Faulkner v. Hook

*140 JAMES T. BDAIR, J. — Faulkner, Slatten aiid • Wendling sued separately to enjoin respondents from trespassing on their respective lands. The trial court rendered judgment against each of them, and these three appeals followed. The cases have been re-assigned. They will be consider ed as- one. Appellants do not state the facts in detail, and that example will be followed. The evidence is quite conflicting. When the record is considered and due deference is..given the findings necessarily implicated in the decree, the facts"appear to be with respondents. In 1869 or 1870 certain residents of Daviess County organized a school district. Much of the territory was uninelosed. A site for a school house near the center of the district was given by Andrew Buzzard. Much of the material and labor in construction was donated by citizens of the new district. The school house was used for school purposes from about 1869 or 1870 until 1921, when it burned. It was used as a precinct voting place for nearly forty years before the fire. At the beginning the pupils reached the school house along any path they chose to travel over the open lands about it. Some of the farms began to be fenced. The school house stood on-a parcel at the'northeast corner of the southeast quarter of section nine. Buzzard owned the whole of section nine except the northeast quarter, which *141 was owned by Hamblin. 'Miller owned the west half of section ten. The interference offered by the fences collected, in a sense, the indiscriminate travel over the lands, and a roadway soon came into nse. A'public road ran along the north side of section nine and of section ten. Another ran along the east side of section ten. Another came into nse north and so,nth about through the middle of the west half of section nine. The way used to the school house first .led from the road north of section ten, leaving it ,;af the half mile post, south to the northwest corner of the south half of the northeast quarter of the section, now owned by respondent Hook, and then ran in a southwesterly direction to the school house. Another such way, or part, or continuance of the first, ran from the road in the west part of section nine northeasterly] to the school house. Its juncture with the road last mentioned was near the home on the Buzzard, now Slatten, farm. Subsequently, the way from the north and east was changed so that it reached the public road on the east of section ten over respondent Hook’s land. There is no complaint about this part of the road and it is not. involved in the case. For nearly fifty years there was general use of this way, or these ways, for access to the school house. Gates were maintained at the termini, but the evidence justifies the finding that no denial of the right to use the way was inferable from this. There is, evidence that the way was not a definite one, but was changed by the users frequently. The evidence to the contrary, at least so far as is necessary to show a use for more than one statutory period of ten years, is amply strong to support the trial court’s finding to that effect. There was evidence that there was travel extra viam to avoid mud holes and fallen trees and in response to slight changes, in fence lines by the landowners. There is no substantial evidence of any interference with the use of a kind implying a denial of the right until after the school house burned and a controversy arose with respect to a removal of the school *142 house site to a location on the public road. The school house was almost rebuilt 'before these suits were begun. It is true that a use which is permissive in its origin remains permissive until a “distinct and positive assertion of a right hostile to the owner” is “brought home to him.” [Pitzman v. Boyce, 111 Mo. l. c. 392.] It is also true that the general rule is that the burden is upon the claimant to show the adverse character.of the use; b,ut in the absence of some showing that the use was permissive in its origin it is well settled that when one claims an easement by prescription and shows an open, continuous, visible and uninterrupted use for the period of the ten-year Statute of Limitation, the burden is cast upon the landowner to show that the use was permissive, rather than adverse, if he claims it to have been so. [Pitzman v. Boyce, 111 Mo. l. c. 392; Gerstner v. Payne, 160 Mo. App. l. c. 295, and cases cited.] This is the general rule. [Smith v. Pennington, 122 Ky. 355, 8 L. R. A. (N. S.) 149, and note; Barber v. Bailey, 86 Vt. 219, 44 L. R. A. (N. S.) 98, and note.] A prescriptive right to a conditioned use may be acquired as well as to an unhampered one. In Rogerson v. Shepherd, 33 W. Va. 307, it was said that “if the way acquired by use, although well marked and defined, is restricted, during the time required for the establishment of the right, to a use and enjoyment thereof with bars or gates across it, the right acquired will be restricted to the same extent.” [Brookshire v. Harp, 186 Ky. 217.] The owner of the servient estate may acquire by prescription a right to maintain gates across a way. [Ailes v. Hallam, 60 W. Va. 305; Ball v. Allen, 216 Mass. 469; Smith v. Pennington, supra.] The erection of gates or bars by consent or without adverse claim does not prove an abandonment of a way or destroy the right thereto. [Van Blarcom v. Frike, 29 N. J. L. 516; State v. Pettis, 7 Rich. L. 390; Welsh v. Taylor, 134 N. Y. 450.] There is ample authority for the proposition that the owner of the servient estate has a legal right to maintain gates *143 at each end of a way acquired by prescription, or otherwise. [Luster v. Garner, 128 Tenn. 160, Ann. Cases, 1914 D, 769, and note; Sugar Co. v. Stephenson, 34 Utah, 184; Mitchell v. Bowman, 74 W. Va. l. c. 502.; Chenevert v. Larame, 42 R. I. 426; Jones on Easements, sec. 406.] Under this view of the law, the maintenance of gates is no negation of the easement. [Smith v. Roath, 238 Ill. 251; Dunham v. Dodge, 235 Mass. 367; Ford v. Rice, 195 Ky. 185; Palmer v. Newman, 91 W. Va. 13.] Immaterial deviations from the way or like changes in its course to avoid mud holes or temporary obstructions or like changes made for the convenience of the landowner and by consent do not defeat the right to the way, or defeat its acquisition. [Moll v. Hagerbaumer, 98 Nebr. l. c. 556; Trustees Cin. So. Ry. Co. v. Slaughter, 126 Ky. l. c. 497.; Wendler v. Woodard, 93 Wash. 684, citing 9 R. C. L. 776; Eureka Land Co. v. Watts, 119 Va. 506; Flener v. Lawrence, 187 Ky. 384; Starks v. Hobdy, 248 S. W. (Ky.) 867.] The inhabitants of a school district or voting precinct may acquire a way .by prescription (Washburn on Easements (4 Ed.) chap. 1, sec. 5, l. c. 126, 177, 198, 199, et seq.), and even.a dedication may be for a partial use. [Ibid. 214.] These principles decide the case. There are details of the evidence upon which independent questions are attempted to be raised, but these details expend theiir force upon the issues of fact decided by the court and have been given their due weight. The decree is not to be construed to permit the indiscriminate use of surrounding lands as in earlier times. Nothing was acquired by that use. Respondents were using the roadway only. The meaning of the decree is that, under the facts, they cannot be enjoined from its use for purposes of access to the school house. The question whether there has been another use of the way which establishes it as a public road for all purposes need not 'be decided. The judgment* is affirmed. All concur.