous points reveals without contradiction that there is and has been for many years a fence around all of defendant's land and additionally Stock has placed a division fence which runs in a generally east-west direction and separates the main part of his ranch from a portion containing the area used as the driveway. Both photographs and maps introduced in evidence by plaintiff show the land to be enclosed. Consequently, and cited authority arising from controversies concerning prescriptive rights over unenclosed land is not pertinent to the matter before us and of little or no value.
The case turns upon the evidence which was adduced and the interpretation which was permissible under the circumstances. Much of the testimony in the record is at best peripheral to the issue before us since it relates to the activities of ranchers...
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