Othen v. Rosier

Facts

All the land in the dispute was once part of the Tone Survey of 2493 acres, owned by one Hill. Hill sold the 100 acres now owned by the Rosiers to their predecessor on Aug. 26, 1896. He sold the 60 acres now owned by Othen on Feb. 20, 1897. On Jan. 26, 1899, he sold the 53 acres, also now Othen's, and the 16.31 acres, now the Rosiers'. Othen's 113 acres touch no public road. To reach the Belt Line Road, Othen went through a gate onto the Rosiers' 16.31 acres, then through a fenced lane along the south side of the Rosiers' 100 acres, to a gate on the highway. The Rosiers and their tenants used the same lane for farm purposes and for their stock. The lane's south fence dated from about 1895. Its north fence and the outside gate were built about 1906. It was apparently undisputed that the Rosiers made the repairs the lane needed, and so far as the record showed, no one else claimed any right to keep it up. To stop surface water from cutting a ditch in the lane and damaging their cultivated land, they built a levee 300 feet long, about half of it in the lane. The levee held back water and left the lane so muddy that for weeks at a time it was impassable except by horseback. Othen sued, claiming a roadway easement of necessity and by prescription.

Issues

1. Did Othen prove an easement of necessity by implied reservation, when the record did not show that the roadway was a necessity, rather than a convenience, when Hill sold the 100 acres in 1896?
2. Did Othen acquire an easement by prescription, when the lane was fenced and gated and the Rosiers and their tenants used it too, so that his use may have been only by permission?

Holding

Othen proved neither an easement of necessity nor one by prescription. He did not show the roadway was a necessity, not a mere convenience, when Hill sold the 100 acres in 1896, and Hill still owned the 16.31 acres after selling the 100 and 60 acres, so no easement arose over it. His use of the fenced, gated lane, which the Rosiers also used, was merely permissive, so it was only a license.