Webster v. Magleby
| Decision Date | 20 April 1977 |
| Docket Number | No. 12193,12193 |
| Parties | Lewis M. WEBSTER et al., Plaintiffs-Appellants, v. Sterling MAGLEBY et al., Defendants-Respondents. |
| Court | Idaho Supreme Court |
Larry M. Boyle, Hansen & Boyle, Idaho Falls, for plaintiffs-appellants.
Blair John Grover, Lee, Ririe & Grover, Rigby, for defendants-respondents.
This is an appeal from a judgment in favor of defendants Magleby and against plaintiffs Webster in a suit wherein plaintiffs claim an easement over and across defendants' land and sought an injunction to prevent defendants from interfering with the use of said easement. The trial court found against the plaintiffs and in favor of defendants on the issue of the easement and granted an injunction in favor of the defendants and preventing plaintiffs use of the claimed easement. We affirm.
The controversy involves two families who own adjoining property. Prior to 1947, the Magleby family (parents of defendants Sterling and Erma Magleby) owned all the land in question which is located near Henry's Lake in Fremont County, Idaho. In that year they conveyed a portion of the land to the plaintiff Lola Webster and her husband Kenneth (now deceased).
Since that time in 1947 the Websters have continuously used their land for pasturing cattle. Their property is divided into two pasture portions by a sizable swamp which allegedly prevents them from moving their cattle from one portion to the other. A county road is adjacent to each of the pieces of the Websters' property and their cattle can be moved from one portion to another by utilizing the road. Use of that county road involves a cattle drive of between two and four miles and the Websters alleged that herding their cattle along that road is difficult. It is also indicated that the swamp dividing the Websters' property is not totally impassable and at times cattle have been driven from one pasture to another through the swamp.
The Websters assert an easement for driving their cattle across approximately 1/4 mile of the Maglebys' land which eliminates the need to traverse the swamp and eliminates the need to use the county road with its increase in travel distance and the alleged attendant dangers connected therewith.
Plaintiffs Webster since 1947 have thus preferred to use the shorter travel distance across defendants' land and have so driven their cattle at least twice every year. In 1973 the Maglebys for the first time protested the Websters' driving their cattle across the Magleby land. In 1974 the Maglebys locked the gate giving access to their land after which the Websters forced it open and drove their cattle through as before. Thereafter the Websters filed this action and as noted, the district court held against the plaintiffs and enjoined any further usage of the Magleby property.
Websters assert two theories on appeal. First, they argue that a prescriptive easement was established as a matter of law. A prescriptive easement must be established by open notorious use of the servient property with the actual or imputed knowledge thereof by the owner of the servient tenement. The use must be continuous for a prescriptive period of five years and must be done under a claim of right. West v. Smith, 95 Idaho 550, 511 P.2d 1326 (1973). Although there is some argument as to the use being continuous for five years and whether the use was open and notorious, the principal dispute here concerns the last element, that of claim of right.
A use begun under permission or license can be changed into one exercised as a claim of right (i. e., hostile and adverse) only after unequivocal conduct giving the owner of the servient tenement notice of the hostility and adverseness of such claim. Thompson, On Real Property (1961) § 345, p. 253. See, Sinnett v. Werelus, 83 Idaho 514, 365 P.2d 952 (1961); Gameson v. Remer, 96 Idaho 789, 537 P.2d 631 (1975). The evidence on behalf of the defendants Magleby was that in 1947, prior to the first crossing, Kenneth Webster approached them with a request 'we would like to move our cattle across Bootjack.' The defendants testified that in response thereto they granted permission for crossing of their land. Thereafter and until his...
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