Gregory v. Sanders

RAPER, Justice.

The ultimate issue in this appeal is the validity of appellants’ claim of a prescriptive right to use of roadways owned by appellees. Appellees filed an action in the district court to enjoin use by the appellants. The district court held that appellants had no such right and enjoined further use.1 Appellants in their statement of issues merely listed topics to be discussed. Appellees rephrase appellants’ positions into the form of questions which, with some editing, we can resolve:

1. Is Nadine Sanders a proper party in the litigation and, if not, what is the consequence thereof?
2. Is William A. Sanders a real party in interest with respect to the subject matter of the litigation?
3. Does the evidence show the requisite elements for the acquisition by defendants of an easement by prescription over the roads in the North Fork Subdivision; i.e., did defendants show that they or their predecessors in interest used (a) the private roads contiguous to the North Fork Subdivision roads, (b) continuously or uninterruptedly, and (c) adversely for a ten-year period of time?
4. Is the evidence sufficient to show that continued use of the North Fork Subdivision roads would cause irreparable harm such as to justify injunctive relief?
5. Is the judgment prohibiting Defendants from using the North Fork Subdivision roads to gain access to their property sustainable by the evidence as disclosed by the record in the trial court?

We will affirm.

A rough sketch of the area, not to scale, may help to understand the facts:

*797

The road access to which appellants (Grego-rys) lay claim is across from south to north what is shown as North Fork River Home-sites near Centennial. The trial court’s Findings of Fact, which we now summarize, disclose that for some years the Gregorys and their predecessors in title off and on gained access through the Sanders’ property. As noted by the trial court, the Sanders subdivided their property and in doing so created different types of roads:

“9. * * * a) Roads dedicated to the public in North Fork Subdivision Numbers 1, 2 and 3; b) real property owned by Plaintiffs set aside for the benefit of North Fork Homesite Owners as a private access road between Subdivision Numbers 4 and 7, and 5 and 6; and c) access road by reservation in deed, or by easement in Subdivision Numbers 6 and 8 respectively on the easterly edge of said subdivision and continuing in a generally northwesterly direction until a point at which a road enters Subdivision Number 3.”

Suffice it to say that the roads dedicated to the public do not interconnect so that *798there is a continuous route over public roads through the subdivision to the Gregory lands from Highway 130 at the south end of the Sanders’ property, which Highway 130 passes through. The Gregorys do have access to their lands over what is known as the Rainbow Valley Lodge Road which enters their land from the west, north of the Sanders’ land. Beginning in 1975, the Gregorys nevertheless used private roads going through the various subdivisions in conjunction with the public roads to reach their lands. On or about October 21, 1977 and November 8,1977, each of the Gregorys were notified that they were not to use the Sanders’ private roads in the North Fork Subdivision.

Because of the Gregorys’ persistence in use of the private roads, the Sanders brought the action in the district court, from which case this appeal is now taken, to enjoin the Gregorys from such use.

Other facts will be set out as required in disposition of the issues.

I

The Gregorys attach some significance to the fact that Nadine Sanders shows up as a party plaintiff (an appellee). Her name was not on the Petition for Preliminary and Permanent Injunction as a party but first appears as a signatory principal on the Bond on Preliminary Injunction at which time she was also included as a plaintiff in the caption on a stipulation regarding the uses by the Gregorys of certain roads during pendency of the action. Counsel for the Gregorys have included the name in some of their filings as well. It does not appear that any objection or motion to strike was ever made during any proceedings in the district court. The Gregorys attach to their brief, as an appendix, the form of warranty deed used by the Sanders in the sale of lots within the various subdivisions. It shows Nadine Sanders, grantor, as the wife of appellee William A. Sanders and provides for her signature.

While fee title to the land out of which the various subdivisions were carved was in the name of William A. Sanders as sole owner, this court takes judicial notice of the practice within this state of the wife joining in the conveyance by the husband of his separate property as an assurance that no claim of a homestead right will be later made by the wife.2

We see no problem in this de minim-is matter and hold that since the question was not raised in the district court and is not a candidate for consideration as plain error, we will not give it our attention on appeal. City of Rock Springs v. Police Protection Association, Wyo., 610 P.2d 975 (1980). Furthermore, the Gregorys have presented us with no authority or cogent argument justifying our consideration. Scherling v. Kilgore, Wyo., 599 P.2d 1352 (1979).

