Barnes v. Haynes

Shaw, C. J. This case comes before us, as upon an agreed statement of facts. The parties, and those under whom they claim respectively, owned estates on the west side of the Main Street in Springfield; each had a dwelling house on the street, and extensive rear lands back of each, extending to Connecticut River, to which neither of them had access except from the Main Street. There was in fact, and in actual use, a passage way, lying between the two houses, from the street to the rear, to a point where each party had a gate leading into his own rear premises, one on the one side, and the other on the other side of the dividing line, by which the fee in the soil of their respective estates was divided; and the track of the passage way, as actually used, lay partly on the one side, and partly on the other side of the same dividing line. This way was used by both parties as a common passage, for all useful purposes, to the rear part of their respective houses, as also to their respective [192] open lands, held in severalty, and separated by a similar dividing line. This common use continued, without interruption, until a few years since, when a new public street was opened from the street towards the river on the other side of the premises now of the defendant, by means of which the owners of that estate had a free access to the rear of their house, and to the former open land lying in rear of their house, towards the river. Since that time the defendant has ceased to use the old common passage, and has claimed the right to use that part of his land, over which the track of the old way passed, as a way, and has claimed the right to use it, and has used it, for other purposes, and built upon it, so that the way in its old course can no longer be used by the plaintiffs. Upon the facts reported, the court are of opinion that, under the circumstances stated, and taken in connection with the deeds under which the parties and their predecessors have respectively held their estates, the use of the common way, by each, so far as it was used in and over the soil of the other, was adverse, uninterrupted and used under a claim of right, and continued more than twenty years, (probably in fact a great many more than twenty,) and thereby each acquired such an easement in that portion of the land of the other, which was covered by the way, as the other could not lawfully disturb. We think that the antiquity, the distance between and the relative position of their respective dwelling houses, and the open lands in the rear of each, and the obvious convenience and necessity for such a common right of way to their respective rear premises, strengthen the presumption arising from long, adverse and undisturbed use, of a non-appearing grant, by which such a common way was created, partly on the land of each, for their common benefit. And we also think that when a fence was erected against the street, the erection of a gate adapted to the passage of teams and carnages, partly on the land of each of the parties, tends to confirm the same presumption. When such actual, uninterrupted use of a way, as of right, is shown to have existed a sufficient length of time to create the presumption of a grant, if the other party relies on the fact that these [193] acts, all or some of them, are permissive, it is incumbent on such party, by sufficient proof, to rebut such presumption of a non-appearing grant; otherwise, the presumption stands as sufficient proof, and establishes the right. Judgment for the plaintiffs.