Kirk v. Schultz , 63 Idaho 278 ( 1941 )

Petition for rehearing was filed in this case, also briefs of respective counsel. The first point urged by respondents is that by reason of certain language used in the original opinion respondents are required to remove the gate across the easment right of way. In paragraph 7 of appellants' complaint it is alleged "That on or about May 9, 1936, the defendants wrongfully, unlawfully and without right, closed up said easement and right of way by locking and padlocking a gate across said easement and right of way, and that the defendants have at all times since maintained said pad-locked gate on said easement and right of way, and refused to allow the plaintiffs to use the same for any purpose."

The relief sought under the above allegation is not the removal of the gate or its maintenance across the easement or right of way but removal of the padlock which permanently closed the easement and right of way, thereby denying appellants ingress and egress across respondents' land. The right of respondents to maintain the gate across the easement or right of way is conceded.

As a general rule the owner of land subject to an easement of a nature which requires the maintenance of a means for its enjoyment is not bound to keep such means in repair or to sustain any expense in maintaining it. (City of Bellevue v.Daly, 14 Idaho 545, 94 P. 1036; Coulsen v.Aberdeen-Springfield C. Co., 47 Idaho 619, 277 P. 542; PioneerIrr. Dist. v. Smith, 48 Idaho 734, 285 P. 474; West CoastPower Co. v. Buttram, 54 Idaho 318, 31 P.2d 687; 17 Am. Jur. p. 1003, par. 108, note 16; 28 C. J. S. p. 773, par. 94, note 34.) The duty rests upon appellants to open and close the gate when using the easement or right of way.

It is contended that the location of the easement or right of way is not definitely located and described. Appellants in paragraph 3 of their complaint allege "The plaintiffs and their predecessors in interest and title continuously used an easement and right of way for the passage and travel of persons on foot, on horseback and with pack outfits, and for horses, cattle, sheep and vehicles running through said Sections 28, 29, 32 and 5, as a means of ingress to and egress from said plaintiff's lands by plaintiffs and their predecessors in interest and the public, said easement and right of way running in a Northeasterly and Southwesterly direction through said Sections on the Southeasterly side of said Boise River and close thereto, and just above the high water mark, said easement and right of way being about 50 feet in width and the same at all times herein mentioned, being located in approximately the same place as the same is now located, along the Southeasterly side of said Boise River, said easement and right of way running down the Southeasterly side of said Boise River and connecting with the public highway running to Boise City, Idaho."

Respondents' main contention is, if we understand it, that the evidence indicates that the only property ever used for right of way or easement purposes through their land was from two to four feet wide and the widest that any evidence indicates was the width of a wagon or approximately five or six feet; and that the opinion should be modified directing the trial court to enter judgment in accordance with the above alleged evidence and not in accordance with the prayer in appellants' complaint, to-wit, about fifty feet in width.

The evidence is conflicting as to the width of the easement or right of way; but there is an abundance of evidence to warrant the conclusion that the easement or right of way, by reason of its use in the manner set out in the original opinion, became more or less a well-worn and well-defined line of travel; that in 1891 a wagon road, traversing respondents' land and a part of appellants' land, was constructed from Charcoal Creek to Birch Creek.

There is ample evidence to support the conclusion that the easement or right of way is located substantially in the same place as of the date of its original use. Since the evidence as to the width of the easement is in conflict we would not be justified in concluding that its width did not exceed from two to four feet or the width of a wagon, approximately five or six feet, as contended by respondents, and directing the trial court to enter its decree to that effect.

It has been generally held that, if not otherwise fixed, the actual location of an easement or right of way is determined by its practical location and use over the period required to establish such easement or right of way. The easement or right of way in question has been used by appellants and their predecessors for approximately 26 years. The use cannot be extended but is limited to a reasonable and necessary enjoyment by appellants for the purposes and in the manner and to no greater extent than said easement or right of way has heretofore been used; that is, to no greater extent than is reasonably necessary for its use.

Primarily this action was brought for the purpose of having determined whether or not appellants had an easement or right of way over respondents' land.

The trial court's judgment as to appellants' second cause of action must be reversed and judgment entered in appellants' favor to the effect that appellants have an easement or right of way through and across respondents' land burdened with the duty to maintain the same in a state of good repair and efficiently so that no unnecessary damage will result from its use to the servient estate, and limited to the reasonable and necessary enjoyment of said easement or right of way as above indicated. The cause is remanded with instructions to the trial court to make and enter its decree as herein indicated with the right to take further testimony upon the question of the necessary width, course, and direction of the easement or right of way if deemed necessary.

Givens, Morgan, Holden, and Ailshie, JJ., concur.