Muncy v. Updyke

Harrison, J., delivered the opinion of the court. The bill in this case was filed by the appellee, J. M. Updyke, praying for an injunction restraining the defendant, Patton Muncy, from obstructing a certain right of way through his land which the complainant claimed to be entitled to. The court granted a temporary injunction and subsequently, upon the hearing on the merits, entered a final decree perpetuating this injunction, from which decree the defendant, Muncy, has taken this appeal. Appellant contends that it is not alleged in the bill that the appellee was entitled to a right of way by prescription, and, therefore, that it was error to overrule appellant’s demurrer to the bill and grant the appellee relief upon that ground. The bill alleges a state of facts which, if proven, show that the complainant was entitled to the right of way by prescription. It was not necessary for him to allege the conclusion of law, that the facts stated constituted a right of way by prescription, in order to • entitle him to a hearing of his case on its merits. Nor does the record sustain the further contention of appellant that the bill fails to point out the location of the right of way, and that the route established by the decree is uncertain and indefinite. The bill shows that complainant expressly claimed a right to the use of the “old Thompson road;” and alleged an actual use of it by himself for more than ten years, during [638] which, time he had worked and repaired the same, and that the defendant and other owners of the land through which the road ran had acquiesced; that the “old Thompson road” was and always had been a private right of way incident to the James Thompson land and was used as - such by all the owners of the land which lay between the said James Thompson land and the public road, and that none of the owners of the land north of the Thompson land had for more than twenty years, and probably for sixty or seventy-five years, ever denied the existence of such right of way or questioned its use. As to the identity of the road, the bill repeatedly refers to it as a road known locally as the. “old Thompson road,” which is referred to in sundry deeds filed with the bill. It is unnecessary that the bearings and distances should be alleged, for according to the bill the road identifies itself by marks of travel, and by local tradition. It is there to be seen by any one going upon the ground. The only part of the road in controversy is that section of the “old Thompson road” between the middle of Walker’s big creek and the public road which passes over the land of the appellant. The decree describes this section' as along the route of what is" designated in the bill and proceedings as the “old Thompson road” from the middle of Walker’s big creek to the public road, along the route heretofore traveled, as indicated upon the map which is filed with the deposition of J. A. Wagner from,the point “3” to the point “H.” This designation is quite sufficient to enable any one going upon the ground and making inquiry to determine the location of the easement, and that is all that is necessary or required. There is in the decree an inadvertent error in referring to the map filed with the deposition of J. A. Wag [639] ner. The point “H” in the decree should read “the point 4,” the error being due to misreading the figure 4 on the map for the letter H. The point is, in fact, designated by the figure 4, and it so appears from the evidence. It does not appear that this error can create any uncertainty in the designation intended by the decree; however, this court will, out of abundant caution, correct the error and make the decree conform to the fact. The record abundantly establishes the claim of the complainant that this “old Thompson road” is á well known and easily designated route that has been in constant and continuous use as a private right of way by the complainant and others, without objection from any source, for much more than twenty years, and that it is a necess'ary convenience to those who use it as an outlet to the public road. Such a use as is shown could indicate nothing less to the owners of the servient estate than that the user was exercising it under a claim of right. In the case of Williams v. Green, 111 Va. 205, 68 S. E. 253, it is said: “In order to establish a private right of way over the lands of another by prescription, it must appear that the use and enjoyment thereof by the claimant was adverse under a claim of right, exclusive, continuous, uninterrupted and with the knowledge and acquiescence of the owner of the land over which it passes, and that such use has continued for a period of at least twenty years.” It is further held in the ease cited that to constitute an exclusive use does not mean that the plaintiff must be the only one using the way, but exclusive means that the use is a proprietary use and not a use by the public generally. It is further held that when there has been such a use for more than twenty years, the bona fides [640] of the claim of right is established and the owner of the land over which the way passes must rebut that presumption by showing permission or license from him or those under whom he claims, or denials or objections to such use under circumstances that will rebut the presumption. From the record in the ease before us, it satisfactorily appears that every requisite of a right of way by prescription laid down in the case cited is met, and there is no evidence that the use was a mere license or that its exercise was ever denied or objected to by any one. In conclusion, we are of opinion that the decree appealed from, upon the merits of this ease, is plainly right, and must be affirmed after being corrected by substituting the figure “4” for the letter “H” in the description of the right of way as hereinbefore indicated. Amended and affirmed.