Berkey & Gay Furniture Co. v. Valley City Milling Co.

Brooke, J. (after stating the facts). The first position taken by defendant in our opinion requires no examination. It may be conceded for the purposes of this case that the reservation contained in the deed of one-third of lots C, B, and A executed in 1836 was obliterated by the subsequent merging of all the estates in Daniel Ball. The language of this deed, however, is of evidential value not as showing that complainants have a record title to the easement, but as indicating beyond peradventure that the owners of the property as early as 1836- believed that the beneficial use of the land lying between the canal and the river could only be enjoyed by the several owners thereof, if a common way were kept open on the west bank of the canal. We are of opinion that decision may well be rested upon a negation of the defendant’s second position. The record shows without contradiction that from the earliest period within the memory of living witnesses and during all the intervening time down to the present complainants and all other persons desiring to use said way have done so, and this user we find to have been as of right and not by sufferance. No protest against such user has been voiced by defendant except by the erection of the sign, hereafter noticed, and the way has- never been closed except upon occasions when repairs were necessary. The maintenance of a sign to the effect that the road was a private drive and must be used at the risk of the user is not conclusive. In the first place the way had been in use for more than a quarter of a century before any sign was erected, and in the second place the purpose of its erection would seem to be rather to avoid liability for possible [242] injury upon the way than to assert defendant’s dominion over it. Many cases are cited in defendant’s brief to the proposition that a user having its inception in license or favor cannot ripen into a prescriptive right. This is undoubtedly the law, but the principle cannot be applied to the facts in this case. Complainants themselves or their grantors purchased lot C as abutting on the west side of the way then called Mill, street in the deeds. The user of the way had certainly existed more than a quarter of a century before the execution of the deeds by which defendant claims to have secured the title to the fee. Under these circumstances it cannot be claimed that the user in its inception was through license or favor of the defendant or its grantors. It has been held that the open, notorious, continuous, and adverse use across the land of another from a residence or place of business to a public road for more than 20 years affords a conclusive presumption of a written grant of such way (Clement v. Bettle, 65 N. J. Law, 675 [48 Atl. 567]), and that when the pass-way has been used for something like a half century, it is unnecessary to show by positive testimony that the use was claimed as a matter of right, but that after such user the burden is on the plaintiff to show that the use was only permissive (Magruder v. Potter, 77 S. W. 919, 25 Ky. Law Rep. 1336). See, also, Chenault v. Gravitt, 27 Ky. Law Rep. 403 (85 S. W. 184); Wathen v. Howard, 27 Ky. Law Rep. 7 (84 S. W. 303). We are of opinion that the defendant not only failed to show that the use of said way by the plaintiffs was permissive, but that the plaintiffs introduced testimony which convinces us that such use was enjoyed by the plaintiffs and their grantors as a matter of right. It is next contended by defendant that no easement [243] ever existed on the location found in the decree. This claim is based upon the fact that the decree delimiting the way across defendant’s land commences at a point 19.10 ft. west of the westerly line of the canal where it crosses Michigan street, and it is urged that if any right of way existed it was a right of way 30 feet wide immediately west of the canal. An examination of the defendant’s Exhibit C will show that the defendant just north of Michigan street has erected a garage 17.6 feet wide extending westerly from the edge of the canal, and that its intake is open for an equal distance west of the west line of the canal. Again referring to said plat we find that the way over the Berkey & Gay property is approximately 30 feet wide, though north of that it has been narrowed by structures at one point to 23.25 feet, and at another to 17.4 feet. We are of opinion that the wrongful invasion of this way by others should not be held to prevent plaintiffs Berkey & Gay from insisting that the way be kept open from their premises south to Michigan street. If the obstructions north of the Berkey & Gay factory have not existed for a period sufficient to establish the right to their maintenance by prescription, defendant, if interested, would doubtless be entitled to its remedy. The fact, if it be a fact, that the way during all the period has not been in the same place is not controlling. If the defendant by reason of the erection of its garage just north of Michigan street on the west side of the canal, and the construction of its intake there, for its own convenience, pushed the way further to the west, the new way would take the place of the former one. Hall v. Hall, 106 Me. 389 (76 Atl. 705); Chenault v. Gravitt, supra. It is finally contended on behalf of defendant that the proposed garage does not interfere with the right of way. This is based upon the fact that between 13 and 14 feet between the northwest corner of the pro [244] posed garage and the southeast corner of the Berkey & Gay factory would still remain available for the way. It is said that the widest wagon used by complainants or any of them is less than 7 feet in width, and that as the obstruction is only at one point, and teams would not be required to pass at that point, the space left is .adequate. We are unable to agree with the contention of the defendant that the beneficial use of the said way would not be seriously interfered with by the erection of said proposed structure. The record shows that the property abutting upon said way for a considerable distance to the north is occupied by large manufacturing establishments, and that constant ingress and egress to the various places is, necessary. It can hardly be contended that a way at one point 14 feet wide is as valuable as one approximately 30 feet wide. The fact that plaintiffs at a very considerable expense have undertaken to enjoin the structure for the purpose of maintaining their right to the broader way would seem to indicate that they, at any rate, believe that defendant’s proposed garage would seriously interrupt their use of the way. A very significant, if not controlling, fact in this controversy has not been heretofore referred to. It appears that as late as 1903 a controversy arose between plaintiffs Berkey & Gay and the defendant as to the exact line separating their properties. In that year mutual deeds were executed by the parties, and the one executed by the plaintiffs. Berkey & Gay contained the following reservation: “Reserving the rights of the first party in a 30-foot alley on the east side of said mill lots (the mill lots in question being lots B and C).” On the same day and as part of the same transaction the defendant conveyed to the Berkey & Gay Furniture Company certain land, reserving a right to the first party to a 30-foot alley on the east side of the [245] said lots. It is therefore apparent that within 10 years of the filing- of the bill of complaint in this case defendant and plaintiffs Berkey & Gay had by solemn deed recognized in each other a right of way over lots B, G, and A, 80 feet in width. The decree of the court below will stand affirmed, with costs. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.