Northwestern & Pacific Hypotheekbank v. Hobson , 59 Idaho 119 ( 1938 )

Respondent sought by this action to establish a right of way for a road, across appellant's land, and to a bridge, partly on appellant's land, and to restrain and enjoin appellant from interfering with respondent's use thereof.

The court in effect found that respondent and its predecessor in interest were in open, notorious, continuous, adverse, and uninterrupted use of the said right of way from 1928 to 1936, a length of time exceeding the 5 year period prescribed by secs. 5-203 and 5-205, I. C. A.; that the right of way became an appurtenance to the land of respondent; that a prescriptive right in such right of way was established; and that appellant had used said bridge as a means of traveling from one portion of his land to another under a claim of right, jointly with respondent, for more than five years, and concluded the right of way, the road and the bridge, were appurtenances to respondent's land; that a prescriptive right had been established thereto; that appellant should be enjoined from interfering with respondent's use as a means of ingress and egress to and from its land; and that appellant should have the right to use said right of way and bridge jointly with respondent. Judgment was entered in accordance with said findings and conclusions, from which judgment this appeal was taken.

Appellant's four assignments of error may be divided into two main propositions: First, that the evidence is insufficient to support the findings, and the judgment based thereon, to the effect that respondent and his predecessor were in open, notorious, continuous, adverse and uninterrupted use of the right of way and bridge from 1928 to 1936, for the reasons (1) that the use from 1928 to 1931 was without the knowledge of appellant, (2) that after 1931 it was with the permission of appellant and not adverse, and (3) that subsequent to 1931 respondent recognized appellant's ownership by an attempt to purchase the right of way, and Second, that the court erred in failing to find that appellant is the owner of the bridge.

Respondent secured its title to the lands, to which the court found the right of way appurtenant, through foreclosure of a mortgage to respondent, placed on the land by Blaylock in 1920 or 1922, which mortgage continued in existence until foreclosed in 1934. Respondent purchased at the foreclosure sale and acquired possession of the land in 1934. Certificate of sale issued March 9, 1934, and sheriff's deed issued April 6, 1935.

The record discloses that in 1928 Will Hobson was in possession of appellant's land under a contract to purchase the same, the nature of which contract is not disclosed. Prior to the inception of the right claimed by respondent, Blaylock, respondent's predecessor, entered into an oral agreement with Will Hobson in substance that Blaylock would pay Will Hobson a price to be made "right" for a right of way across the appellant's land and if necessary Blaylock was to satisfy claims which might arise because of a community well lying in the center of the road, and Will Hobson would give a deed for the easement. Thereafter and in 1928 Blaylock built a bridge at a cost to him of $512 across the canal of the Twin Falls Canal Company, the bridge being substantially constructed with concrete abutments at the ends and concrete support in the middle. At the same time Blaylock fenced the right of way with material furnished from appellant's land. Blaylock built some grade and a portion of the road was graded by one Howard, and use of the road and bridge as a means of ingress and egress to respondent's land commenced in 1928. The use of the road and bridge continued until 1936 at which time appellant made protest, strung wires across the roadway, and posted notices thereon. User for the period 1928 to 1936 clearly appears, however the circumstances under which said use continued is questioned.

As heretofore stated, appellant's first proposition is that user for the period 1928 to 1931 was without the knowledge of appellant. The record discloses that appellant lived in the vicinity during all of such period and that the use of the road and bridge was continuous, open and notorious, and of such a character as to give notice for all to sec. There is evidence likewise of actual knowledge on the part of appellant. Blaylock in effect testified that appellant "objected when he started." Appellant testified with reference to his own use of the road and bridge as follows:

"Q. Since the construction of this bridge (1928) you or your tenants have used that method of crossing the Low Line Canal to reach your property south of the canal?

"A. Since its been built I have."

In so far as the record discloses appellant's testimony purported to his own knowledge and during such testimony the witness stated that the fence, built in 1928, was built from material taken off his place, wire he had not used. Again it appears that appellant when questioned as to the work that was done on the road testified that Mr. Howard had graded it up in order to keep the water from running through his corral, and from Blaylock's testimony it appears that such grading was done in 1928. Lack of knowledge on the part of appellant of the building of the bridge, fencing and grading of the road, and use thereof by respondent's predecessor is inconsistent with the testimony above referred to. It further appears that appellant in effect recognized that someone had a right of way across his land, other than himself, inasmuch as he relies in part upon his exhibit "1," a purported bill of sale to himself of a right of way, executed by Blaylock and wife March 9, 1934, which instrument recites that Blaylock and wife:

"Grant, Bargain, and Sell and Convey unto said party of the second part (appellant), his executors, administrators and assigns a road right of way along the East line of the Geo Hobson ranch laying SE of Buhl this being all my right titleand equity in the said right of way and the bridge." (Emphasis inserted.)

