Wood v. Brown Inc.

702 P.2d 777, 108 Idaho 739, 1985 Ida. LEXIS 480
CourtIdaho Supreme Court
DecidedMay 7, 1985
Docket15556
StatusPublished
Cited by7 cases

This text of 702 P.2d 777 (Wood v. Brown Inc.) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wood v. Brown Inc., 702 P.2d 777, 108 Idaho 739, 1985 Ida. LEXIS 480 (Idaho 1985).

Opinions

SHEPARD, Justice.

This is an appeal from a judgment wherein the district court decreed a prescriptive easement over the property of defendants-appellants Brown for the use of certain parcels of land owned by plaintiffs-respondents Wood. We affirm.

Plaintiffs Wood own and farm tracts of land of differing acreages and shape in what has been, until recently, a somewhat remote area lying in bench lands east of Rexburg, Idaho. In that area a creek has formed a substantial canyon, and access to some of the Woods’ property is somewhat difficult because of the precipitous sides of the canyon. Historically, access to the Woods’ lands has been by means of a road traversing the Browns’ lands, which lands lie generally north of the Woods’ parcels and within a more narrow portion of the canyon. Ultimately that road joins with a public road.

The Woods’ parcels of property are varied in their histories, some having passed down through the Wood family, and some having been purchased from persons outside the family, and some having been purchased from the State of Idaho at various times.1

There appears no question but that the road traversing the Brown property (Brown Road) has been used as access for what are now the Wood properties for different purposes at different times. The dispute between the parties was whether a prescriptive easement over the Brown Road had been acquired for the benefit of each of the 12 properties of the Woods’; [741]*741i.e., whether the Woods’ use of the Brown Road was founded in prescription or was by permission, for what period of time the road had been used by the Wood family, and the degree and purposes for which the Woods and their predecessors in title had used the road.

The Woods brought the instant action, seeking the declaration of an easement by prescription over the Brown land for the benefit of all 12 of the parcels of land owned by the Woods. Following trial, the court held that the Woods had established the existence of a prescriptive easement over the Brown lands. However, the court held further that an easement by prescription had been established benefiting only eight of Woods’ parcels. As to the remaining four of the Woods’ parcels, the court found that the Woods had failed to establish a prescriptive easement. The trial court further held and ordered that the Browns should, with the cooperation of the Woods, establish regulations within certain court-designed guidelines for the quantity and type of usage of the road by the Woods. The Browns appeal from the judgment and orders of the district court. The Woods have not cross-appealed.

In approximately 1900, Henry Wood (grandfather of plaintiffs) homesteaded certain lands in Madison County, which lands came down through his family to the eventual ownership of plaintiffs Wood herein. Henry Wood also farmed certain other lands adjacent to his homestead, which other lands he leased from the State of Idaho. Following Henry Wood’s death, his wife purchased that formerly leased property. The testimony appears clear that Henry Wood and his descendants commonly utilized the Brown Road for access to the Wood property. It is not substantially disputed that the Woods used the Brown Road, but rather the Browns dispute the type and frequency of such use and contend that the use was founded in permission.

There is substantial testimonial evidence, albeit controverted, that the Woods’ usage of the Brown Road was founded and continued in prescription rather than in permission, and that the existence of the Brown Road and the usage of that road by the Woods’ predecessors predated the acquisition of the land by the Browns’ predecessors in interest. The evidence further supports the finding of the trial court that the Woods and their predecessors in interest have used the road since 1937 openly, notoriously, continuously, without interruption, under a claim of right, with the actual or constructive knowledge of the Browns and their predecessors in interest, thus satisfying the required prescriptive period of five years. Since those findings of the trial court are supported by substantial, albeit conflicting, evidence, they will not be disturbed on appeal.

Defendants-appellants Brown assert that the trial court erred in considering as a portion of the requisite five-year prescriptive period the time during which the Woods’ predecessors in interest leased those particular parcels of land from the State, prior to their purchasing them. We disagree with this assertion. We hold that the trial court was correct in its ruling that the use of the lessee can be tacked to that of the landlord for purposes of establishing adverse possession. Put another way, the occupation of the leased premises by the lessee is constructively that of the landlord. As stated by Powell in his treatise on real property:

“Successive periods of adverse, continuous and uninterrupted use may be added together to make up the required period of prescription, if there has been privity between the users. The requisite privity exists when the later user has succeeded to the interest of the earlier user by inter vivos conveyance, by descent, by devise, or by such an involuntary conveyance as occurs on execution sale or on bankruptcy. The requisite privity also exists when the successive uses are all made under a common title, as for example, by a tenant and his landlord, or by a life tenant and the remainderman, whose interests were created by one conveyance. Since the periods to be tacked [742]*742must all be adverse, continuous, and uninterrupted, a period during which the dominant and servient parcels were under the same ownership cannot be included. Nor may there be any period during which the use was permissive. There is some authority that where a later user seeks the benefit of his grantor’s (or devisor’s) earlier use, he must show that this benefit was intended to pass to him. The better view is that the succession in possession of the claiming dominant tenement suffices, without more.”
3 Powell on Real Property, para. 413, pp. 34-133-34-134 (1984).

Accord Restatement of Property § 464 (1944); Burby on Real Property § 111, pp. 274-275 (3d ed. 1965); First Nat. Bank of Marshall v. Beavers, 602 S.W.2d 327 (Tex. Civ.App.1980); Brown v. Redfern, 541 S.W.2d 725 (Mo.App.1976); Swygert v. Roberts, 136 Ga.App. 700, 222 S.E.2d 75 (1975). See also, Berg v. Fairman, 107 Idaho 441, 445, 690 P.2d 896, 901 (1984) (Huntley, J., dissenting).

The Browns next assert that the trial court erred when it held that the Browns, as the owners of the servient estate, should make reasonable regulations concerning the Woods’ use of the easement over the Brown Road, and specifically as to “the size of trucks, speed, minimizing of dust, and maintenance.” The trial court stated:

“No evidence has been presented from which this court can make regulations for the parties. The court, therefore, expects the parties to reach agreement concerning the reasonable regulations to be imposed. The plaintiffs have an express obligation to avoid changes in the use of the prescriptive easement so that an unreasonably increased burden will not be placed on the servient estate.

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Wood v. Brown Inc.
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Cite This Page — Counsel Stack

Bluebook (online)
702 P.2d 777, 108 Idaho 739, 1985 Ida. LEXIS 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-brown-inc-idaho-1985.