Rosebrook v. Utz

SPENCE, J.

Plaintiffs sought to quiet title to a right of way over the land of defendant and also sought an injunction to‘restrain the defendant from interfering with plaintiffs’ use and enjoyment of said right of way. A judgment was entered in favor of plaintiffs on October 28, 1937. Thereafter defendant made a motion for a new trial, which motion was granted upon the sole issue of the description of the right of way and was denied upon all other issues, the trial court including in its order an order that the judgment previously rendered be vacated and set aside. A trial was thereafter had solely upon the issue of the description of the right of way. Following said trial, the trial court signed new findings of fact and conclusions of law and a new judgment was entered in favor of plaintiffs on March 19, 1938. Defendant filed a notice of appeal from the judgment of October 28, 1937, and also filed a notice of appeal from the judgment of March 19, 1938.

The contention of defendant on this appeal is that the evidence was insufficient to sustain a judgment in favor of plaintiffs, it being claimed that there was no evidence to show an easement by grant, or to show an implied easement or

quasi

easement, or to show an easement by prescription. We shall therefore briefly summarize the evidence in so far as it may be pertinent to this discussion.

Plaintiffs are owners of a seven-acre parcel of land which adjoins a six-acre parcel owned by defendant. Since the year 1915, there has been a graveled road leading across the six-acre parcel which has been continuously used by the owners of the seven-acre parcel and the tenants of said owners as a means of ingress and egress between said seven-acre parcel and a public highway known as Kelly Avenue. The trial court found that the use thereof was open, notorious, peaceable and under claim of right, communicated and known to defendant and her predecessors in interest. The trial court further found that the alleged easement was an ‘1 open, visible and obviously apparent easement or right of way” during all of said time. The six-acre tract was conveyed to defend

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ant in 1927 and, in 1936, defendant barricaded the right of way and put up signs indicating that anyone using the same would be shot. Plaintiffs then commenced this action.