Beebe v. Demarco

968 P.2d 396 (1998)

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Nature of the Case

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Facts

In 1957, Beebe (P) purchased a lot. Shirley Wolf’s (D) parents owned the lot three lots west of P’s. Both lots were 236 feet deep. In 1958, the owners of the land to the south of the subdivision build a new subdivision. That development included a six-foot-wide alley running east to west along the rear of the P and D lots. As a result, P gained access to 5^th Ave. from the rear of their property. In 1959, they stored a boat along the alley at the rear of their lot and used the alley to take the boat out. The alley was not wide enough, but they drove over the land adjoining the alley on the unfenced back portions of lots 12,13, and 14. This occurred almost every weekend from 1959-1969. P also testified that from 1970 until 1993, when her husband died, he took the boat out across the same path many evenings and Saturdays. In 1979, P’s husband built a large shop at the rear of their lot and he operated a small woodworking business from the shop until the early 1990s. P testified that her husband would drive across the rear of lot 14 five days per week and the evidence also showed that numerous contractors, social guests, and family members also used that ingress and egress. There were visible tire ruts, and there was no evidence that anyone in ownership in lot 14 ever gave permission for such usage. In 1994, Wolf, who inherited lot 14 from her mother, divided the lot into three parcels and sold the northernmost parcel and entered into an agreement with Demarco (D) to build a house on the southernmost parcel, adjacent to the alley. During that construction, D erected a fence at the southern edge blocking P’s access across the rear of lot 14. P sued under easement by prescription. The trial court ruled that P had established an easement twelve feet wide, ordered D to remove the fence and permanently enjoined D from obstruction of the easement and that P could enter upon the easement areas and grade, level, drain, build, maintain, repair or build the roadway. D appealed.