Ward v. Farwell

• Decision Date: 01 December 1881
• Parties: WARD v. FARWELL.
• Court: Colorado Supreme Court

6 Colo. 66

WARD v. FARWELL.

Supreme Court of Colorado

December, 1881

Error to District Court of Clear Creek County.

THE facts are stated in the opinion.

Mr. W T. HUGHES, for plaintiff in error.

Messrs MORRISON and FILLIUS, for defendant in error.

ELBERT C. J.

Farwell the defendant in error, filed his complaint in the court below, praying an injunction against Ward, the plaintiff in error, restraining him and his employees from obstructing an alleged public road leading to the 'Judd and Crosby Reduction Works,' the same being a large and extensive mill for the reduction of silver ores, situate in Georgetown, and owned by the plaintiff Farwell.

A temporary injunction was issued, which upon the final hearing was made perpetual, and the defendant Ward prosecutes this writ of error.

One of the termini of the road in question is at West street, on which at that point is the northwest side at Clear Creek. It runs thence southerly across lots four, five and six, in block twenty-nine, to what is called the upper bridge; thence easterly along a narrow strip of land between the stream and the mountain to the mill; through the mill, and thence to the lower bridge.

Owing to the narrowness of this part of the road, teams cannot turn, and having approached the mill by either termini, must find egress by the other.

The upper bridge, and for the most part the road on the south side between the bridges, are located on premises belonging to the mill.

The contention concerns that portion of the road on the north side of the stream between West street and the upper bridge, which crosses, in nearly a diagonal course, lots four, five and six. These lots are the property of the defendant Ward, except a portion of lot four, south of the road, which belongs to the plaintiff Farwell.

Upon both lots, four and six, the defendant Ward erected a barricade across the road, which prevented ingress and egress to and from the mill by way of West street and the upper bridge, and which are the obstructions complained of.

The upper bridge was built by Judd and Crosby, the grantors of Farwell, in 1874, and the road extended over the lots named, with Ward's consent, to West street, since which time the road as described, it is claimed, has been in constant use by the public, but chiefly by parties sending ores to plaintiff's mill.

The defendant admits a personal license, revocable at will, to Judd and Crosby, the grantors of Farwell, to build the road on the lots in question.

The plaintiff claims the right to use the road, first, as an easement appurtenant to lot four; second, as a public road by reason of dedication and user.

The issues formed by the pleadings were submitted to a jury.

Upon the trial below the plaintiff rested his case chiefly upon a deed made in 1875 by one McNamara, the grantee of Ward, to the Judd and Crosby Company, of a portion of lot four.

1. It is claimed in argument that this road is an easement appurtenant to the part of lot four deeded by McNamara to Judd and Crosby, and passed with the estate to plaintiff Farwell.

An easement is an interest in lands, and can only be acquired by grant, and ordinarily by deed, or what is deemed to be equivalent thereto.

A parol license is insufficient for the purpose.

We find no grant to support this claim of the plaintiff.

(1) The deed from McNamara to Judd and Crosby contains no express grant of a way over the lots mentioned.

(2) There is no claim that the easement existed by prescription, which supposes a grant.

(3) The easement cannot be implied, because it does not appear that it is a way of necessity.

It is true that an easement once created becomes appurtenant to the estate in whose favor it has been created or acquired, and runs with it, but it must first exist.

An easement, therefore, cannot be said to be appurtenant to the lot conveyed, because nothing will pass as an easement to a dominant estate, although it may have been used with it, unless a right thus to use it has become consummate and thereby made appurtenant to the granted premises, or is expressly mentioned in the deed conveying the same as an easement intended to be conveyed thereby. Wash. Eas. & Serv. *18 to *32, and cases cited.

This eliminates from the discussion this branch of the case of the plaintiff below.

2. It is claimed that the road in question is a public road by reason of dedication and user.

Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by or on behalf of the public.

A common public road originating in such an appropriation and acceptance is a highway by dedication. Angell, Highways, sec. 132.

The parties to a dedication are the individual proprietor and the public at large. As to what will constitute a dedication, Mr. Angell says: 'No particular formality is required, it is not affected by the statute of frauds; it may be made either with or without writing by any act of the owner, such as throwing open his land to the public travel, or platting it and selling lots bounded by streets designated in the plat, thereby indicating a clear intention to dedicate; or an acquiescence in the use of his land for a highway, or his declared assent to such use, will be sufficient; the dedication being proved in most, if not in all cases, by matter in pais, and not by deed.

'The vital principle of dedication is intention to dedicate-the animus dedicandi; and whenever this is unequivocally manifested, the dedication, so far as the owner of the soil is concerned, has been made.

'Time, therefore, though often a very material ingredient in the evidence, is not an indispensable ingredient in the act of dedication; * * * if the act of dedication be unequivocal it may take place immediately. * * *

'If accepted and used by the public in...