Peters v. Robertson

Mr. Justice Burnett delivered the opinion of the court. 1. It clearly appears, that the plaintiff and his predecessors in interest owned the land between the premises of the defendant and the nearest highway. The testimony discloses that soon after his settlement upon his homestead the defendant began to travel across the intervening land to reach the county road. The tracts he crossed were first unimproved, hut were afterward cleared and planted to orchard. No reservation in any of the deeds forming the plaintiff’s chain of title was ever made for a road, and so far as the record is concerned the plaintiff has a fee simple estate in the full amount of realty described in his com [266] plaint. By a preponderance of the evidence it is disclosed that whatever privilege the defendant had to cross the land was merely permissive, amounting to nothing more than a revocable license. In Parrott v. Stewart, 65 Or. 254, 261 (132 Pac. 523, 525), Mr. Justice Bean says: “The adverse use which will give title by prescription to an easement is substantially the same in quality and characteristics as the adverse possession which will give title to real estate. As in the case of adverse possession, it must be continued for a long period; it must be adverse, under a claim of right, exclusive, continuous, uninterrupted and with the knowledge and acquiescence of the owner of the estate out of which the easement is claimed. * * Where the use is merely permissive, and not adverse, there is no basis on which a right of way by prescription may rest.” In the case of Bohrnstedt Co. v. Scharen, 60 Or. 349 (119 Pac. 337), Mr. Justice Moore quotes with approval the following language from Hall v. McLeod, 2 Met. (Ky.), 98 (74 Am. Dec. 400): “It cannot be admitted that where the proprietor of land has a passway through it for his own use, the mere permissive use of it by other persons for half a century would confer upon them any right to its enjoyment. So long as its use is merely permissive, it confers no right; but the proprietor can prohibit its use or discontinue it altogether at his pleasure. A different doctrine would have a tendency to destroy all neighborhood accommodation in the way of travel; for if it were once understood that a man, by allowing a neighbor to pass through his farm without objection over the passway-which he used himself, would-thereby, after a lapse of 20 or 30 years, confer a right on him to require the passway to be kept open for his benefit and enjoyment, a prohibition against all such travel would immediately ensue.” [267] 2. In this case it appears that the defendant himself, in a petition to the County Court for what is commonly • known as a “road of public easement,” alleged that he was using the private road mentioned in his answer “by common consent of adjacent owners of land.” It also appears that at the time of the transfer of title under which the plaintiff claims the defendant urged upon the grantor that he should make arrangements with the prospective purchaser for a right of way for the defendant, which request was declined. It is undisputed that for some time the plaintiff maintained across the road in question a gate, which he kept under lock and key. It is true he left with the family of the defendant a key to the lock, but it was with the injunction that the gateway must be kept closed, or permission to pass would be denied. All this indicates permissive passage, recognized as such by the defendant, and is inconsistent with title by prescription to the alleged easement. It seems that this modus vivendi continued until stock from the defendant’s premises kept breaking into the young orchard of the plaintiff, when it repented him that he had allowed the transit to continue so long, and thereupon he fenced up the right of way, after giving the defendant notice that permission to cross would be withdrawn. Upon the defendant’s persisting in breaking the fence and passing over the land afterward, this suit was commenced. The great preponderance of the testimony is to the effect that the defendant never had more than permission to pass over the land. This would not constitute the adverse user necessary to establish title by prescription, however long continued. It is conceded that he had no title by deed to the right of way. The case is within the principles announced in Parrott v. Stewart, 65 [268] Or. 254, 261 (132 Pac. 523, 525), Bohrnstedt Co. v. Scharen, 60 Or. 349 (119 Pac. 337), and Stotts v. Dichdel, 70 Or. 86 (139 Pac. 932). For these reasons, the decree of the Circuit Court must he affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice McNary concur.