Brown v. Voight

BARNARD, P. J. This is an action to compel the defendant to remove certain installations used in connection with her motel property at Olancha.

In 1938, one J. F. Saner acquired title to 30 acres of land in the Southwest Quarter of the Northwest Quarter of Section 18-19-37, M. D. B. & M. This land is some 300 feet westerly from Highway 395 and for many years a road has run from that land to the highway, crossing lands owned by [570]the plaintiffs. This road, herein called the motel road, had never been dedicated or accepted as a eonnty road but has long been used for entry to this land and by the general public.

After he acquired this land, Saner built and operated a motel thereon, and made certain installations for the purpose of advertising his business. He installed three concrete pillars marking a fan-shaped entrance from Highway 395 to the motel road, and installed a large sign on Brown’s land at the south side of this entrance, and another sign on Lacey’s land some half mile north of that entrance. He erected a line of poles to carry electric wires from his motel for the purpose of lighting the sign and pillars at this entrance. In June, 1946, Saner sold the 30 acres and motel to the defendant, the deed describing the land by government description. He gave the defendant a bill of sale covering a long list of furniture and fixtures going with the motel, but nothing was said in the deed or bill of sale about the motel road or the installations here in question.

The complaint in this action, filed on October 25, 1948, alleged, so far as material here, that Saner had erected the signs, pillars and pole line on the plaintiffs’ properties with their permission; that he had sold the motel land and business to the defendant; that she had been requested to remove the signs, pillars and pole line from their respective properties; and that she had refused to do so claiming a right or easement by prescription to maintain and use them permanently. An injunction was asked ordering the defendant to remove the signs, pillars and poles from the respective lands of the plaintiffs. The defendant answered admitting that Saner had requested and received permission from the respective plaintiffs to erect two signs, and alleging that he also erected three concrete pillars at the entrance to her private roadway leading from her motel property to Highway 395; that he erected a pole line consisting of three poles upon and along her said private roadway; that these poles, line and pillars are appurtenant to her real property; that she and Saner had, since 1938, openly, notoriously and under a claim of right operated and maintained these pillars, poles and signs; that each plaintiff, in 1946, and again in 1948, had told her that these signs, poles and pillars could remain upon their property as long as she desired; that the plaintiffs also stated to her that Saner had obtained and was possessed of a prescriptive right to the location of these in