Bertolina v. Frates

After some doubt, I am compelled to concur in the results of the court's opinion. A close examination of the record as it stands and the law of the case rather convinces me that the defendants Frates and Lyman-Callister Company under the proper pleadings could have shown a right of way by implied grant, but not by prescription. All of the property on the south side of the lane on the diagram between Fifteenth East street and Highland drive was from 1875 up to February 13, 1896, owned by Arraminta North and her father in reverse order named. The plaintiffs' lot on the west end of the lane and the lots of the two defendants above named are all carved out of this original tract. During such time no prescriptive rights could have been initiated by the predecessors of those defendants because Arraminta North and her father, although predecessors of both plaintiffs and defendants, could not initiate for future grantees a prescriptive right in their own land. Therefore, before February 13, 1896, when Mrs. North conveyed the portion now owned by the plaintiffs, there was no right initiated and the process of tacking could not have started in favor of these two defendants on plaintiffs' lot. From January 7, 1909, to June 28, 1919, Hyrum K. North owned both the lot now owned by plaintiffs and the lots now owned by the two above-named defendants. During this period there could have been no tacking and no prescriptive rights in favor of the Frates and Lyman-Callister lots against the plaintiffs' lot. Between February 13, 1896, and January 7, 1909, a period of nearly thirteen years, there could have been running in favor of the two lots and against the plaintiffs' lot time wherein a prescriptive right to an easement might have been maturing. And from June 28, 1919, to September 30, 1932 (the date when the answer was filed), a period of more than thirteen years, when the lots were in the hands of different owners, prescriptive rights could again have been initiated and maturing in favor of these defendants against the plaintiffs and their predecessors in interest. But neither period was twenty years long and the common ownership of Hyrum K. North broke the continuity of the total period. See 19 C.J. 894, 895, § 68. This eliminates the possibility of private right by prescription as appurtenant to land. As no right in gross is claimed for any of the defendants, that is also eliminated from consideration. A right in the defendants as constituents of the public is claimed, but neither the pleadings nor the proof uphold that. The pleadings will be considered in a moment.

As to the proof, there was evidence that neighbors and abutting owners, servitors and guests, used the lane, but no such evidence from which it could be said that there was such a use by the public generally as to imply a dedication. The fact that the county hauled gravel on the lane and deposited it two years before the suit would be some evidence, but without the assistance of a continued user by the public generally for ten years there could be no implied dedication or abandonment. Because property owners permit neighbors and visitors to cross their property, even over a number of years, is no indication of an intent to dedicate or abandon such traversed strip to the public. It is well at this point to note that a number of apparently reliable witnesses familiar with the strip in question for many years testified to the fact that the portion of the so-called lane north of what is now the Bertolina place was for a long time occupied partly by a slough, and that the willow trees grew out from a ditch on the north side so thick that one was compelled to divert to the south in order to get around them. There was also evidence that Hyrum K. North cultivated as far up to the willows and the north line of his property as possible. These witnesses stated they remembered as children that there was going through there the nearest trail which people used sometimes as a walk to get to Fifteenth East and that it was used by school children going to and from school; that it would be impossible for wagons to get through without bogging during certain times of the year; and that the weeds and willows were an impediment. There was testimony as to a wire fence having been across there at one time. These witnesses were almost unanimous to the effect that there was no well-defined roadway through there until Frank Frates built a house on what is now the Albert Frates tract six or seven years before this suit. True, there was contrary evidence sufficient, if the period had not been interrupted, to support a finding of continued adverse, private use, but not of a use by the public generally. In the case ofSchettler v. Lynch, 23 Utah 305, 64 P. 955, there was evidence of a use of the twelve-foot strip by the public, a fence erected by the owner of the abutting property setting off the strip, and the building of homes in recognition of it, all of which the owner knew about and his own designation of it as a street by placing a sign thereon. Such conduct manifested the necessary animus dedicandi; at least, worked an estoppel against him. In the case of Culmer v. Salt Lake City, 27 Utah 252,75 P. 620, 622, the court said:

"The evidence is undisputed that the use of the alley has been practically confined to parties who owned or occupied property within that portion of block 70 of Salt Lake City Survey which lies west of Commercial street, and through which the alley passes. * * * And while others owning property in that neighborhood may have used the alley under circumstances and to such an extent as to create an easement therein, which, however, is a question not involved herein, and not necessary for us to decide, yet it is plain that the limited uses made of thealleyway, when considered in connection with the conduct and actsof plaintiffs in relation thereto, were not such as would warrantor justify a belief that they intended to throw it open as apublic highway." (Italics supplied.)

