Stubblefield v. Osborn

• Decision Date: 01 April 1948
• Docket Number: 32350.
• Citation: 31 N.W.2d 547,149 Neb. 566
• Parties: STUBBLEFIELD et al. v. OSBORN et al.
• Court: Nebraska Supreme Court

31 N.W.2d 547

149 Neb. 566

STUBBLEFIELD et al. v. OSBORN et al.

No. 32350.

Supreme Court of Nebraska

April 1, 1948

Syllabus by the Court.

1. The use and enjoyment which will give title by prescription to an easement is substantially the same in quality and characteristics as the adverse possession which will give title to real estate.

2. In must be adverse, under a claim of right, continuous and uninterrupted, open and notorious, exclusive, with the knowledge and acquiescence of the owner of the servient tenement, and must continue for the full prescriptive period.

3. A permissive use of the land of another, that is a use or license exercised in subordination to the other's claim and ownership, is not adverse and cannot give an easement by prescription no matter how long it may be continued.

4. To establish a prescriptive right to an easement, it must have been exercised under a claim of right. A use by express or implied permission or license cannot ripen into an easement by prescription.

5. Grants of land bounded upon rivers in this state carry with them the exclusive right and title of the grantees to the center or thread of the stream, unless the terms of the grant clearly denote an intention to stop at the bank or margin of the river.

6. The thread or center of a channel, as the term is above employed, must be the line which would give the owners on either side access to the water, whatever its stage might be, and particularly at its lowest flow.

7. Under the evidence adduced, the trial court was not in error in determining the plaintiffs' rights superior to those of the defendants in the use and occupancy of the islands in question.

Dryden &amp Jensen, of Kearney, for appellants.

Blackledge & Sidner, of Kearney, for appellees.

Heard before SIMMONS, C. J., MESSMORE, YEAGER, CHAPPELL and WENKE, JJ., and BARTOS, and JACKSON, District Judges.

MESSMORE Justice.

This is an action for an injunction to enjoin the defendants from preventing the plaintiffs from crossing over certain lands of the defendants; to adjudge and decree the plaintiffs to have a prescriptive right to enter upon the premises of the defendants; to enjoin the defendants from interfering with the plaintiffs' claimed right to the use and occupancy of certain unplatted islands in the Platte River; and to declare the plaintiffs to be the owners of such islands and to quiet title in them.

It appears from the record that on October 7, 1943, defendants Osborn acquired title, by administrator's deed, to Lot 9 in Section 27 and Lot 1 in Section 34, Township 9 North, Range 13 West, of the Sixth P.M. By referee's deed dated July 24, 1944, they acquired title to Lot 10 in Section 27. By deed dated July 31, 1944, they conveyed a one-half interest in the premises to the defendants Bateman, which deed was filed of record January 8, 1945. All of the lands hereinbefore described are situated in Buffalo County, Nebraska. Previous to the defendants acquiring title to the above-described lands, the east portion of the land was owned by one Bolton, and Lot 1 in Section 34, which is the west portion of the land, was owned by one Stearley. There lands are situated on the north bank of the Platte River, a nonnavigable stream which runs east and west.

The islands in question are all south of the lands heretofore described, and are designated in an exhibit in evidence as Islands Nos. 1, 2, and 3. These islands are approximately 500 yards south of the north bank of the Platte River. Island No. 1 was described as being approximately 75 to 100 yards in length and 20 yards in width. Island No. 2 was 30 to 40 yards west of Island No. 1 and Island No. 3 was 50 yards south of the west point of Island No. 2.

The plaintiffs do not have a patent from the United States Government, nor any deed or other instrument in writing, purporting to convey to them any title or interest in the three islands. In 1925 or 1926, the plaintiffs went together to construct blinds on the islands for the purpose of hunting ducks. In 1926, they constructed a shack about 10 or 12 feet in width and 22 feet in length with a board floor and shingled roof on Island No. 1, and installed a pump. They fenced the west end of this island for the purpose of using live decoys. On Island No. 2 they sunk a duck-hunting box on the west point, and constructed a blind at that place. On Island No. 3 they constructed a box and a permanent blind to use when the water was so that they could take advantage of it. Later another blind was constructed on this island. These improvements on the islands were clearly visible.

At the time of the foregoing construction, the entire bed of the river was about half a mile wide with the deepest water right next to the north bank which ran along the Bolton and Stearley land. That portion of the river north of the islands went dry last. The river channel was clear over to the islands.

The manner of crossing the land now owned by the defendants was described. In 1927 or 1928, the road used was a private road that led up to the improvements on the Bolton place starting at a point right at the river bank and going in a direct line towards the dwellings of the farmstead, in a southwesterly direction. It was wide enough for a car or wagon to travel. About 50 to 80 yards east of the improvements they opened a gate and drove through a pasture, after making a trail and trimming out brush. The road through the brush ended at the fence line dividing the Stearley and Bolton lands, at the river bank. At first they used a boat to get to the blinds, and later were able to wade. They would wade directly south, approximately 500 yards, to the blinds. This method of access to the islands continued up to the time this action was brought.

During the period of more than 20 years these plaintiffs, with certain invited guests, used the afore described method of getting to the islands for the duck-hunting season. At certain times in the spring they would look over and repair their equipment on the islands, and on occasions three or four times each year would hold picnics on the islands. The plaintiffs left personal property in the shack at all times. On occasions when the water was low they would spear fish in what is termed the north channel, heretofore described. They were never questioned by those occupying the land as to their right to cross over it. They opened gates to get in and out of the property, which were constructed to keep the stock from getting out in the fall. At times they had conversations with the owners as to the weather, the hunting conditions, and their success in hunting. Apparently there were no other conversations with reference to the plaintiffs' claimed right of an easement across the lands. Other hunters recognized and looked upon the plaintiffs as the owners of the islands during the 20 years or more that the plaintiffs used the islands for the purpose of hunting.

It is admitted by the plaintiffs who testified that others used the facilities to cross the lands in question for the purpose of hunting practically every year, and there is no evidence of exclusive right in the plaintiffs to cross such lands. There is no evidence that taxes were paid on the islands by the plaintiffs or any other person or persons.

There is further testimony describing the channel of the river as testified to by the plaintiffs.

The first time they were notified that they could not go upon the defendants' lands was the second day of the hunting season of 1946, when they were informed that they could not use the islands, had no right to them, and that the defendants had the right to use the islands and would deny them and all others permission to cross over their lands for the purpose of using the islands. The defendant Osborn posted 'no trespassing' signs on the premises at the fence line separating the public road from the driveway that led to the improvements on defendants' farm.

One of the defendants testified that the road down to the river from the premises was just a trail through the pasture, angling through the brush with several turns, terminating at the river, and was not a well-defined road; and that he saw no signs of a road leading from the premises to that point. This testimony was rebutted to the effect that the tracks to the river from the Bolton premises were eight to ten inches deep, or from four to six inches deep; that there was not more than one path, and that the plaintiffs always used the same path in going down to the river. They cut brush each year in three places in order to make this path down to the river.

The trial court dismissed the plaintiffs' petition as to the claimed prescriptive right-of-way and easement over and across the described Lots 9 and 10, and dissolved the restraining order against the defendants insofar as any right-of-way or easement over and across the defendants lands or any part of the same was concerned. The court found that the plaintiffs' use of the lands had not been continuous hostile, adverse, or under any claim of ownership or color of title; that such use had been seasonal, occasional, and permissive. The court found...