Weber v. Johnston Fuel Liners, Inc.

• Decision Date: 07 March 1974
• Docket Number: Nos. 4267 and 4268,s. 4267 and 4268
• Parties: Wayne WEBER and Evelyn S. Weber, Appellants (Defendants below), v. JOHNSTON FUEL LINERS, INC., a Wyoming corporation, and the Bard Ranch Company, a corporation, Appellees (Plaintiffs below). JOHNSTON FUEL LINERS, INC., a Wyoming corporation, and the Bard Ranch Company, a corporation, Appellants (Plaintiffs below), v. Wayne WEBER and Evelyn S. Weber, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 972

519 P.2d 972

Wayne WEBER and Evelyn S. Weber, Appellants (Defendants below), v. JOHNSTON FUEL LINERS, INC., a Wyoming corporation, and the Bard Ranch Company, a corporation, Appellees (Plaintiffs below).

JOHNSTON FUEL LINERS, INC., a Wyoming corporation, and the Bard Ranch Company, a corporation, Appellants (Plaintiffs below), v. Wayne WEBER and Evelyn S. Weber, Appellees (Defendants below).

Nos. 4267 and 4268.

Supreme Court of Wyoming.

March 7, 1974.

Jack R. Gage, Hanes, Carmichael, Johnson, Gage & Speight, Cheyenne, for appellants in No. 4267 and appellees in 4268.

William R. Jones and Raymond B. Hunkins, Jones, Jones, Vines & Hunkins, Wheatland, for appellees in No. 4267 and appellants in 4268.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and McCLINTOCK, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

This proceeding involves appeals by both parties from a judgment entered in the lower court. The appeals have been consolidated for the purposes of briefs and argument. To avoid confusion the parties will be mentioned herein by their respective names, using Johnston for Johnston Fuel Liners, Inc., and Bard Ranch Company; Weber for Weber and his wife; or in some instances as they appeared in the trial court.

These parties own adjoining ranches east of Wheatland, Wyoming. A private road traversed the lands of Weber, which is and was used by Johnston to get to the nearest highway. Johnston bases its claim upon a right-of-way conveyance from Samuel Butler Hall, et ux., to Howe Ranch, Inc., dated May 22, 1959, which right-of-way was obtained by Howe at the time it sold the lands now owned by Weber to Weber's predecessor in interest. Howe at that time required the execution of this right-of-way for the necessary ingress and egress as a part of this sale. Weber claims the ownership of the right-of-way by virtue of an assignment from Howe Ranch, Inc., to him and his wife dated September 9, 1971, after this suit was filed.

Johnston used this right-of-way from the time of its purchase of the lands without question of its right by Weber or any person until this controversy arose in August 1971. At that time, after some talks, Weber constructed a motor gate or 'cattle guard' and a hinged swinging gate across the questioned right-of-way. Johnston, believing this dangerous and an interference with the safe and convenient use of the right-of-way, began this proceeding. No objection was directed at the right to install this cattle guard and gate but objection was made to the manner of its installation. During the negotiations prior to their installation Johnston asked and Weber agreed that the details of this installation should be approved by Kennedy, the County Engineer in Wheatland, in which request Weber acquiesced. However, Weber was unable to get the approval or inspection by Kennedy because of Kennedy's other commitments and Weber proceeded with this installation. After the construction of the so-called cattle guard and hanging of the gate Johnston filed its complaint and secured a temporary restraining order without notice. Upon the hearing for temporary injunction, which was denied, this order was held to have been wrongfully issued.

The judgment from which these appeals are prosecuted held that Johnston owned and possessed a valid right-of-way across certain lands of Weber situate in Section 21, Township 24 North, Range 67 West of the 6th P.M., Platte County, Wyoming; that it was created by a conveyance of a right-of-way dated May 22, 1959, in which Samuel Benjamin Hall, et ux., were grantors to Howe Ranch, Inc., as grantee; and that the assignment of the easement from Howe Ranch, Inc., to Weber, et ux., dated September 9, 1971, purportedly assigning the easement was invalid and of no legal effect. The judgment established an easement 50 feet wide, being 25 feet on either side of the center line of the established and existing roadway across Section 21, and was to be used solely and only by Johnston as provided in the original grant as follows:

'* * * for the purpose of walking, driving or herding cattle and livestock and the driving and operation of motor driven vehicles thereon, * * *'

