I am of the opinion that the evidence reasonably sustains the court's finding that plaintiffs had acquired an easement by prescription to go onto lot 3 "at such times as * * * reasonably necessary, for the purpose of placing ladders and other equipment thereon in connection with the putting on and taking off of screens and storm windows on the west side of plaintiffs' said dwelling house, and for the purpose of cleaning, painting, and repairing said windows and house."
Plaintiff Edgar D. Romans testified that ever since 1898 his father and other occupants of lot 2, including himself, have gone onto lot 3 twice a year to put on or remove storm and screen windows on their dwelling house, placing ladders thereon at such times and *Page 184 for such purposes, and that they have gone thereon once every six or seven years for the purpose of painting and repairing their dwelling house, likewise using ladders in connection therewith at such times. He testified further that from the time defendants erected the wire fence on the boundary line and forbade him to go onto lot 3, he has been unable to remove or wash most of the storm windows, to put on the screens, or do painting and make repairs on the west side of his dwelling house; that there was no way of doing this work without going onto lot 3. He was able to put on or remove, from the inside, a few smaller windows. His testimony in this respect was corroborated by his wife, plaintiff Ada J. Romans.
He testified further that he had at no time received permission from anybody to use lot 3 for the purposes indicated and that he at all times had claimed the right to use lot 3 for such purposes; that he had taken it for granted that he had such right and had asked nobody's permission; that defendants, subsequent to the erection of the wire fence in 1939, had ordered him to cease using lot 3 for such purposes.
Defendants Anna and Adell Nadler both testified that they had at no time seen plaintiffs place ladders on their property or otherwise use it for the purposes indicated. Defendant Adell Nadler testified that on one occasion Edgar D. Romans had spoken to her about placing a ladder on lot 3 in order to paint his house, but she did not disclose whether she had granted or denied him permission for this purpose. She further testified that subsequent to such conversation she had not seen any ladders placed thereon by plaintiffs. No further testimony was submitted by defendants to indicate that plaintiffs or their predecessors had ever received permission to use lot 3 for the purposes described.
It would seem that the foregoing is amply sufficient reasonably to sustain the trial court's findings with respect to such easement. All the necessary elements to establish an easement by prescription are present to support the claim of plaintiffs. A similar situation was presented in the case of Dunbar v. O'Brien, 117 Neb. 245, 250, 220 N.W. 278, 280,58 A.L.R. 1033, where plaintiff *Page 185 claimed an easement permitting access to the west wall of her house and the use of an adjoining strip of ground for the purpose of painting, washing windows, and making necessary repairs. Therein the court stated:
"In the present case there is evidence tending to prove the following facts: Plaintiff's house was standing in its present location as early as 1898. For more than ten years [the prescribed statutory period in Nebraska] continuously thereafter owners or occupants of plaintiff's lot had access from the front to defendant's lot and used a narrow strip on the east side of it for the purpose of painting, and washing windows. This use was open, notorious and peaceable without permission of the owners, and after 1925 was first interrupted by defendant, who purchased his lot in 1912 and went into possession in 1913. The easement was continuously exercised by plaintiff and former owners or occupants of her house. On the contrary, there is testimony tending to prove that there was no path in the passageway claimed by plaintiff; that owners of defendant's lot did not have notice at any time that a portion of his lot was used adversely by plaintiff and former owners or occupants of her lot; that any such use was permissive, and not adverse. While the evidence on this issue is conflicting to some extent, the preponderance seems to be in favor of plaintiff, whose easement was acquired before defendant purchased his lot, and not subsequently lost. Defendant testified in effect that the husband of plaintiff requested permission for workmen to make repairs on the west side of her house, but this did not amount to an abandonment of the easement or to an admission that it had no existence. A courteous request by a neighbor for such permission, directed to the owner of the fee, did not necessarily disprove an existing right to enter without it. It is clear that the necessary use of the passageway for plaintiff's purposes would not wear a path. After the easement was legally acquired, notice of its continuous use was unnecessary. In the decree below the trial court confined the easement to the ground under the eaves. The evidence shows that stepladders were used, and they seem to be necessary. Their use obviously *Page 186 requires more ground than that covered by the eaves. The width of the easement is determined by necessity, and not by convenience. The former use of a strip to the extent of three feet in width seems to be reasonable and should be protected. The easement does not give plaintiff any right to the fee or to annoy defendant or to litter or injure his lot or to enter his premises for any purpose other than to wash windows, to insert and remove screens, to paint, and to make necessary repairs."
For other illustrative cases, see 28 C.J.S., Easements, § 20.
The evidence seems reasonably clear in the instant case that the use for the purposes indicated was without the owner's consent and under claim of right. In any event, under our decision in Merrick v. Schleuder, 179 Minn. 228, 230,228 N.W. 755, 756, it would seem that defendants had the burden of establishing that the use was not hostile but with their permission and consent. In that case it was stated:
"In the absence of grant, the argument for defendants runs, the user should be considered as having originated in permission or license and so cannot be considered adverse. Without any excursion into the wilderness of authority on the subject, it is sufficient to refer to the rule, well established in this state in accord with the weight of authority elsewhere, that 'where the claimant has shown an open, visible, continuous and unmolested use' for the required period inconsistent with the owner's rights and under circumstances from which may be inferred his knowledge and acquiescence, the use will be presumed to be under claim of right and adverse so as to place upon the owner the burden of rebutting this presumption by showing that the use was permissive. Swan v. Munch, 65 Minn. 500, 67 N.W. 1022,35 L.R.A. 743, 60 A.S.R. 491; Stapf v. Wobbrock, 171 Minn. 358,214 N.W. 49, and cases there cited. The presumption follows from the evidence for plaintiffs concerning the nature and extent of their user. If there is evidence rebutting it, it is not of the character necessary to justify us in disturbing the adverse finding." *Page 187
No evidence was submitted by defendants here to show that plaintiffs had received permission to use the land as described. Under such circumstances, it would seem that the evidence reasonably sustains the trial court's findings with respect to this particular easement. Certainly there is no evidence of the character necessary to justify us in disturbing said finding.