The italicized portion seems to be quite applicable to the case at bar. See, also, Morris v. Blunt, 49 Utah 243,161 P. 1127. Moreover, the answer does not raise the issue of a right of the defendants as part of the public to use this lane. Nor does it raise the issue of a way by necessity or by implied grant. The answer of Walker Bros., Bankers (to be considered as an answer of Lester North, since Walker Bros. disclaimed except as his guardian and was so treated in the suit), simply set up that the "real estate described in the plaintiffs' complaint is subject to an existing and established right of way over the northerly one rod thereof, which said right of way has been usedopenly and peaceably under claim of right adversely to theplaintiffs for a period in excess of twenty years prior to theinstitution of plaintiff's suit herein." (Italics supplied.) If we consider the italicized portion merely descriptive of the nature and extent and period which the alleged established right of way was used and not as a limitation on the manner in which it was acquired, to wit, by prescription, and therefore surplusage, and we further consider the remaining unitalicized portion as a sufficient allegation of the nature of the right or estate claimed in the one rod which, in the absence of a motion to make more definite would withstand a general demurrer (a doubtful assumption in view of Larsen v. Onesite, 21 Utah 38,59 P. 234), we have a pleading as far as Lester North is concerned under which a way of necessity or a grant by implication or a right as one of the public could be shown. But a glance at the plat set out in the court's opinion shows that the North property abuts on Highland drive, so he cannot claim a way by necessity. His tract was not part of the land owned by Arraminta North, so he cannot claim that in her division there was a way implied as might the few lots on the south side of the lane, and, as stated before, the evidence does not sustain a finding that the way was dedicated to and accepted by the public. As to his gaining a right by prescription the evidence does not sustain a finding that he or his predecessors used it for twenty years or more. The evidence merely is that Lester North used the north strip of what is now the Bertolina property. For what purposes, in what manner, whether by foot, horseback, or vehicle, or how long or how frequently, does not appear. He might have used it just once under the evidence.

When the pleadings of the defendants Frates and Lyman-Callister Company are taken into account, we have a very much more definite limitation as to the manner in which that right was denied. The answers of both these defendants set out in the denial part what has been above quoted from Lester North's answer, and then in their "further and affirmative defense" state:

"That said right of way over the northerly one rod of the property described in the plaintiffs' complaint has been used by these defendants and by numerous other owners having propertyabutting thereon for a period in excess of twenty years prior hereto, and that said right of way by virtue of said user has become a legally established right of way." (Italics supplied).

By this allegation these defendants definitely limited themselves to a right not as members of the public, but as abutting owners, and, further, to a right arising by prescription rather than arising by necessity or by implied grant. Because I believe that the deeds given by Arraminta North, each containing the provision that the deeded land was "subject to a permanent right of way for a farm road across the north side" together with the situation of these five lots in respect to each other, may make a basis for an implied grant of an easement running with each of these lots which was not extinguished, even as to three of those lots, by their unity of title in Hyrum K. North, I have carefully considered the pleadings. I cannot conclude differently than is concluded by the court's opinion that the pleadings are not sufficient to permit evidence or a finding of implied grant of a way by necessity or public right of way. I can readily see that if Bertolina can close up the west end of the lane, by the same token Williams at the east end may be able to close up that portion and thus bottle up Albert Frates, Lyman-Callister Company, and Melinda Butterworth. In fact, any two of these five owners on both sides of a third owner can bottle up such third owner if there is no way by necessity or grant by implication of the lane. Certainly, Arraminta North attempted to guard against this very situation, and when she divided up her land into five lots among her children, she by those deeds created a right of way in favor of all over the north end of the lot of each. This easement ran with the land whether subsequent deeds contained the provision or not. Yet, I cannot see how under the pleadings it can be shown. The defendants may be comforted by the fact that in subsequent suits this attempt to cut off their right of way to the east may be guarded against. As stated before, defendants have had no continuous period of adverse user for twenty years, even though we give them the benefit, as against quite definite and seemingly reliable conflicting evidence, of the finding implied by the lower court in its findings of fact that they and their predecessors actually used the one rod north strip of Bertolina's land for many years, in the aggregate more than twenty.

For the above reasons, I concur in the court's opinion.

MOFFAT, J., being disqualified, did not participate herein.