II

It is the contention of the Gregorys that the grant of access road rights by conveyances, plat and “behavior” left no interest in Sanders as grantor sufficient to afford him real-party-in-interest status.

However, the evidence discloses that the Sanders retained title to certain lands forming part of the route the Gregorys claim a right to use. It is conceded that Sanders granted the residents of the subdivision easements to use various roadways which *799he agreed to create for purchasers.3 It should also be noted that appellees retained ownership to a buffer strip of land upon which the southern entrance to the subdivisions is located. The evidence discloses that the purpose of ownership retention was to assure privacy to subdivision purchasers. The law is clear that the owner of a ser-vient estate has a right to object to an unauthorized use of an easement. 25 Am. Jur.2d Easements and Licenses, § 72 (1966).

The question that remains is whether all roadways — both those on appellees’ retained land and any shown on the subdivision plats — were dedicated to the public. If so, the Sanders would have in effect given the public an easement and could not complain about the Gregorys’ use of the road.

To determine whether a public dedication occurred, the plats filed with the county clerk’s office must be considered. After doing so, the district court judge found the roads shown on and contained in North Fork Subdivision Nos. 1, 2, and 3 were dedicated to the public. These subdivisions constitute the northwest one-third of the area denoted as the North Fork River Homesites in the diagram, supra. The roads in the remainder of the development were found by the trial judge in his findings as not dedicated to public use:

“11. The Plaintiffs’ Subdivision Number 4 was established in 1964. All roads and public ways, as was shown on the plat of the subdivision, were dedicated to the public’s use. The road, entitled access road, despite the fact that it is shown on the map, is not within the plat nor the dedication and by reason thereof, was not dedicated to the public.
“12. Plaintiff did not intend to dedicate the access road shown on the map of Subdivision Number 4 when it dedicated the platted area within Subdivision Number 4.
“13. North Fork Subdivision Number 5 was established in 1965. The owners dedicated to the public use such roads and public ways as were shown on the plat. However, no roads were shown on the plat. A road that is contiguous to Subdivision Number 5, on its east side, was constructed during 1963 and 1964.
“14. The North Fork Subdivision Number 6 was filed in 1966. The dedication provided that such roads and public ways that existed were dedicated to the public use. However, no roads were depicted on the plat. The subdivision road that is contiguous to Subdivision Number 5, and which was constructed during 1963 and 1964, served the homesites that were located directly east of Subdivision Number 5. A road was built to serve the home-sites on the eastern side of Subdivision Number 6 in 1969 and 1970. An additional road that runs from east to west and bisects Lots No. 9 and 10 in Subdivision Number 6 was constructed between 1969 and 1970.
“15. Subdivision Number 7 and Number 8 were dedicated in 1969 and 1970 respectively. The subdivisions as filed do not indicate any roads and there is no dedication of roads to the public.”

The filing of the plats was done pursuant to § 34-113, W.S.1957:

“Every original owner or proprietor of any tract or parcel of land, who has heretofore sub-divided, or shall hereafter subdivide the same into three or more parts for the purpose of laying out any town or city, or any addition thereto, or any part thereof, or suburban lots, shall cause a plat of such sub-division, with references to known or permanent monuments, to be made, which shall accurately describe all the sub-divisions of such tract or parcel of land, numbering the same by progressive numbers, and giving the dimensions, and length and breadth thereof, and the breadth and courses of all the streets and alleys established therein. Descriptions of lots or parcels of land in such sub-divisions, according to the number and designation thereof, on said plat contained, in conveyances, or for the purposes of taxa*800tion, shall be deemed good and valid for all intents and purposes. The duty to file for record a plat, as provided herein [§§ 34-112 to 34-115, 34-117 to 34-126], shall attach as a covenant of warranty, in all conveyances of any part or parcel of such sub-divisions by the original owners or proprietors, against any and all assessments, costs and damages, paid, lost or incurred by any grantee, or person claiming under him, in consequence of the omission on the part of said owner or proprietors to file such plat.”

The effect of dedicating streets to public uses is discussed in § 34-115, W.S.1957 as follows:

“The acknowledgment and recording of such plat, is equivalent to a deed in fee simple of such portion of the premises platted as is on such plat set apart for streets, or other public use, or is thereon dedicated to charitable, religious or educational purposes.”

