Friday v. Henah

Deemer, J. Plaintiff, as the grantee of one Myerdick, claims a private right of way over defendant’s land. Prior to the year 1870 Myerdick purchased the southwest ¿ ■of a section of land in Keokuk county, and about the same time defendant bought the south of the northwest J of the same section. One Misc. owned the northeast J and also the northwest ¿ of the southeast ¿ of the section, and one Sherman owned the north \ of the northwest There were then, and are now, public highways on the north, south, and east ■sides of the section. When defendant purchased his first ■80-acre tract, he had no outlet to any of these highways; and shortly thereafter he purchased of Misc. a strip two rods wide off the northwest ^ of the northeast and two rods ■out of the northwest corner of the southwest J of northeast 4- of the section for a road. This secured him an outlet from his dwelling, which stood near the center of his farm, to the highway at the north line of the section. At this time the north ■§ of the northeast of the section was timber land and unfenced; and, instead of following the strip purchased of Misc., he traveled in a northeasterly direction across Misc.’s .land' to the highway.. In the year 1876 defendant purchased of Misc. the whole northeast ¿ of the section, and af-terwards fenced it, putting in a gate at the north end of the strip he had purchased for a.road. Afterwards he purchased more land, and is now the owner of the north of the section, except the strip owned by plaintiff. About 17 years ago he 427 built a new house near the northeast corner of the section, .and near the public highway on the north and east sides of his land. In the year 1873 Myerdick, who is plaintiff’s grantor, purchased of Misc. a strip for a road off the west •side of the southwest i of the northeast ¿ of the section, the north end of which adjoins the south end of the strip first purchased by defendant, tie had no outlet to the highway, however, save as he used the highway previously purchased by plaintiff. There is a gate at the south end of the strip, that had been maintained by plaintiff and his grantor. For many years defendant has maintained a fence on the -west side of the strip purchased by plaintiff’s grantor, and for three or four years has had a fence running from the north ■end of the strip to the east sid'e of his farm. Near the junction of the two strips defendant has recently erected a gate in this east and west fence, which gate is the obstruction ■complained of as we understand it. From this statement it will be seen that, if conditions remain as they are, plaintiff is required to pass through three gates to reach the public highway to the north, if he follows the strip of land purchased for road purposes. The action is to remove the fences and gates obstructing plaintiff’s passage over and along the strips of land originally purchased for road purposes, under claim that he (plaintiff) has a prescriptive right to a private way over the land originally purchased by defendant for a private outlet, to the highway. There is no claim of private way by necessity or by grant, and, if plaintiff has any right to the way, it is by reason of adverse user of the same for the statutory period. To establish a prescriptive right of way, it is not enough to show user alone. The fact of adverse possession must be established by evidence distinct from and independent of the use, and it must also appear that the person against whom the claim is made had express notice thereof. Code, section 3004; State v. Mitchell, 58 Iowa, 567; Zigefoose v. Zigefoose, 69 Iowa, 391; Gray v. Haas, 98 Iowa, 502. There 428 must, therefore, be independent evidence of claim of a private right of way over the defendant’s land as of right, and of knowledge thereof on the part of defendant. The record shows user for the statutory time, but this use seems to have been with defendant’s permission, and without claim of a right of way in hostility to the owner. Such use will never ripen into a claim of adverse possession. The purchases of the two strips by defendant and plaintiff’s grantor were distinct and independent transactions, and, while the parties acquired title thereto from the same grantor, the purchases-were not so connected as to show that either was making any claim to the strip purchased by the other. It is not customary to set out the evidence on which we base our findings, and it is sufficient to say in conclusion that we think the use-was permissive and without claim of right. The case will be reversed for a decree in harmony with this opinion, or, at defendant’s option, he may have a decree dismissing plaintiff’s petition entered in this court. — Reversed.