Humphreys v. Blasingame

Haynes, C. Plaintiff is the owner of about five acres of land upon which he resides, and is also the owner of one hundred and sixty acres separated from the residence parcel by intervening lands of the defendant, over which the plaintiff claims a right of way between his two parcels. The defendant having denied the plaintiff’s right and closed up the way, this action is brought to establish plaintiff’s right, and to recover damages, and for an injunction. The cause was tried [41]by the court without a jury, and the plaintiff had findings and judgment, and the defendant appeals from the judgment and an order denying a new trial.

The court found that plaintiff had been for thirteen years and more the owner of the parcel mentioned, and that defendant for a period of eight years had been the owner of said intervening land. The fourth finding is as follows:

“ That for the period of thirteen years and upwards plaintiff and his grantors have under claim of right continuously and adversely to all the world and uninterruptedly held, had, and used said right of way, and a certain roadway along the right of way above described, for travel by wagon and team and of sufficient and ample width for such purpose.”

Other findings describe the way by courses and distances, that plaintiff is the owner of it, the interruption of the use by defendant, that plaintiff has sustained damage in the sum of five dollars, and that the acts of defendant prevent the use of plaintiff’s larger tract.

The findings are attached upon the ground that they are not justified by the evidence.

Plaintiff had occupied his five-acre lot for seventeen years, and became the owner of the one hundred and sixty acre tract about four years later, and. used the way in controversy during all the time since becoming the owner of the latter tract. The one hundred and sixty acre tract was patented by the United States to William Lowery in 1876, and from that time, if not before, the way in question was used by its owner. Defendant’s land was acquired from the government by one Pitman, who afterwards sold and conveyed to E. T. Lowery, the brother of William, and this way was used during the ownership of Pitman and Lowery, and when defendant became the owner.

Appellant insists that plaintiff used the way without any claim of right, and was permitted to do so by the defendant as a matter of neighborly accommodation, and that the way was one used by the defendant and