Griffiths v. Archibald

272 P.2d 586, 2 Utah 2d 293, 1954 Utah LEXIS 194

• Court: Utah Supreme Court
• Decided: July 22, 1954
• Docket: No. 8135
• Status: Published

Opinions

HENRIOD, Justice.

Appeal from a no cause of action judgment where plaintiff, Maybell Griffiths, claimed a prescriptive easement in a ditch which crossed the land of defendant, Ar-chulious Archibald. Affirmed, costs to defendants.

Maybell and Archulious are sisters who, with their respective husbands, have resided on adjoining lots for about a quarter century. For more than 20 years, during irrigation seasons, plaintiff has watered her garden from a ditch running across her sister’s lot, and such use has been open, visible, notorious, continuous, uninterrupted and exclusive, ¹ all of which defendant knew and which the jury, under special interrogatories and instructions, found to be, true; Plaintiff insisted that she claimed by night and adversely. The jury found such usage became “hostile” only in 1952, during which year two significant and disturbing circumstances arose to plague the sororal serenity. Maybell and Archulious disagreed over entitlement of certain assets left by their departed mother, which created an atmosphere hostile in the Websterian sense,² and ended flight of the dove of peace between the two domains. The spouse of Archulious unceremoniously filled the ditch, which ended the flow of water and created an atmosphere, not only hostile in the Websterian sense, but also in the strict legal sense where matters of prescription are being considered.³

It is urged that the court confused the jury with a special interrogatory and the explanation incident thereto. The jury was asked if plaintiff’s possession had been “hostile” or “friendly,” which was answered as being friendly until 1952 when it became the former. Plaintiff asserts that the jury must have thought that the word “hostile” connoted “ill will” or “malevolence” toward defendant, and that such ill will must have persisted throughout the prescriptive period to create any rights. We cannot agree with such contention. The trial court’s first words of explanation were that “By the word ‘hostile’ as used in this case is meant that one in possession of a ditchway claims the exclusive right thereto and a denial of the owner’s right to possession.” (Italics supplied.) He further advised that a mere neighborly or sisterly accommodation would not permit plaintiff to succeed, and that if the jury found that defendant permitted the use of the ditch as such accommodation, it could not find an adverse user. Nowhere did the court instruct that the word “hostile” required a feeling of hatred or ill will.

The jury well may have found a use by permission under the facts of the case and the instruction given. The evidence is uncontroverted that defendant’s husband stopped the flow of water in 1952 and plaintiff thereafter reopened the ditch, which circumstance, the jury' may have concluded, represented the first hostile or adverse conduct, in the legal sense, (as explained by the court) that Maybell had evinced toward Archulious and the latter’s property. Particularly the jury could have so found in the light of common experience which indicates that ordinarily, before a parting of the ways, use by one close relative of the property of another but rarely is indulged with intent ultimately to appropriate the latter’s property by means of technicalities incident to acquisiton of rights by prescription.

McDonough, c. j., and ellett, District Judge, concur. WOLFE, C. J., being disqualified, did not participate in the hearing of this cause.

1 . Thompson, Real Property, Perm.Ed., Vol. 1, Sec. 414 et seq.

2 . Webster’s New International Dictionary (2nd), Merriam Co.

3 . 1 Am.Jur. 870, Sec. 136 et seq.