The Phoenix Insurance Company v. Garlitt
| Decision Date | 11 January 1902 |
| Docket Number | 12,257 |
| Citation | 67 P. 446,64 Kan. 93 |
| Parties | THE PHOENIX INSURANCE COMPANY v. CHARLES HASKETT AND S. C. GARLITT |
| Court | Kansas Supreme Court |
Decided January, 1902.
Error from Sumner district court; W. T. McBRIDE, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. EASEMENT--Definition--Creation. An easement for a private way is an interest in lands, and cannot be created by a parol grant.
2. EASEMENT--Prescription--Use by License. To obtain an easement for a private way by prescription, the use of such private way must be substantially such a use as, if applied to land, would give title by adverse occupancy. It must have been continuous, exclusive to the extent the nature of the use will permit, and adverse. A use under a mere license will not ripen into an easement by prescription.
John W Rose, for plaintiff in error.
Ed. T. Hackney, George T. Pitts, and F. A. Dinsmore, for defendants in error.
This was an action by the plaintiff below, who is the plaintiff in error here, to enjoin the continued obstruction of a private way across the lands of the defendant in error, along which it claimed a right to pass. The trial court made special findings of fact, and it seems from these, aided by the evidence introduced, which we have looked into, that the grantor of the plaintiff in error made an oral agreement with the grantor of the defendant in error some eighteen or twenty years ago, by which they should have certain mutual rights of passage across each others' lands; that the grantor of the plaintiff in error was permitted to pass eastward from the lands owned by him along the strip in controversy to a public highway running north and south on the east line of the lands of the defendant. This strip is twenty feet wide along the entire north line of the defendant's land. Subsequent conveyances of this land by the parties to this agreement contained no mention of this agreement or reservation of any such rights, but conveyed these lands by a description in accordance with the government survey. In a general way the grantors of the plaintiff in error and others having business with them have passed over and along the line of this twenty-foot way ever since the time of said agreement, and perhaps somewhat before that date. The defendant Charles Haskett has been since 1883 the owner of this east piece of land over which this private road is claimed, and the defendant S. C. Garlitt was at the time of the commencement of this suit, and had been for more than fourteen years theretofore, Haskett's tenant, in possession of this land.
Some thirteen or fourteen years before the trial of the action in the court below, Garlitt, without the authority or direction of Haskett, constructed the fence on the north side of this land, placing the same about twenty feet south of the north line thereof. It seems that at the time of the trial there was a fence exactly upon the north line, which had been constructed by the owner of the land to the north. When this fence was built does not appear. During all of the time Haskett has been the owner of the land he has been a resident of Saline county, and more than 100 miles from the land in question, and has only seen the land once or twice during each year of that time. He knew that there was some travel along the north side of his land from the land of the plaintiff to the highway to the east, but he did not know until shortly before the commencement of this action that such travel was under any claim of right to go over the land. In May, 1898, Garlitt, the tenant, removed the fence which he had built some thirteen or fourteen years theretofore and connected his other fence with the fence upon the line to the north, closed up this twenty-foot way and planted the same in crops. This action was one to enjoin him and the owner, Haskett, from maintaining such obstruction. At no time was there any work done at any point along this way to improve the same by either the public authorities or any private individual.
The court below refused to grant plaintiff an injunction as prayed for and it is now here seeking a reversal of this judgment.
The right to recover by the plaintiff was based upon the claim in its petition that this was a private way, but in the argument of counsel here much space is given to the discussion of what constitutes a public highway, what would be a dedication, and what acts would amount to a dedication for such highway. Inasmuch as the plaintiff based his right to the relief prayed for upon the claim that this strip of land was a private way and not a public highway, we think this discussion is much aside from the character of this litigation. If the plaintiff's right to the injunction prayed for grew out of the right of a private way across the land, as it...
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Garden City Company v. Bentrup, 5112.
...same as that required to obtain title to land by adverse possession. Wagner v. Thompson, 163 Kan. 662, 186 P.2d 278; Phoenix Insurance Co. v. Haskett, 64 Kan. 93, 67 P. 446. The defendants had a legal right to maintain their dam and reservoir, and no prescriptive right was necessary. The co......
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