Okeson v. Patterson

The opinion of the court was delivered by Lewis, C. J. The road in controversy was claimed as an easement attached to a tract of land owned by the plaintiff below. In establishing his right to the road, he relied upon an uninterrupted use and enjoyment of it for the period of twenty-one years. If he satisfied the jury of such adverse enjoyment, his right was complete, according to the principle which has been adopted as analogous to the statute of limitations, applicable to adverse possession of land. Resting, as the principle really does, upon the statute of limitations, it ought to be carried out according to the same rules. An uninterrupted adverse possession of land for the period of twenty-one years, gives a title which is not to be defeated by the mere protestations of the owner. He must make an entry or bring an action within twenty-one years, or his right is gone. So in the case of an easement over his lapd. The uninterrupted enjoyment of it for twenty-one years, adversely to the rights of the owner of the land, gives a title which cannot be defeated by mere objections or denials of the right. He must bring an action or obstruct the enjoyment within twenty-one years from its commencement, or his right to obstruct it is gone. It is often said that the period of twenty-one years’ enjoyment authorizes a jury to presume a grant and, following this fiction with logical precision, it is also frequently held that the presumption may be repelled by circumstances, showing that no such grant existed. But the premises being founded upon a fiction which has nothing substantial in it, and which is only tolerated for the purposes of remedy, the conclusion is necessarily unsound. There was nothing in the conversation which took place between the parties in 1849, that tended to show that the enjoyment of the right of way had been either interrupted before the right became perfect, or had been under a [27] license from the owner. The court went quite as far as the plaintiff in error had any right to ask in answering his second point. In establishing the user for the period of twenty-one years, it was perfectly right to permit the jury to take into consideration the acts of the former owners under whom Patterson claimed title, of the tenants in possession under him, and of Patterson himself, while occupying the dominant tenement. The possession of the land by his tenant at the time the wrong was committed by fencing up the road, is no objection to the plaintiff’s right to maintain this action on the case. The Act of 25th April, 1850, does not bar an action for disturbing a right of way, which had become complete before the act was passed. We see no error in the proceedings below. Judgment affirmed.'