Clark v. Paquette

TYLER, J. This case is heard upon the bill and answer. The defendant should be decreed to redeem the premises by paying the Post mortgage and the mortgage of July 23, 1886, unless there is an averment in the answer that, prior to July 26, 1884, when the Post mortgage was executed, the defendant had acquired a right of way across the premises bjr adverse use. The averment is that [389] “The defendant has, since January 31, 1866, at all times as needed by him and as his business required, used the open space between the Blaisdell store and his property on the west to get to the rear of his buildings, as it was necessary for him to do, and without objection on the part of the owners or occupants oí the Blaisdell shop or store.” No act is alleged appropriating any particular portion of the open space exclusively to himself. No particular route is described. It is only alleged that the defendant had passed over the open space when his business required, during the time named, without objection by the owners of the soil. It is not alleged that the use was under a claim of right. From the facts that it was an open space and that the defendant passed over it without objection from the owners of the dominant estate, an adverse use is not presumable. Such use as the defendant enjoyed may have been by permission from the owners. Plimpton v. Converse, 44 Vt. 158 and cases there cited. The defendant acquired title by deed to the right of way prior to the execution of the third mortgage. His knowledge that the mortgage was about to be executed could not affect that title when acquired. Decree reversed and cause remanded, with mandate that the defendant may redeem the fremises by paying the amount of the first and second mortgages.