Savage v. Nielsen , 114 Utah 22 ( 1948 )

I concur in the result. I believe it unnecessary to discuss the question of an easement by implication, inasmuch as the trial judge made no findings on that issue. We should avoid passing gratuitously on an issue that should be determined by the trial judge without interference on our part.

In the Zollinger v. Frank case, 110 Utah 514,175 P.2d 714, 716, 170 A.L.R. 770, the following principle of law was announced by this court:

"We think the better rule is that described as the prevailing rule in the above quotation. That is, where a claimant has shown an open and continuous use of the land for the prescriptive period (20 years in Utah) the use will be presumed to have been against the owner and the owner of the servient estate to prevent the prescriptive easement from arising has the burden of showing that the use was under him instead of against him. This rule was mentioned in the recent case of Big Cottonwood Tanner Ditch Co. v. Moyle, [109] Utah [197], 159 P.2d 596, (on rehearing) [109 Utah 213], 174 P.2d 148, 155 [172 A.L.R. 175], where it was said: `It is true that to establish an easement the use must be notorious and continuous and on this adverseness — that is, holding against the owner — will be presumed.'"

See also Northwest Cities Gas Co. v. Western Fuel Co.,13 Wash. 2d 75, 123 P.2d 771; Eagle Rock Corporation v. IdamontHotel Co., 59 Idaho 413, 85 P.2d 242; Fleming v. Howard,150 Cal. 28, 87 P. 908; Stetson v. Youngquist, 76 Mont. 600,248 P. 196.

"In this case Zollinger shows and the court found an open and continuous use for the prescriptive period. The presumption that the use was against the landowner therefore arises. * * *"

In this case there was evidence of an open and continuous use of the land for the prescriptive period. However, the evidence indicated that up until 1930 the use of the land for right of way purposes by Emmett Savage, defendant's immediate predecessor, was by permission of Albert Savage, the father. In 1930 the father, who was the original owner of both pieces, sold the east piece to the plaintiff, Gordon Savage. At that time, Emmett Savage tried to get a right of way from his brother Gordon, but this request was refused. Emmett, in spite of this refusal, continued to use the right of way. From the testimony in the record, it can be fairly inferred that from the time Emmett's request was refused until 1946, the use of the land was against and not under the owner's permission. Were it not for the fact that the time element is too short to permit the use to ripen into a right, I would affirm the judgment of the trial court.