Burnham v. McQuesten

Bellows, J. To establish a title by user, it is necessary to prove that the user was adverse, exclusi ve and uninterrupted. It must be under a claim of right and not by license or permission of the owner. In this case the finding of the court is that the use of the way was begun by the late Nathaniel P. Rogers under whom the defendant claims, without right, and without color or claim of right, and that the use of the way by him and by the defendant continued to be permissive down to the time when the fence was built and the gate erected, in 1868, and that therefore the defendant failed to establish his right of way by prescription, and accordingly the court finds a verdict for the plaintiff. It becomes necessary in the first place to ascertain what are the questions before us. The defendant’s counsel contends that, as by the act remodeling the judiciary, passed July 14, 1855, sec. 27, the decision of the court must be given in writing if either of the parties desire it, stating first the facts found, and then the conclusion of law upon them, which shall be filed and recorded, the finding of the judge who tries the cause as to matters of fact is subject to revision by the whole court. ■ It will be observed, however, that it is the facts that are to be reported and not the evidence; and also that, it is provided in the same section that either party may except to the decision upon any matter of law arising upon such trial, or involved in such decision, in the same manner, and with the same effects, as upon atrial by jury. It is clear, then, we think, that it was designed by this provision to subject to the revision of the whole court matters of law alone, and not the findings of the judge upon matters of fact. Nor is there any thing in the case which denotes a purpose to reserve the questions of fact for the whole court. The material question, then, is whether upon the evidence the finding of the court can(be sustained; not whether this court on the evidence reported would now find the same way ; but whether the evidence was of such character that the court must- find the right of way established. The great question was whether the use by the defendant and his grantor of this way was under a claim of right, or was permissive. If the way was used with the assent or license of the owner, it was not adverse, and how that was, was a question of fact upon all the circumstances of the case. The defendant showed no color of title, and as in the case where a party sets up a title to the land itself by adverse occupation, the presumption would be that the use was in subordination to the legal title until the contrary was shown. [452] The burden of proof was, therefore, upon the defendant to prove that the use was under a claim of right. The defendant, to make that out, relied chiefly upon the long use of the way, which was the only carriageway to his house, and the fact that Rogers, when he drew in his materials for his house, had leveled off and prepared the land so as to make a convenient way for that purpose, and that defendant himself had, from time to time, done a small amount of work on the way in cleaning off the grass and putting on it a little gravel, although the amount of work done and the sum expended, had been trifling; and that the way was distinctly marked by wheel and horse tracks and was so when defendant purchased. On the other hand it appeared, that, before Mr. Rogers began on his lot, an academy had been built on the lot now owned by the plaintiff, and the ground in front thrown open as a common, in connection with the land south in front of the court-house and other buildings ; that this remained in common and unenclosed until 1853, and during this time people entered and crossed this lot as they pleased ; that there were footpaths on it in various directions, but no marked way for carriages except that used by Rogers and the defendant. This way was distinctly marked by wheel tracks and the path of the horse, but except that, it was left level and was not wrought, ridged or ditched, so as to cause any interruption or inconvenience in the use of the land by the academy; nor did the use of it cause any damage or inconvenience to the owner of the plaintiff’s land. The case finds also that in 1853 Shepherd, who then owned the Academy lot, made a fence on the south line of his lot, on the line of the court-house lot, and on the main street, and that he made a gate upon Main street opening into the Academy lot; and’ while so fencing out his lot and putting up this gate, the defendant objected and told Shepherd that the gate was an obstacle to the travel that had usually been over the lot, and would be a source of a great deal of trouble for him to open and shut it; that Shepherd then told him that was his purpose, to obstruct that travel and prevent the use of the lot for any other use than that of the school; and it did not appear that McQuesten made any reply to this ; that the gate was maintained after this, and defendant has continued to use the way as before, except that it has been subject to the gate on the main street, until a road, after plaintiff purchased in 1861, was laid out on the south line of plaintiff’s lot, and then the gate was removed to the fence on that road, at or near the place where the way formerly, commenced on that lot. This fence, so erected by Shepherd, extended across the way as then used, and the defendant then entered upon the Academy lot through the gate on Main street, a short distance from the original entrance, until the laying out of the new road. From this evidence we think it was competent for a jury to find, by implication, a general license by the proprietors of the Academy to enter upon this common land for the purposes for which it was used, and the inquiry would be whether Mr. Rogers, and after him the defendant, used this way upon the strength of this implied license, or upon a claim of right. If it were to be held that in strictness this throwing open [453] of this land to be used in common was not a license in law, still it must bear strongly on the question whether the user was adverse or permissive. In deciding that question much would depend upon the extent and character of the use of the way ; and more especially upon the extent of the change in the surface in working it. Inasmuch as the making of a substantial and permanent road with proper grading and ditches would be much more significant of a claim of right, than the mere passing over the natural surface in the track made by the horse and