Stickney v. Nemir

BROWN (Gerald), J.

This is a dispute between adjoining landowners. For convenience J. K. Stickney, Jr., plaintiff, cross-defendant and appellant will be called plaintiff. His wife, Elizabeth Lee Stickney, cross-defendant, has not appealed. Defendants, cross-complainants and respondents, Joseph Nemir and Marjorie Nemir, will be referred to as defendants. The case involves a triangular piece of property at the northwest corner of plaintiff’s land over which defendants claimed prescriptive easement rights of travel which plaintiff sought to block by erecting a fence. This created a square corner rather than a rounded corner which prevented the passage and turning of long vehicles and trailers.

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Plaintiff’s complaint alleged ownership in certain property in which defendants claimed an interest that they did not have; furthermore, that defendants threatened to tear down a fence which plaintiff had recently erected on the triangular piece of property, which, if done would cause plaintiff irreparable damage. Plaintiff’s prayer sought to quiet title to the property, and to enjoin defendants from any adverse action respecting the fence.

Defendants’ answer admitted that plaintiff was the owner of the property, but claimed that for more than five years it had been subject to a roadway easement favoring defendants as to: (1) 25 feet on the north side, (2) 20 feet on the west side, and (3) the triangular piece, the legal description for which was set forth. It was alleged, however, that

“the only portion of the easement over the aforesaid Stickney lands for roadway purposes which is immediately pertinent to the instant action” is that concerning the triangular piece.

Defendants then claimed that they possessed this easement over the roadway, including the triangle which had been fenced off by plaintiff, by prescriptive right acquired over a period of 50 years or more. Defendants also claimed that they were entitled by way of necessity to the continuing use of the roadway.

By cross-complaint defendants alleged irreparable damage caused by plaintiff’s fencing off the triangle. They sought removal of the fence, and damages which resulted because the fence prevented house trailers from negotiating the turn.

Plaintiff answered the cross-complaint stating that the 25-foot easement on the north was not plaintiff’s property, hut was on the land of the owner to the north. Plaintiff claimed to have given a 20-foot road easement on the west side of his property connecting with the 25-foot easement on the north, by deed, to defendants’ predecessor in interest under which the grantees had agreed to keep the roadway in a good state of repair at no expense to the grantor and to maintain liability and property damage insurance in sums satisfactory to the grantor. Plaintiff then claimed that the road had been kept in a poor state of repair, and that no insurance was provided, for which breaches the easement should be can-celled. Plaintiff denied that there was a triangular sized easement, and alleged that defendants’ sole right to use the plaintiff’s land for road purposes was limited and confined to “the 20 foot easement on the westerly” side of plaintiff’s property. By way of amendment to the original complaint filed at the time of the pretrial conference, plaintiff set out