Zollinger v. Frank

• Citation: 110 Utah 514,175 P.2d 714
• Decision Date: 30 December 1946
• Docket Number: 6966
• Court: Supreme Court of Utah
• Parties: ZOLLINGER v. FRANK

175 P.2d 714

110 Utah 514

ZOLLINGER v. FRANK

No. 6966

Supreme Court of Utah

December 30, 1946

H. A Sjostrom, of Logan, for appellant.

Young &amp Bullen, of Logan, for respondent.

LARSON C. J., and McDONOUGH, PRATT, and WADE, JJ., concur.

OPINION

WOLFE, Justice.

This is a right-of-way dispute. Zollinger owns two pieces of farm land, one of three acres and one of eleven acres, east of and adjoining a piece of farm land owned by Mrs. Frank. A public road runs along the west side of the Frank land. Zollinger claims a right of way by prescription across the north end of the Frank property for the purpose of traveling with all types of vehicles, machinery and on foot from the public road to his fourteen acres.

Zollinger filed this action against Mrs. Frank to restrain her from interfering with his alleged right of way over her land and for damages for blocking that right of way and removing the surface therefrom. Mrs. Frank denied Zollinger had such a right of way and counterclaimed to quiet title to the property against Zollinger.

The lower court sitting without a jury determined that Zollinger has the claimed right of way and restrained Mrs. Frank from interfering with his use thereof and awarded him $ 25 damages. Mrs. Frank appeals.

The first question presented is: Was the use by Zollinger and his predecessors in interest during the prescriptive period of the strip of land involved adverse to Mrs. Frank and her predecessors in interest?

Both parties agree that the use of the strip of land must have been 'adverse' to Mrs. Frank and her predecessors in interest during the prescriptive period in order to give rise to the claimed easement. The disagreement arises over whether or not the facts of this case show adverse use for the prescriptive period.

The record clearly shows that Zollinger and his predecessors in interest have used the strip of land in question as a road to their land since 1903. Even one of Mrs. Frank's witnesses, Elias Peter Hansen, testified that he saw Zollinger use the road so often that he 'thought he [Zollinger] had bought a right of way there.' Also the record clearly supports the finding of the trial court that Zollinger and his predecessors in interest used the road at such times as they desired for a period of over forty years.

The courts are not in accord as to the exact meaning of 'adverse use' when applied to prescriptive easements. Thompson on Real Property, Sec. 377, Vol. 1, page 487. Some of the courts use the phrases 'use under claim of right' or 'hostile use.' Holdsworth in his History of the English Law, Vol. VII, p. 352, says:

'It would, I think, be true to say that there is no branch of English law which is in a more unsatisfactory state. There are, indeed, other branches of English law which stand in need of an intelligent restatement; but no mere restatement can clear up the muddle which the courts and the Legislature have combined to make of the law of prescription.'

Holdsworth's comments on the law of prescription in England are probably equally applicable to the condition in this country which exists as a result of the courts' unfortunate choice of words in characterizing the use necessary to initiate a prescriptive right. Some courts say it must be 'peaceable,' others say 'hostile.' How can the use be both 'peaceable' and 'hostile'? Some say it must be both 'adverse to' and 'acquiesced in by' the servient owner. 'Acquiescence' by the servient owner seems inconsistent with 'adverse' use; it hints more of 'permissive' use for certainly the servient owner 'acquiesces' in a permissive use.

Regardless of the words used to characterize this element of the nature of the use necessary to give rise to a prescriptive easement, it is our opinion that the courts mean that the use must be against the owner as distinguished from under the owner.

Also divergent are the views of the courts on the burden of proof and presumptions in prescriptive easement cases. As said in Section 72, Easements, 17 Am.Jur. 981:

'The prevailing rule is that where a claimant has shown an open, visible, continuous, and unmolested use of land for the period of time sufficient to acquire an easement by adverse user, the use will be presumed to be under a claim of right. The owner of the servient estate, in order to avoid the acquisition of an easement by prescription, has the burden of rebutting this presumption by showing that the use was permissive. * * * In a few jurisdictions it is held that the claimant carries the burden of proving that the use was, as of right, hostile and adverse. If he leaves it doubtful whether the enjoyment was adverse, the presumption is not conclusive in his favor.'

See also Thompson on Real Property, Sec. 394, Vol. I, page 509.

We think the better rule is that described as the prevailing rule in the above quotation. That is, where a claimant has shown an open and continuous use of the land for the prescriptive period (20 years in Utah) the use will be presumed to have been against the owner and the owner of the servient estate to prevent the prescriptive easement from arising has the burden of showing that the use was under him instead of against him. This rule was mentioned in the recent case of Big Cottonwood Tanner Ditch Co. v. Moyle, Utah, 159 P.2d 596, (on rehearing) 174 P.2d 148, 155, where it was said: 'It is true that to establish an easement the use must be notorious and continuous and on this adverseness -- that is, holding against the owner -- will be presumed.' See also Northwest Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75, 123 P.2d 771; Eagle Rock Corporation v. Idamont Hotel Co., 59 Idaho 413, 85 P.2d 242; Fleming v. Howard, 150 Cal. 28, 87 P. 908; Stetson v. Youngquist, 76 Mont. 600, 248 P. 196.

In this case Zollinger shows and the court found an open and continuous use for the prescriptive period. The presumption that the use was against the landowner therefore arises. The evidence tending to rebut that presumption and to show the use of the road was under the landowner, according to Mrs. Frank's contentions, is as follows:

It is contended that the road and the gate in the fence at the west terminus of the road were opened for and used by the landowner and that Zollinger's use of the road did not injure the land and did not interfere with the landowner's use of same and therefore his use was permissive and under the landowner. In the early case of Harkness v. Woodmansee, 7 Utah 227, 26 P. 291, 293, this court recognized the principle as follows: 'Where a person opens a way for the use of his own premises, and another person uses it also without causing damage, the presumption is, in the absence of evidence to the contrary, that such use by the latter was permissive, and not under claim of right.'

The facts of this case do not bring it within the above quoted rule from Harkness v. Woodmansee because the evidence does not support the proposition that this road was opened by the landowner for his own use. The record shows that the landowner used the road only infrequently and then used only a portion of it. Zollinger used the road at such times as he desired which was much more frequently than the landowner and Zollinger used the entire length of the road not just part of it.

The evidence shows that the strip of land used was not readily susceptible for use as farm land because it was higher than the surrounding land and difficult to irrigate. It is contended that because of the condition of the land the landowner had no...