It appears there was evidence of actual knowledge on appellant's part of the claimed right as early as 1928, as well as circumstances strongly indicating constructive notice (Trask v. Success Min. Co., 28 Idaho 483, 155 P. 288; 1 Am.Jur., sec. 140, p. 874; Downie v. City of Renton, 162 Wash. 181,298 P. 454; Grimmesey v. Kirtlan, 93 Cal. App. 658,270 P. 243; Pacific Gas Elec. Co. v. Crockett Land CattleCo., 70 Cal. App. 283, 233 P. 270; Silva v. Hawn, 10 Cal. App. 544, 102 P. 952), as well as evidence of an admission at a later date of a right of way across his lands.

It is next urged that after the spring of 1931 the use by respondent was with appellant's permission and not adverse. The record discloses that Will Hobson moved off the appellant's land in the spring of 1931 and that appellant then took actual possession. With reference to the period following the spring of 1931, the record is absolutely silent as to any permission or right to the use of the right of way having been given by appellant, or sought or requested by respondent, prior to 1934. The evidence is sharply in conflict with reference to the circumstances under which the road and bridge use was continued after 1934. Peavey, an agent of respondent, testified that he was first notified to stop using the road and bridge in the spring of 1936, at which time appellant strung wires across the road and posted notices. On the other hand, appellant testified that he notified Mr. Peavey to stop using the road and bridge in 1934 or 1935, and that the use of the road and bridge during 1935 was, with his permission, given to Mr. Peavey. The court found upon such conflicting evidence that:

"Blaylock until the spring of 1934, and the plaintiff (respondent) as his successor in interest since said time, continued in open, notorious, continuous, adverse anduninterrupted use of said right of way until the spring of 1936."

While the evidence is in conflict with relation to the use between the spring of 1931 and the spring of 1936, the court found, upon ample evidence, in respondent's favor. Among other cases in support of his position appellant cites Hall v.Blackman, 8 Idaho 272, 68 P. 19, and quotes from Hall v.Taylor, 57 Idaho 662, 67 P.2d 901, as follows:

"An adverse right is not originated by consent but rather against the will and without the consent of the true owner, and generally rests on an original trespass, which matures into a property right by reason of the true owner allowing the claimant or trespasser to continue the adverse use and possession uninterruptedly and with assertion of right until the statutory period has run, which bars the true owner from either asserting or defending his right to the property."

which proposition may be conceded to be correct. Appellant then in effect asks the court to presume, from a lack of evidence to the contrary that Blaylock's and respondent's use was originated in and continued by consent of appellant, or as a permissive use by him, and thus was not adverse. Appellant relies upon the propositions, quoting from his brief, that:

"Thus from 1928 to 1931 appellant had no knowledge of the use of the right of way by Blaylock."

and:

"There is practically no testimony as to the circumstances under which the right of way was used by Blaylock or to what extent from the spring of 1931 to 1934, and the only reasonableinference to be drawn from the record is that the same was used by Blaylock with appellant's permission."

The lack of knowledge on appellant's part, as heretofore related, is not supported by the record. Appellant's argument, as appears from the foregoing, is in effect that because of the lack of evidence pro or con, with relation to the 1928-1934 period, it is to be presumed that the use was permissive, which theory is contrary to the rule heretofore announced in Taylorv. O'Connell, 50 Idaho 259, 295 P. 247, and reiterated inBachman v. Reynolds Irr. Dist., 56 Idaho 507, 55 P.2d 1314, namely:

"The evidence is without conflict that the (roadway and bridge) were used by (respondent and its predecessor) uninterruptedly and continuously for more than the prescriptive period, which raised a presumption that such use was adverseand under a claim of right (19 C. J. 959); and there is no sufficient evidence of parol license to overcome this presumption." (Emphasis inserted.)

The rule appears to be applicable herein. As heretofore pointed out the evidence discloses without conflict that the roadway and bridge were used by respondent and his predecessor uninterruptedly and continuously from 1928 until 1934, more than the prescriptive period, and likewise the court found upon ample evidence, though conflicting, that the roadway and bridge were used by respondent and his predecessor uninterruptedly and continuously from 1928 until 1936, which raised a presumption that such use was adverse and under a claim of right.

