Workman v. Curran

Mr. Justice Sterrett delivered the opinion of the court, March 17th 1879. It is admitted that the right of way, which is the subject of the present contention, is the same that was in controversy in the first action of trespass; and the cardinal question in this case is whether the pendency of that suit was sufficient to repel the presumption, of a grant which otherwise would arise from the long continued use and enjoyment of the way by the defendant in error. By the verdict and judgment in that case it was conclusively settled that those under whom she claims had no right of way in 1833, when the first suit was brought, and it is not claimed that any has been acquired since, unless it be by an uninterrupted use and enjoyment for over twenty-one years. There is no pretence of right acquired in any other manner ; nor can any claim of right be substantiated on that ground even, unless at least a portion of the period during which the first action was pending be included in the computation. The present suit was brought in less than twenty-one years after the first was determined, and hence no presumption of a grant could arise from the use and enjoyment of the way during that intervening period. It therefore becomes material to determine whether the use by the defendant in error and those under whom she claims could be ripening into a right during the pendency of the first suit, from 1833 until February 9th 1852, when it was finally determined by the judgment of this court. Wha.t then was the effect of the pending action on the respective rights of the parties ? In this state we have no statute on the subject of private ways, except the Act of April 25th 1850, which prohibits their acquisition through unimproved woodland ; and hence it is necessary to resort to the common law, the principles of which have been recognised as cases from time to time called for their application, but the precise point now under consideration does not appear to have arisen in any of our reported cases. In Garrett v. Jackson, 8 Harris 331, it is said by Chief Justice Black, that “ where one uses an easement whenever he sees fit, without asking leave and without objection, it is adverse, and an uninterrupted adverse enjoyment for twenty-one years is a title which cannot be disputed. Such enjoyment without evidence to explain when it began, is presumed to have been in pursuance of a grant.” It will be observed that the enjoyment must be adverse as well as uninterrupted, and one of the conditions of adverse enjoyment is that it be without objection. If therefore it is shown that, during the period of alleged acquisition of an easement by use and enjoyment, the owner of the servient tenement resisted such claim or opposed such use, it will negative the claim: Washburn on Easements 112. “It was accordingly held, says the same learned author, that a prescriptive right to divert water from a stream could not be acquired by an enjoyment for the requisite period [230] where it appeared that the party, against whom it was claimed, during that time remonstrated against such diversion and consulted counsel for a prosecution therefor.” In Nichols v. Aylor, 7 Leigh 546, where one had flowed the lands of another for more than the requisite period, but it appeared the latter had complained and denied his right to do so, it was held that these facts rebutted the presumption of its having been done under a grant. In his opinion, Tucker, President of the Court of Appeals, says, “ the presumption of right or of a grant arises from the long acquiescence of the party, and does not arise where the enjoyment is contested: Bealey v. Shaw, 6 East 216. It would be strange indeed if a grant was to be presumed to have been made by him though he was continually contesting the right, and accordingly in Livett v. Wilson, 3 Bing. 115 (11 E. C. L. R. 64), it is distinctly made an answer to the presumption that the user ‘had been almost always the subject of contest.’ It is also observable in that case that no action had ever been brought asserting the rights of the party, and that his repeated complaints and denial of the title of his adversary were considered as sufficiently rebutting the presumption of a grant.” Again, where an easement in an aqueduct on the land of an adjoining owner Avas claimed by adverse user, and it appeared that the owner of the servient tenement had forbidden his neighbor to enter, and had ordered him off the land while there for the purpose of repairing the aqueduct, it was held that such verbal orders, though unaccompanied by further acts, were admissible to shoAV an interruption of the easement; and that it was not necessary to use actual force to eject, in order to disturb and break the continuity of possession or use and thus prevent it from ripening into title: Powell v. Bagg, 8 Gray 441. These and other authorities that might be cited, recognise the principle that the presumption of a grant may be rebutted by proof of declarations Avithout evidence of forcible resistance. While the presumption of a grant, 'arising from a long continued, adverse and uninterrupted use and enjoyment operates in analogy to the Statute of Limitations, it differs from the case of title to land claimed by adverse possession. There the owner is disseised and if such disseisin continues long enough the title becomes complete. A mere verbal protest or prohibition to occupy the premises Avill not be sufficient without entry. The OAvner in such case would still be disseised. But title to an easement by adverse user stands on a someAvhat different ground. There the owner remains in possession of the premises. The title rests chiefly on his acquiescence in the adverse use, and the evidence which disproves such acquiescence rebuts the title to.the easement: Smith v. Miller, 11 Gray 145. In this case the evidence of non-acquiescence during the pendency of the suit was of the most conclusive character. The record of [231] the pending action, furnishes an emphatic denial of right in those under whom the defendant in error claims, and a positive assertion by the plaintiff in error of exclusive right in himself, and this too in the appropriate forum for the determination of such questions. It would be most unreasonable therefore to presume a grant in the face of such conclusive evidence of an open, public denial of the right claimed, and a standing protest of record against its exercise. The first four assignments of error are sustained. There was also error in that portion of the charge covered by the eighth assignment of error. Judgment reversed.