“It is well recognized that in the construction of deeds, they must be considered as a whole and the intent of the parties gathered from the plain and unambiguous language contained therein.” Dawson v. Meike, Wyo., 508 P.2d 15, 18 (1973). However, “[i]f the intention of the grantor does not readily appear from the instrument, then the language used is to be read in the light of the surrounding circumstances.” First National Bank and Trust Company of Wyoming v. Finkbiner, Wyo., 416 P.2d 224, 229 (1966). When extrinsic evidence becomes admissible to prove the original intent, a question of fact is presented.

In this case Mr. Sanders testified that his intent had always been to keep the roads private. We hold that since there was ambiguity in the plats as to whether the roadways shown (in plat number 4) or not shown (in plat numbers 5 and 6) were dedicated to public use, a question of fact existed as to the intent of the drafters of the plats. Doubtful situations must be submitted to a trier of facts. Gray v. Fitzhugh, Wyo., 576 P.2d 88 (1978). There was evidence supporting the district court’s finding that no dedication was intended. On appeal, findings of fact are presumptively correct and must not be set aside unless clearly erroneous or contrary to the great weight of evidence. Diamond Management Corporation v. Empire Gas Corporation, Wyo., 594 P.2d 964, 966 (1979). We are not free in this appeal to question that finding of fact since it is supported by evidence and must rule that Sanders was a real party in interest and able to maintain this action.

Ill

The next question we consider is whether the appellants failed to establish at trial the presence of the requisite elements for the acquisition of a prescriptive easement which would entitle them to continue the use of the North Fork Subdivision roadways.

The law in Wyoming is clear,

“ * * * There can be no doubt that a party claiming a right of way by prescription has the burden of proving his use was adverse, under color of title or claim of right, and such as to put the owner of the servient estate on notice that an adverse right was being claimed. If the use is permissive, no easement can be acquired.” (Footnotes omitted.) Yeckel v. Connell, Wyo., 508 P.2d 1200, 1202 (1973).4

The use must also last for at least ten years before the title or right is vested by § 1-3-103, W.S.1977.5 Prescriptive ease*801ments are not favored in law. Gray v. Fitzhugh, supra, 576 P.2d 91. Since appellants were the parties claiming a prescriptive right, it was their burden to establish all of the requisite elements.

The district court found that the appellants had failed to establish an open, continuous, uninterrupted, and adverse use for a period exceeding ten years. The court acknowledged that the requisite use had only been proved for the period of time commencing with 1975 until the lawsuit was filed in 1979. It also noted prior use by the appellants’ predecessors in interest, but concluded that this use was not sufficient to establish a prescriptive right.

It is also the appellants’ burden on appeal to make an affirmative showing of error. Spriggs v. Copenhaver, Wyo., 459 P.2d 203 (1969). Their brief assumes that the use by their predecessors in interest was sufficient to create a prescriptive easement. Nowhere does the brief discuss why the appellants believe the district court was wrong. In actuality, the record supports the district court’s finding in that the use appears to have been sporadic and wandering over no defined trail or road and not in a fashion as would put the owner of the servient estate on notice that an adverse right of access was being claimed. A prescriptive right of way cannot be acquired to pass over land in a helter-skelter mode. The right must be confined to a specific way or a definite, precise line which has been used as a right of way. Anno., Acquisition of right of way by prescription as affected by change of location or deviation during prescriptive period, 80 A.L.R.2d 1095, Sec. 2, 1096. Accordingly, appellants have failed to meet their burden and the district court’s finding must be affirmed.

IV

Our fourth inquiry is whether there was sufficient evidence supporting the district court’s finding that continued use of the North Fork Subdivision roads by appellants would cause appellees irreparable harm such that injunctive relief was warranted.

It has been said that “[a]n injury is irreparable, within the law of injunctions, where it is of a ‘peculiar nature, so that compensation in money cannot atone for it.’ Gause v. Perkins, 56 N.C. 177 (1857).” Frink v. North Carolina Board of Transportation, 27 N.C.App. 207, 218 S.E.2d 713, 714 (1975). Money cannot be a substitute for the privacy appellees sought to create for purchasers of lots within the subdivisions. There is also irreparable damage in the case of a repeated or continuing trespass where multiple actions may otherwise be necessary. Thus, an injunction is treated as the proper remedy in order to avoid such a multiplicity of lawsuits. Collins v. Freeland, 12 N.C.App. 560, 183 S.E.2d 831 (1971); Kennedy v. Bond, 80 N.M. 734, 460 P.2d 809 (1969).