The repair and maintenance of the roadway were to be done by Johnston at its sole expense and it might be used by Weber as a means of ingress and egress to his property in Section 21. The court enjoined Weber permanently from in any manner interfering with the use of the roadway for the purposes mentioned and he was restrained from damaging, altering, or changing the surface of the roadway and the easement upon which it was established, allowing Weber to construct ramps from the right-of-way for access through his fields, such construction to be done in a manner to avoid accumulation of water on the roadway; ordered that Weber should maintain and repair the presently existing cattle guard and gate but within 30 days should extend the approach in an approximate straight line from a point 150 feet north and a point 150 feet south to the posts on the east side of the cattle guard; and that Johnston might install temporary fencing along the right-of-way to restrain the livestock being driven or herded across the lands of Weber and to restrain the livestock from injury to the lands and crops of Weber but must remove the fences when the cattle had been moved. The judgment further held that the temporary restraining order issued at the beginning of the suit was wrongfully issued and that Weber had suffered damages in the sum of $1000 to be paid from the $1000 bond required for the issuance thereof.

Weber seeks reversal upon several grounds which will be discussed. The parties substantially agreed in brief and argument that the principal question involved is the title or ownership of the right-of-way. For that reason we shall first make disposal of that question.

The lower court held that Johnston was the owner of a valid right-of-way over the lands of Weber created by the Hall conveyance and that the conveyance under which Weber claimed dated September 9, 1971, from Howe Ranch, Inc., to Weber, et ux., purportedly assigning such easement was invalid and of no force or effect. This holding was correct.

An examination of the Hall right-of-way grant and the testimony with reference to the condition on which it was obtained reveals strong evidence that the conveyance created an appurtenant easement for the use and benefit of the then lands of Howe Ranch, Inc., and was attached thereto. It contained a perpetual right-of-way grant for a stated purpose, as mentioned before, and the right to repair and maintain the same and the conveyance was to the grantee therein, 'its successors and assigns.' It also contained an express provision for its reversion to the grantors, their heirs, successors, and assigns if it be abandoned or the use ceased. All these conditions and terms are badges of an appurtenant easement. Weber does not in brief or argument cite any authority that this instrument created a personal right or license in Howe Ranch, Inc., or that the easement was in gross. This in spite of the fact that if he can claim any title to said right-of-way at all it must be so construed. An easement appurtenant may be defined as:

'An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his use of the land.' 5 A.L.I. Restatement of the Law, Property Servitudes, § 453, p. 2914.

as contrasted to an easement in gross defined thereafter in § 454, p. 2917, as follows:

'An easement is in gross when it is not created to benefit or when it does not benefit the possessor of any tract of land in his use of it as such possessor.'

'* * * an easement is nver presumed to be in gross, when it can fairly be construed to be appurtenant.

* * *' Ginther v. Bammel, Tex.Civ.App., 336 S.W.2d 759, 763.

Also see Lester Coal Corporation v. Lester, 203 Va. 93, 122 S.E.2d 901, 904; 28 C.J.S. Easements § 4, pp. 636-638, and 25 Am.Jur.2d Easements and Licenses, § 13, p. 427. This instrument created an easement appurtenant and could not be separated from the dominant estate, Ricelli v. Atkinson, 99 Ohio App. 175, 132 N.E.2d 123, 127; William S. Stokes, Jr., Inc. v. Matney, 194 Va. 339, 73 S.E.2d 269, 272; McClintic-Marshall Company v. Ford Motor Company, 254 Mich. 305, 236 N.W. 792, 796, 77 A.L.R. 807, and cases cited there; 28 C.J.S. Easements § 45, p. 708; 25 Am.Jur.2d Easements and Licenses, § 94, p. 500.

Weber asserts that based upon the later assignment standing uncontradicted this is conclusive evidence of the title. This contention cannot, of course, prevail because this interest was not alienable, pretending as it did to convey an easement not separable from the lands to which it was appurtenant, and was therefore of no legal effect, and was ineffective to convey any interest therein or title thereto, Miller v. Powers, 184 Ky. 417, 212 S.W. 453, 455; Burns v. Woodson, Okl., 363 P.2d 233, 236; Concord Corporation v. Huff, 144 Colo. 72, 355 P.2d 73, 75.

The record further demonstrates that Weber at all times-until this suit was filed and until he obtained this assignment of right-of-way-recognized the use, ownership, and possession by Johnston and apparently construed it as a continuing easement. This is evidenced by their mutual negotiations and attempted agreement as to the manner of the installation of the controversial cattle guard and gate, and Weber's testimony about one conversation with Johnston, telling it if there was not 'within your 50 feet of right-of-way' sufficient dirt it could use land from the areas Weber was going to level on the remainder of these premises. Weber firmly contends that Johnston has failed to establish its title to this right-of-way, relying upon Bybee v. Northern Utilities Company, Wyo., 375 P.2d 477, insisting this case is not distinguishable, and further asserting that because of the introduction of his conveyance from Howe...