Reimer v. Stuber

The opinion of the Court was delivered, by Black, C. J. This was an action for disturbing the plaintiff’s right of way over land of which the defendant was in possession. The plaintiff’s title to the way was founded on user for upwards of twenty-one years, and some evidence was' given which showed that he had enjoyed it for more than forty-five years. The owner of the land was a woman; she died five years before suit brought; was married thirty-five years before her death; was a minor at the time of her marriage : had seldom visited the place, and npver the woodland through which the way ran. 1. The mere inattention of the owner of land to the fact that an easement in it is used by another, does not weaken the force of the presumption which the lapse of time creates. Such presumptions, like the statutes of limitation, will work out their purpose though the party affected by them should close his eyes. It would not do to say that the mere ignorance of the owner repelled the presumption of a grant. 2. Where a tenant for years or for life grants an easement, such grant is of no force or validity against the reversioner or remainder-man. So, if the tenant of a particular estate suffer an easement to be enjoyed for twenty-one years, it raises no presumption of a grant by him in remainder or reversion. But here the land was occupied by tenants from year to year. The owner of the fee was in possession, and had the right to bring suit every year. The case is wholly different from that of one who is out of possession during the whole of the time. 3. No presumption of a grant arises from the adverse enjoyment of an easement against a minor or feme covert. The presumption operates in strict analogy to the statute of limitations, which recognises the disabilities of infancy and coverture as sufficient excuses for inaction. But a second disability added to one which existed when the adverse enjoyment first began is always disregarded. Thus, a coverture which took place during infancy is not taken into account after the infancy has ended. In this case the marriage of Mrs. Innes was forty-five years before suit brought. Her age is not given, but it would be absurd to say that she was not out of her minority more than twenty-one years before the suit; for that would require us to believe that she was not twenty-one years old until after she was twenty-four years married. [464] 4. Another point is, whether one can acquire a right of way by user of unenclosed woodland for twenty-one years. ' This question was solemnly settled in Worral v. Rhoads (2 Wh. R. 427). Believing it to be our duty to leave the law in as good condition as we found it, we refuse to disturb that case, and therefore rule this point also against the plaintiff in error. 5. Our opinion is, that none of the exceptions to evidence can be sustained, for the reason that the ruling of the judge below was right. But, instead of discussing ' them at length, we will dismiss them at once, by saying that they are not set out in the paper-book as the rule of Court requires. Judgment affirmed.