Phillips v. Bonadies

Banks, J. The only grounds of error pursued by defendant in his brief or argument are that the trial court erred in holding and deciding (1) that the user of the plaintiffs and their predecessors in title was adverse; (2) that it was exclusive, and (3) that the easement could be enlarged during the prescriptive period. The trial court found as a fact that plaintiffs’ user of the premises was both adverse and exclusive. No correction of the finding is requested and these ultimate conclusions of fact will not be reviewed by this court unless it appears that they are contrary to or unsupported by the subordinate facts found, or were not made logically, reasonably and in accordance with the principles of law. Layton v. Bailey, 77 Conn. 22, 58 Atl. 355; Twining v. Goodwin, 83 Conn. 500, 77 Atl. 953; Bradley Fish Co. v. Dudley, 37 Conn. 136, 147; West v. Lewis Oyster Co., 99 Conn. 55, 66, 121 Atl. 462. That the user of plaintiffs and their predecessors in title was open, continuous and with the knowledge of the defendant, the owner of the servient tenement, is not questioned. It is the contention of the defendant that this was a permissive use, not one existing under a claim of right, and therefore could not be held to be adverse. Use by express or implied permission or license cannot ripen into an easement by prescription. *726 This follows from the requirement that the user must be adverse,—that is, a user unaccompanied by any recognition of a right in the owner to stop such use, either express or reasonably to be inferred from the manner and circumstances of the user. When the acts of user are such as to charge the owner of the servient estate with notice of the user and the user is such as to indicate that it is exercised under a claim of right it will be held to be adverse, for such a user would constitute an invasion of the rights of the owner of the soil and be inconsistent with them. In the very nature of the case, however, every such user is by permission of the owner of the servient tenement in the sense that he permits it to continue without exercising his right to terminate it. A permissive user therefore as distinguished from one exercised under a claim of right is not to be inferred from mere passive acquiescence. The facts and circumstances must be such as to warrant the inference of a license exercised in subordination to the rights of the owner of the soil and which he may revoke at any time. On the other hand, the requirement that the user must be exercised under a claim of right does not necessitate proof of a claim actually made and brought to the attention of the owner of the fee. It means nothing more than a user “as of right,” that is without recognition of the right of the landowner, and that phraseology more accurately describes it than to say that it must be “under a claim of right.” 2 Tiffany on Real Property (2d Ed.) p. 2050. Barber v. Bailey, 86 Vt. 219, 84 Atl. 608, 44 L. R. A. (N. S.) 98; Alderman v. New Haven, 81 Conn. 137, 141, 70 Atl. 626; Quigg v. Zeugin, 82 Conn. 437, 440, 74 Atl. 753. Both terms are used in the English “Prescription Act” and construed as synonymous. Goddard on Easements (8th Ed.) 236. *727 Where, therefore, as in the instant case, there is neither, on the one side, proof of an express license or permission from the landowner, nor, on the other, proof of an express claim'of right by the person using the way, the character of the use, whether adverse or permissive, is left to be determined as an inference from the circumstances of the parties and the nature and character of the use. Poliner v. Fazzino, ante, 350, 135 Atl. 289. A finding that the use is under a claim of right is one of fact under our law, and that finding must stand unless it be found to be unsupported by the subordinate facts. Shea v. Gavitt, 89 Conn. 359, 364, 94 Atl. 360; Villany v. D’Amelio, 96 Conn. 680, 682, 115 Atl. 428. It appears from the finding that the plaintiffs and their predecessors in title constantly used the yard in question for passing and repassing on foot and with teams and trucks for a period of thirty years next preceding the bringing of the present action; that certain doorways and a large archway, which had existed in the buildings now owned by the plaintiffs since their erection more than forty, years ago, and which were used for the purpose of receiving and shipping goods and supplies to and from these buildings, were so constructed as practically to necessitate such user as a means of access to and from the doorways and archway by teams and trucks; that in 1907 a predecessor in title of the defendant considered erecting a fence to prevent such user, but that the fence was not erected because of the fear that it would bring about a lawsuit; that in 1919, though an attempt to erect such a fence was made, the part erected was removed after standing less than a single day on protest of a predecessor in title of one of the plaintiffs; that during all of that period the plaintiffs and their predecessors in title obtained no permission or license of any sort for *728 such user and paid no consideration therefor. These subordinate facts fully support the conclusion of the trial court that the use of this yard by the plaintiffs was under a claim of right and adverse. Defendant further claims that plaintiffs’ use of this yard was not exclusive, since it appears from the finding that the yard was also used by the defendant and his predecessors in title. This claim involves a confusion of the requirement necessary to establish a prescriptive right in fee with that necessary to establish an easement. In the former case the possession must be exclusive, since two persons cannot at the same time possess the same parcel of land- unless the right of one is subordinate to that of the other. In the latter case both parties may exercise the right to use a single way, each user being independent of the other and exercised as of right. That the user must be exclusive is true only in the limited sense that the right shall not depend for its enjoyment upon a similar right in others; it must be exclusive as against the community at large. Here the properties of the plaintiffs and the defendant entirely surround the yard which does not appear to have been used by any other person or by the public in general. The authorities hold that a user may be exclusive though it is participated in by the owner of the servient tenement. 9 R. C. L. 773; 19 Corpus Juris, 892; Jones on Easements, § 272; 2 Tiffany on Real Property (2d Ed.) p. 2053; Bigelow Carpet Co. v. Wiggin, 209 Mass. 542, 95 N. E. 938; Manion v. Creigh, 37 Conn. 462. It follows that the finding that the defendant as well as the plaintiffs made use of this yard is not inconsistent with the trial court’s conclusion that the plaintiffs’ user was exclusive to the extent that the law requires as a basis for a claim of prescriptive right. The only other ground of appeal pursued upon de *729 fendant’s brief is that the trial court erred in holding and deciding that the easement could be enlarged during the prescriptive period. The court did not so rule. It appears from the finding that the plaintiffs’ user of the yard during the last fifteen years was at first by single horse teams, later by double horse teams, and during the last eight or nine years by automobiles. The record does not show that the change from horse-drawn vehicles to automobiles imposed any greater burden upon the premises of the defendant or worked any substantial change in the use to which the yard had been put. In order to recover, plaintiffs need only to prove an adverse user of the yard without substantial change in its nature and an obstruction of such use by defendant after the prescriptive period had run. Under the circumstances, the motive power of the vehicles was immaterial. The facts set forth in the finding are sufficient to sustain the judgment appealed from. It is therefore unnecessary to consider the question raised by the plaintiffs’ bill of exceptions. There is no error. In this opinion the other judges concurred.