The question possibly remains as to whether or not there was sufficient evidence of parol license or permissive use to overcome this presumption. It appears there are two possible periods, equal to or greater in length than the five-year statutory limitation period, which may be considered, that is, the period starting in 1928 and ending five or more years thereafter, and the period starting in the spring of 1931 and ending in the spring of 1936.

Considering first the period from the spring of 1931 to the spring of 1936, the evidence discloses that Will Hobson surrendered his contract to purchase the land and moved from the land of appellant in the spring of 1931 and appellant took actual possession. At this time the bridge and roadway were in existence and had been used for some years, and use thereof continued openly, notoriously and uninterruptedly until, as the court found and as the evidence discloses the spring of 1936, a period of five years, during which period appellant was in actual possession and enjoyment of the use of the land. During such period there was no permissive use or use under a parol license.

With relation to the period from 1928 to more than five years thereafter, the record conclusively shows that there was no permissive use on appellant's part, in fact Blaylock testified that appellant objected from the beginning and appellant testified, referring to a time he "supposed" was after his brother had moved off his land, as follows:

"Q. What was said between you and Mr. Blaylock about him acquiring a right of way or permission to construct a bridge and so on — did you reach an agreement on that?

"A. No, sir, there's never been nothing agreed on yet."

The only evidence of any sort of an agreement with relation to the use of the right of way is that agreement between Will Hobson and Blaylock, which agreement clearly does not appear to have been a permissive use as between Will Hobson and Blaylock but rather a parol agreement that Blaylock might have an easement immediately and that thereafter he would pay the price fixed by Will Hobson and satisfy any claims there might be because of the well in the road. It appears that no claims with reference to the well ever arose which could be settled and no price was ever set or fixed by Will Hobson which could be paid. In so far as Blaylock was concerned the purported contract or agreement with Will Hobson was fully executed in so far as it could be. It does not appear necessary to determine whether the agreement between Will Hobson and Blaylock clothed appellant with any benefits or rights or whether it was binding upon him in any way, as it appears that such agreement did not constitute either consent, license, neighborly accommodation or permissive use on the part of either appellant or Will Hobson. The record also discloses that possibly as early as 1928 appellant was aware of such agreement, which by its very nature was adverse to appellant's rights, but appellant did nothing with reference thereto or with reference to the use of the right of way until after the limitation period had run. (Kelly v. Palmer, 91 Minn. 133,97 N.W. 578.) Blaylock testified:

"Q. Later on did you carry out that agreement with him? (Will Hobson.)

"A. Well, I did until he left and Hobson (appellant) took possession again, and he objected to it — he did when Istarted — and he wouldn't give the deed for the easement."

The record discloses that Blaylock started but once, in 1928, which leaves but one interpretation to be placed upon such testimony, namely that appellant objected to the agreement between Will Hobson and Blaylock in 1928. It appears that the agreement between Will Hobson and Blaylock is of no particular moment and has no effect upon the question of adverse use, inasmuch as the agreement did not amount to a permissive use, further that there was some evidence of appellant's actual knowledge of the adverse character of the claim of respondent's predecessor as early as 1928, and it appears that from the spring of 1931, at which time appellant went into actual possession of the land, and as the court in effect found, permitted the statutory period to run before notifying respondent's agent to cease using the right of way.

Appellant urges that the court erred in failing to find that he is the owner of the bridge and in failing to enter judgment quieting title thereto in appellant. No authority is cited and the brief of appellant contains no argument with relation to the efficacy of the purported bill of sale. It is to be borne in mind that the court found upon ample evidence that the right of way, consisting of the road and the bridge became appurtenances to the lands of respondent. We find no authority sustaining the proposition that title to appurtenances to real property may be conveyed by means of a bill of sale when the same is a part of realty subject to a mortgage. The entire effect of the bill of sale amounted to no more, if anything, than a recognition on the part of appellant of the existence of a right of way across his lands, and conveyed no title in such right of way.

The judgment of the trial court is equitable and just. A portion of the road lies north of the canal and is upon appellant's land. The bridge, without which the road is valueless, is upon the land of appellant at its northerly end and upon the land of respondent at its southerly end, and the road and bridge is used by appellant to reach certain lands of appellant which lie on the south side of the canal as well as lands of respondent lying on the south side of the canal. The judgment gives respondent an easement in that part of the road and bridge to the north of the canal and on and across appellant's land, and gives appellant an easement, jointly with respondent in that part of the right of way, the bridge and road to the south of the canal which is on and across respondent's land.

The judgment is affirmed. Costs awarded to respondent.

Holden, C.J., and Ailshie, J., concur in the conclusion.