Clatterbuck v. Clore

Sims, J., after making the foregoing statement, delivered the following opinion of the court: In the view we take of the case it will be necessary for us to consider only one question which is presented by the assignments of error, as that, in our opinion, is decisive of the case. Such question is as follows: 1. Did the court below err in holding that the appellee had acquired the prescriptive right to use the road along the route as established by the decree under review? This question must be answered in the affirmative. [1, 2] In accordance with numerous decisions of this court, it is essential to the acquisition by prescription of an [121] easement of a private right of way over the lands of another, that the use of the way, however long continued,.must, for the prescriptive period of twenty years, have been “a proprietary use, exercised under some claim which is independent of the claims of all others and not dependent for its enjoyment upon similar rights in others.” Landrum v. Tyler, 126 Va. 600, at p. 601, 101 S. E. at p. 788, and cases cited. That is to say by the words “exclusive use,” (which define one of the elements essential to the acquisition of the prescriptive right), it is meant “that the use is a proprietary one and not a use by the public generally.” Muncy v. Updyke, 119 Va. 636, p. 639, 89 S. E. 884, 885. This essential element was lacking in the use of the road by appellee and his predecessors in title to his home tract of land prior to appellee’s obtaining his deed in 1904 to a portion of the Gibbs-Gordon land, all as set forth in the statement of facts preceding this opinion. Hence we are of opinion that no right of use of such road had been acquired by appellee in 1904, at the time he obtained the latter deed, and that the use of the road prior thereto cannot avail-the appellee in any way as giving him any prescriptive right to such easement. [3] There was a user of the ro:ad by Watson, one of appellee’s predecessors in title to the portion of the Gibbs-Gordon land to which appellee obtained a deed in 1904, which user was from some time after 1889 up to 1904. If that user could have been tacked to the user of the road by appellee after 1904, the appellee has failed to supply any definite evidence as to when Watson’s user began. So that the evidence in the cause fails to show that the prescriptive period had run from the beginning of Watson’s user of the road to the obstruction of it by appellants in 1920. [4] Further, as to Watson’s user, in so far as it was under claim of ownership of the land on which the road was then [122] located, that user was under such a mistake as to the boundary of the land, as appears from the statement of facts above, that it was not adverse so long as such mistake continued. Christian v. Bulbeck, 120 Va. 74, 90 S. E. 661, and cases cited. What is last said is true also of appellee’s user of the road from 1904 until he discovered the mistake under which Watson had acted and under which appellee acted until the latter had the dividing line surveyed and run on the ground in 1906. Then for the first time it was disclosed to the parties that the road was admittedly located not on, but partly to the west of the portion of the Gibbs-Gordon land owned by Watson and subsequently by appellee, on conceding to them all of such land claimed by them. Then, for the first time, that portion of the road which alone is really in controversy in this cause, namely, the road shown on the diagram preceding this opinion as B C, was changed from the location B b' C to that of B C, as shown on such diagram. This change was by or with the consent of appellee, and was made for the purpose of locating the road on such last named land, so that it would be altogether on appellee’s land, as is fully set forth in the statement of facts aforesaid preceding this opinion. Appellee’s first adverse user of the road under any proprietary claim of .right, therefore, must be considered to have begun in 1906, when he discovered his aforesaid mistake. Appellants obstructed such road in the early part of 1920. This suit was brought thereafter in 1920. Hence, the prescriptive period of twenty years from 1906 had not run when such obstruction occurred; nor had such period expired when this suit was brought. It follows, therefore, from, the application of the well settled rules of law aforesaid to the facts of the case, that the decree under review must be reversed and the bill of the appellee must- be dismissed with costs to appellants. Reversed and bill dismissed.