“Equity extends appropriate injunctive protection to property rights and interests of every description, whether the property is real or personal, although it is more frequently used in the case of real property. Jurisdiction to prevent threatened disturbance of the peaceful use and enjoyment of real property is inherent in a court of equity, and injunction is a proper and ordinary remedy for the protection of owners in the enjoyment of their rights in real estate, regardless of what those rights may be. * * * ” (Footnotes omitted.) 42 Am.Jur.2d Injunctions, § 71, p. 815 (1969).

Here the district court found that there was occurring a repeated and continuing trespass; and accordingly, it entered an injunction barring the appellants from traversing appellees’ land. Based on the record, we cannot disagree and must uphold the district court’s action.

V

Finally we must determine whether the record supports the judgment prohibiting the appellants’ continued use of the North Fork Subdivision roads as a more convenient access to their property. Convenience is not an element in gaining a pre*802scriptive right. On appeal we examine the evidence in a light most favorable to the prevailing party and resolve all conflicts in evidence in the appellee’s favor. Gray v. Fitzhugh, supra, 576 P.2d 88. Further, the judgment of a trial court is presumed correct. Spriggs v. Copenhaver, supra, 459 P.2d 203. The evidence in this case shows appellees to be the owner of the land upon which the road in question is situated. They have granted certain residents in the area the right to use these roadways. Appellants were not granted such a right, nor has such a right accrued to their benefit under the doctrine of prescriptive easements. They were unable to establish at trial an adverse, continuous, uninterrupted use for a ten-year period and so have failed in their proof.

Nevertheless, it appears that the injunction entered by the district court is overly broad. It prohibits the appellants from using the private roadways even if invited by the homeowners in the subdivisions who have the right to allow guests, employees or other invitees on the roads. The order should only bar appellants from any unauthorized use, and we remand the case to the district court to allow that court to make an appropriate modification of the injunction to that end.

Affirmed, but remanded to the district court for modification of the injunction consistent with this opinion.

. The court’s enjoinder:

“IT IS FURTHER ORDERED that Plaintiffs’ Petition for Preliminary and Permanent Injunction be, and is hereby, granted, and that the Defendants, and each of them, are hereby perpetually enjoined from using or traveling across the aforesaid lands or private roadways in the North Fork Subdivisions * *

While appellees prayed for money damages, none were awarded. There is no cross-appeal.

. Section 34-2-121, W.S. 1977:

“Every owner or occupant of a homestead as established herein may voluntarily sell, mortgage, or otherwise dispose of or encumber the same; provided the instrument of writing conveying, mortgaging, disposing of or encumbering such homestead shall contain in substance the following words: ‘Hereby releasing and waiving all rights under and by virtue of the homestead exemption laws of this state,’ and shall be freely and voluntarily signed and acknowledged by the owner and the spouse of the owner of said homestead. The foregoing provisions shall not be applicable to nor shall compliance therewith be required for full legal effectiveness of any conveyance of property directly from husband to wife."

It is noted that the release and waiver provision did appear in the deed form referred to.

. The pertinent provision of the warranty deed to each of appellees’ grantees:

“10. Initially Grantors will provide main access road to Grantee _ property, and thereafter Grantee _ agree _ to unite with other homesite owners in maintaining access road, and agree _ to build and maintain any necessary or desired road on _own property.”

. See also, Gray v. Fitzhugh, supra; Stock v. Roebling, Wyo., 459 P.2d 780 (1969); White v. Wheatland Irrigation District, Wyo., 413 P.2d 252 (1966); Haines v. Galles, 76 Wyo. 411, 303 P.2d 1004 (1956); City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929); McIlquham v. Anthony Wilkinson Live Stock Co., 18 Wyo. 53, 104 P. 20 (1909); Note, “Prescriptive Acquisition of Easements in Wyoming,” 12 Wyo. L.J. 59, 62 (1957).

. Section 1-3-103, W.S.1977, provides:

“An action for the recovery of the title or possession of lands, tenements or heredita-ments can only be brought within ten (10) years after the cause of such action accrues.”