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Howard v. Wright

December 31, 1914


Appeal from the Second Judicial District Court, Washoe County; John S. Orr, Judge.

Mack, Green, Brown & Heer, for Appellants.

W. A. Massey, for Respondents.

By the Court, McCarran, J.:

This is an appeal from a judgment and decree of the district court of the Second judicial district, by which judgment and decree a right of way across the property of the plaintiff Howard was declared in favor of the defendant John Wright; the right of way being described as a strip of ground theretofore traveled by the defendants and others, commencing at the first gate south of the corral of respondent to the plaintiff Howard's ranch upon the east side of that certain highway leading from Reno, Nevada, to Carson City, Nevada, and extending easterly from said gate to and across the lands of plaintiff, Mrs. M. J. Howard, to that certain gate in the partition fence between the lands of Howard and Wright, which gate is situated near the barn of said defendant John Wright, said right of way being twenty feet in width and as theretofore traveled by the said defendants and others. In addition to this a perpetual injunction was issued against the plaintiff Howard whereby the plaintiff was

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enjoined from closing up, obstructing, or in any way interfering with the right of way described, so as to prevent a free and undisturbed use of the same by the defendant Wright.

The decree rendered by the trial court in this case grew out of an action wherein the plaintiff Howard and her lessee sought to secure a perpetual injunction against the defendant Wright, restraining the defendant from trespass or entry upon the lands of plaintiff. A temporary injunction was granted plaintiff upon the filing of her complaint. Together with the injunctive relief, plaintiff sought to recover damages against the defendant in the sum of $300 for trespass alleged to have been committed by the defendant Wright and his servants upon the premises of plaintiff. The premises on which the trespass is alleged to have been committed is a field owned by the plaintiff Howard, bounded on the west by the Virginia road, a public highway leading from the city of Reno to Virginia City, and bounded on the east by a fence which separates the field from the premises and property of the respondents Wright. It is the contention of respondents that a right of way through and across the field has been acquired by them by prescription, inasmuch as they have for many years past and in fact, as the record discloses, since the date of respondent's first occupancy of their premises, to wit, on or about 1863, passed across and over the field in question without asking for or receiving permission from the owners of the field.

It is not the contention of the respondents that this is the only avenue by which they can gain access to their premises. In fact, the record shows that another road exists which is the usually traveled road, but which makes the distance somewhat longer in going to or coming from the city of Reno. It is disclosed by the record that the appellant Howard purchased the premises in question from Gregory and Dresler, and that she, together with her husband, took up occupancy on the place April 10, 1867, and in her testimony, given at the trial, she nowhere

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denies that the respondent Wright and his family, as well as others who had business at the Wright ranch, passed across her field in an easterly and westerly direction, first entering the field at the gate immediately in front of her house, passing across the field to the gate in the vicinity of the Wright residence. She nowhere contends that permission was ever asked by the respondent or any of his family to pass through the original gate and across this field, nor does she contend, in her testimony, that she ever questioned the right of respondents to pass across the premises. It appears from the record that the way in question was one marked by several bridges crossing artificial and natural waterways, running through the fields. It appears that there was no well-defined track or road, other than that which was marked by these bridges, and at one place in the field some work had been done in the way of grading. This work was done by the respondents Wright or those under them. The testimony of the respondent Wright, as well as that of his son, discloses that in the year 1890 he asked for and obtained permission from appellant to change the position of the gate entering into the field from the Virginia road. This fact is also testified to by the appellant. Pursuant to permission thus granted, the entrance formerly used by the Wrights on the occasions when they crossed the field was abandoned by them, and a gate was put in by respondent at a point about fifteen rods further south. This gate was used as a place of entrance by the respondent and the members of his family from the year 1890 up to a short time before the commencement of this case, at which latter date the respondents' lessee fastened the gate with a chain and locked the same. From the record it is disclosed that many others, in addition to the respondent and his family, entered the Howard field and crossed the same, some going to the Wright ranch and others to adjoining ranches, and still others to the mountain ranges lying to the eastward.

One principal question is presented for determination in this case, viz, Was the right to cross the Howard field

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originally obtained by permission, either implied or expressed? In considering this question in connection with the facts presented a secondary question is involved. If the right to cross the Howard field was not originally acquired by permission, either expressed or implied, was it acquired adversely to the appellants or their predecessors in interest? The first question is one depending upon the facts presented; the second depends largely upon the acts and conduct of the respondents.

[1] At the outset it must be observed that it is a rule of law almost universally recognized that a permissive use to the premises of another for any length of time confers no rights to continued enjoyment. The owner may prohibit the use or may discontinue it altogether at his pleasure as long as it is merely permissive. (Roe v. Walsh, 76 Wash. 148, 135 Pac. 1031, 136 Pac. 1146; Nellis v. Countryman, 138 N. Y. Supp. 246; Really v. Really, 245 Mo. 417, 151 S. W. 415; 14 Cyc. 1151.)

[2] If the right is one adverse to the owner of the servient estate, then it must appear that the elements requisite to make out an adverse user are present. These elements are: First—The possession must be by actual occupation open and notorious, not clandestine. Second—It must be hostile to the title of the owner of the servient estate. Third—It must be held under a claim of title, exclusive of any other right as one's own. Fourth—It must be continuous and uninterrupted for a period of five years prior to the commencement of the action. (Anthony v. Kennard Bldg. Co., 188 Mo. 704, 87 S. W. 921.)

In order to perfect an easement by occupancy for five years, the enjoyment must be adverse, continuous, open, and peaceable.

Nothing less than an adverse user, under claim of legal right, will perfect an easement by occupancy for the statutory time. A use acquired merely by consent, permission, or indulgence of the owner of the servient estate can never ripen into a prescriptive right, unless the user of the dominant estate expressly abandons and

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denies his right under license or permission, and openly declares his right to be adverse to the owner of the servient estate. (Hurt v. Adams, 86 Mo. App. 73.) In the latter case, his adverse right must be openly declared and continuously pursued for the period prescribed by the statute in which a prescriptive right may be acquired. (Cobb v. Davenport, 32 N. J. Law, 369; Swango v. Greene, 155 Ky. 227, 159 S. W. 692.)

The rule that precludes a permissive use from ripening into a right to continued enjoyment, where the permission, consent, or license is expressly given is no less effective where the permission or license may be implied. (Thomas v. England, 71 Cal. 456, 12 Pac. 491.)

[3] The facts as presented by the evidence in this case disclose two significant incidents when viewed in the light of the foregoing observations as to the law. The one is the user by the respondents of the original gate at the west terminus of the claimed way. The other, the user of the gate at the west terminus after the change made by request of respondents in 1890.

It is admitted by all parties in the record, familiar with the past history of the Howard field, that the premises were originally taken up and at least partially fenced by Gregory and Dresler, on or about the year 1862. The farm house constructed by Gregory and Dresler was in approximately the same position as that now occupied by the appellants, being on the west side of the Virginia road and opposite to the field over which the right of way is claimed. East of the Howard field was a tract of land located by the respondent Wright, and other tracts in the same vicinity were taken up by Clow, Smith, Savage, and ...

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