Eddy v. Demichelis

KOFORD, P. J.

Plaintiff by this action sought damages and an injunction based upon his claim of an easement upon the land of the defendant, an adjoining land owner. The easement claimed was the right to use as a turn row an open strip of land or avenue, which had been left unplanted to trees or vines, upon and along the boundary line between the lands of the two parties to this action. A turn row is understood by the parties as a place used, while cultivating the land, for the purpose of turning teams and tractors drawing cultivating machinery. Plaintiff is the owner of lots Nos. 30 and 31. Defendant is the owner of lot No. 32. The turn row is between lots Nos; 31 and 32. Plaintiff claimed the easement by adverse user and prescription. The court gave judgment for the defendant and the plaintiff appeals.

Substantially the only point argued at the trial and upon this appeal is the sufficiency of the plaintiff’s evidence to show that his use and possession of the strip of land for the purpose of a turn row was adverse, as contended by plaintiff and appellant, or merely permissive, as contended by defendant and respondent. No point is made as to the sufficiency of the complaint to present this issue, either at the trial or on this appeal, and accordingly we will treat it in the same manner.

Practically all the evidence at the trial came from the witnesses called by the plaintiff. Appellant indicates certain testimony introduced by him which is uncontradicted and which he claims entitled him to a decision that he was

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the owner of the claimed easement hy adverse possession. The plaintiff testified that in 1903 he purchased lot No. 31 from Shepherd-Teague & Company, who was then the owner of lots Nos. 30, 31, 32, and other lots. In 1906, plaintiff, a resident of Chicago, Illinois, was visited by Teague, of Shepherd-Teague & Company, and was persuaded to purchase an additional lot, No. 30. In their conversation plaintiff testified that he inquired about the expense of building fences, and Teague said, “ ‘You don’t need any fences.’ I asked him what about the straying of the cattle, wouldn’t they destroy things, and I asked him about that, and he said, ‘No, it is not necessary, because, out there, if they come on your property and do any damage, the owner has to pay for the damage they do.’ So, in that way he persuaded me not to put up any fences. ‘But,’ he said, ‘there is an avenue around the lot, and,’ he said, ‘I own all the land, and you have access to come across the land and turn on the property adjoining your field, to turn back again in the avenue in the opposite direction, and the party on the other property adjoining has the same right to go on your land and turn around to go back there, and,’ he said, ‘that avenue is private property of both parties to use that way, and the party on the other property has always the privilege to come across on your land for the purpose of turning around and going back, in working the field there, and you have the same privilege, that is what it is for, and, ’ he said, ‘it has been used that way in the neighborhood of twenty years. ’ ’ ’