Arnold Sexton, Appellee, v. Hugh Holt et al., Appellants

Kansas Supreme Court1913-12-06No. No. 18,389

91 Kan. 26

Summary · law.co

Holding. The oral agreement to share a driveway created only a reciprocal license between the brothers, not an enforceable easement, because the use was consensual rather than adverse and the arrangement was not reduced to writing. The judgment is reversed and remanded with directions to enter judgment for the defendants.

Two brothers divided inherited land and orally agreed to share a driveway along their property line, each contributing twelve feet on their side. For approximately twenty-eight years, the brothers and their successors used the road as a common way. When the brother's land passed to a guardian and then to a lessee who fenced off part of the road, the other brother sued to keep it open. The trial court found that the long use under the agreement had created an enforceable right to maintain the road.

The appellate court reversed, holding that the oral agreement between the brothers created only a revocable license rather than a permanent easement. Because the arrangement was not in writing and was based on mutual consent rather than adverse use, it could not ripen into an easement through long use. The court found no evidence that either party had made substantial investments or that circumstances had changed in a way that would justify enforcing the license against successors in interest.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an oral agreement to share a road creates an enforceable easement or merely a revocable license
Whether use of a road under a license can ripen into an easement through prescription
Whether the statute of frauds prevents creation of property interests through oral agreements
Whether changed circumstances or substantial investment can enforce an oral license against successors

Procedural posture

Arnold Sexton brought an action for injunctive relief against Hugh Holt and others to prevent maintenance of a fence blocking a driveway; the trial court entered judgment for the plaintiff, and the defendants appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered by

Burch, J.:

In a division of land among the heirs of James Sexton a tract containing 96 acres was divided between his two sons. Arnold received the east 48 acres and Henry the west 48 acres of the tract. Arnold erected a house, barn, and other improvements at a point just east of the center of the line between the two subdivisions. Henry also owned land lying north and south of that, belonging to Arnold. Many years ago the two brothers established a driveway extending from Arnold’s barn to the north line of the 96-acre tract. Arnold states the facts as follows:

“Q. After the division of this land, was there any agreement between you and Henry as to a roadway or driveway between your two places? A. Yes, sir.

“Q. You may state when that agreement was made, and what it was. A. Well, the agreement was that there was to be a road on the line between us for the use of both of us; we was each to give one-half, twelve feet on each side of the line.

“Q. When did you say that agreement was made? A. That was about twenty-eight years ago this summer.

“Q. You may state whether or not that was used as a road from that time on? A. Yes, sir, it was.”

Arnold testified that he and Henry did some work fixing up the road some seventeen years ago. Henry established a temporary fence along the west side of the driveway, but it remained open on Arnold’s side. Henry became insane, and his guardian, C. C. Wyandt, leased his land to Hugh Holt. About two years ago Holt drove some cattle down the road. Arnold Sexton objected, and said that if it occurred again he would take up the cattle and Holt would be obliged to pay for them. Holt then caused a survey to be made and built a permanent fence on Henry Sexton’s land two feet west of the surveyed line. The location of the boundary was confirmed by a subsequent survey made at the instance of Arnold Sexton.

The action was brought by Arnold Sexton to enjoin the maintenance of the new fence. The court made the following findings of fact and conclusion of law:

“The common road set out and described in plaintiff’s petition was created by the verbal agreement of said plaintiff and Henry C. Sexton; that the said plaintiff and Henry C. Sexton and his successors in possession have used said road as a common way under said agreement for more than fifteen years, and that by reason of said agreement and said user, the said plaintiff has acquired and now has the right to have said road kept open as a common road for the benefit of the premises of said plaintiff and said H. C. Sexton.”

Judgment was rendered for the plaintiff, and the defendants appeal.

The arrangement between the two brothers was not reduced to writing. It was made for mutual conve nience and was allowed to rest upon mutual confidence. It gave neither one any interest in the land of the other because of the statute of frauds,, Therefore nothing but reciprocal licenses were created, and use under a license will not ripen into an easement by prescription, however long continued. Use according to permission to use is not adverse. To be adverse the use must be under a claim of right with the knowledge of the owner of the estate but without his consent. (Railway Co. v. Conlon, 62 Kan. 416, 63 Pac. 432; Insurance Co. v. Haskett, 64 Kan. 93, 67 Pac. 446; Jobling v. Tuttle, 75 Kan. 351, 364, 89 Pac. 699; Dotson v. Railway Co., 81 Kan. 816, 819, 106 Pac. 1045.) In the case of Insurance Co. v. Haskett, supra, there were mutual licenses.

There is neither finding nor evidence that the use of the way ever changed in character from what it was when first begun. Perhaps the conduct of Arnold Sexton at the time of the cattle episode amounted to a revocation of the license he had granted to his brother.

There is neither finding nor evidence of such a change in the situation of the licensee, or of such expenditures by him, on the faith of the license as might appeal to a court of equity. A right of way by necessity is not involved.

The judgment of the district court is reversed and the cause is remanded with direction to enter judgment for the defendants.