Hewins v. Smith

Wilde, J. This was an action of trespass quare clausum fregit, and the defendant justified the alleged trespass, under a claim of a right of way over the close, and at the trial introduced evidence tending to prove that he and his predecessors, from whom he derived title to his own close, had used a way, passing across the plaintiff’s close, for more than twenty years. To rebut any presumption arising from such a use, the plaintiff offered to prove that the locus in quo was a part of a large extent of woodland, no part of which was enclosed by fences, and that there were other ways, leading from the defendant’s close across lands of others, to the public roads. To the admission of this evidence the defendant’s counsel objected, on the ground that it was irrelevant, and was calculated to mislead the jury. This objection was overruled ; and we are of opinion that the evidence was not irrelevant, but had a tendency to prove that the use of the way by the defendant was permissive. If lands of other owners in the vicinity were so used without objection, for the purposes of drawing timber, coal and wood, and such use was not intended as adverse to the rights of the owners, it might be presumed, if nothing appeared to the contrary, that the plaintiff’s land was used in like manner. We cannot therefore consider such evidence as wholly irrelevant; and unless it was, it was rightly admitted. The plaintiff’s land being open and unenclosed is a circumstance from which it might be presumed that the use was permissive ; and this presumption would he fortified by proving that all such lands in the vicinity were so used. The other ruling of the court, to which the defendant excepts, we think, was sufficiently favorable to him The [244] plaintiff’s counsel proposed to argue from one of his title deeds, which conveyed the locus, without excepting any way, and with covenants of warranty, that the grantor resisted the right of way; but the court ruled that no legitimate use could be made of that conveyance, further than as an act done by one of the inhabitants of the town for whose benefit the defendant contended the way had been used. This -uling we think was substantially for the defendant; whereas we think the conveyance had some tendency to show that the use of the road was permissive. It was a slight circumstance, however; but if either party had a right to except to the ruling of the court, it was, we think, the plaintiff. Exceptions overruled