carriage alone, and at the same ‘time would be better notice to the owners of the land. In this case the natural surface of the ground does not appear to have been changed; and although the way was long used by the defendant and his grantor without interruption, we think there is nothing in the case that would warrant us in saying that the court could not properly find that the defendant had failed to establish a prescription. From the evidence in the case we think it quite clear that the court would not have been justified in deciding, as matter of law, that the use of the way was under a claim of right. On the contrary, in the case of Kilburn v. Adams, 7 Mass. 33, which was very much like this, the plaintiff who had sued for obstructing his way was nonsuited subject to the opinion of the whole court, which directed judgment on the nonsuit. Here the way in question was over an academy lot designedly left unenclosed as a common, and the court, Shaw, C. J., held the rule to be’ ‘‘ that where a tract of land attached to a public building, such as a meeting-house, town-house, school-house and the like, and occupied with such house, is designedly left open and unenclosed for convenience or ornament, the passage of persons over it, in common with those for whose use it is appropriated, is, in general, to be regarded as permissive and under an implied license, and not adverse; and such a use is not inconsistent with the only use which the proprietors think fit to make of it. And though an adjacent proprietor may make such use of the land more frequently than another, yet the same rule will apply, unless there be some decisive act indicating a separate and exclusive use under a claim of right. A regularly formed and wrought way across the ground, paved, macadamized, or gravelled, and fitted for use as a way from his own estate to the highway, indicating a use distinct from any use to be made of it by the proprietors, would in our opinion be evidence of such exclusive use and claim of right; so would be any plain, unequivocal act, indicating a peculiar and exclusive claim, open and ostensible, and distinguishable from that of others. But the fact that a particular track or line was a little more worn and marked by travel than the general surface of the lot, or (hat the adjacent proprietor had occasionally leveled a spot gullied by the rain, could scarcely be regarded as indicative of a claim of right.” The evidence in fact tended to prove that there was a way across this lot over which the plaintiff used to drive his team and carriages to his house and store; that he repaired it in several places, carting gravel on to it where it had been gullied, and repairing it at different times so he could pass over it with a horse and chaise. [454] Tbe difference between tbe two cases is not very material; tbe most important, is in the duration of tbe use, it being much longer in the case before us than in the other; but we think the case a strong authority against holding as matter of law in the present case, that a right of way is made out, or that a jury could not properly find that the use was permissive and not adverse. To prove the use to be adverse, it is not sufficient to show an intention alone to claim it as of right, but that intention must be made manifest by acts of such clear and unequivocal character that notice to the owner of the claim might reasonably be inferred ; and it is very apparent that a user, which in ordinary cases would indicate a claim of right and furnish reasonable evidence of notice to the owner, might wholly fail to furnish such indication where the land was laid in common under such circumstances as to be an implied license to all persons to pass over it. Whether in the individual case such acts are shown as do or or do not indicate a claim of right must ordinarily be a question .of fact for the jury ; and this case, we think, furnishes no exception. It has been urged that the finding of the court is against the weight of the evidence, but to this the views already suggested are, as we think, a sufficient answer. The motion upon this ground stands upon the same footing as if there had been a verdict of the jury, and there is nothing, we think, to bring it within the principle of the decided cases upon that subject. Clark v. Congregational Society, 45 N. H. 331, and the authorities cited. On this point it is to be considered that when Shepherd closed up the way by building a fence across it and opening a gate on Main street, the defendant was present and objected to it; saying that the gate was an obstacle to the travel that had usually been over the lot, and would be a source of a great deal of trouble for him to open and shut. But upon Shepherd’s- telling him that was his purpose, to obstruct that travel and prevent the use of the lot for any other purpose than that of the school, the defendant set up no right of way in himself, and in fact made no reply at all. Here Shepherd had closed up the way by a fence across it, and told the defendant expressly that he did it to stop the travel across it, in substance; and this naturally called upon the defendant to assert his claim to the way, if he understood it existed. His silence upon that subject at a time when an assertion of his right might have been expected was for the jury to weigh. It was in the nature of an assertion that he claimed no such right of way, although, of course, of much less significance; and yet, nothwithstanding the defendant continued to use the way though subject to the gate, we think a jury might very properly have considered the want of any assertion of a right to. the way. It is urged also that certain facts stated in the case relating to the making of another way to the defendant’s house and the damage to the plaintiff’s land ought not to have been considered. We think, however, that these facts must be treated as properly in the case as it now stands ; and we are not aware of any objection to their having been considered, even if the evidence in respect to them had been derived mainly, or even wholly, from a view taken at request of the parties, as [455] suggested by defendant’s counsel. The fact that Mr. Rogers was on.e of the trustees of the Academy while using this way was laid out of the case by the judge who tried it and has not been considered by us, although, as held in Kilburn v. Adams, before cited, it might properly have been entitled to some weight on the question of fact whether he used the way under a claim of right. With these views there must be Judgment on the verdict.