Wilkins v. Nicolai

The following opinion was filed February 8, 1898: Marshall, J. There is no serious controversy but that, respondent is entitled to the relief granted by the judgment appealed from, if the findings of fact are warranted by the-evidence. The real groundwork of respondent’s recovery is the finding that he, and those under or through Avhom he-claims title, had, for more than twenty years, maintained a ditch to drain water off from his land onto the lands of the defendants, thence through a culvert under a private roadway on the latter’s land, near the division line between the-lands of the parties; that such maintenance of the waterway and enjoyment of its use was continuous,- adverse, open,, notorious, and without objection from the defendants and' those preceding them in ownership. Such facts constitute: all the elements of a prescriptive right, and do not come.within the rule which prevails ordinarily, that one cannot acquire a right -by prescription to have mere surface water flow naturally over the surface of his land onto and across the land of another, but within the other rule that the owner ■ of land may, by draining such land of surface and other water by an artificial waterway onto or through the land of" another, openly, continuously, adversely, and with the consent of such other, for a period of twenty years, acquire an easement in the latter’s land for a continuance of such drainage. Gould, Waters, § 279; White v. Clupin, 12 Allen, 516; Conklin v. Boyd, 46 Mich. 56; Curtis v. Eastern P. Co. 98 Mass. 428; Rathke v. Gardner, 134 Mass. 14. It follows that unless we can say that some one of the • findings of fact, as to the elements of a prescriptive right, is ■ against the clear preponderance of the evidence, the judgment appealed from is right, if the finding as to the defendants’ having obstructed and interfered with the continued182 enjoyment of the easement claimed by the plaintiff, is .also •supported by the evidence. It is argued at some length by appellants’ counsel that there can be no prescriptive right founded on a mere permissive use. Such is unquestionably the law. Mere permissive use for any length of time does not create a right by prescription. Pettigrew v. Fvansville, 25 Wis. 223; Fryer v. Warne, 29 Wis. 511. Such rule has no application, however, to the findings of fact in this case, and no application to the evidence preserved in the record. There is no affirmative evidence of how the use in question commenced. The circumstances found by the court, which are amply supported by the evidence, that the use was continuous, open, notorious, and without objection for more than twenty years, stand without any evidence to explain them. From such circumstances the court further found, as an inference of fact, that the use was adverse and acquiesced in; that is, that it commenced under claim of right hostile to the whole world, and was continued without interruption or objection down to the expiration of the period requisite to raise the presumption of a previous grant. Lampman v. Van, Alstyne, 94 Wis. 417. Was such inference warranted, is a question properly presented by one of appellants’ exceptions, though hardly reached bjj- the assignments of error; nevertheless such question should be decided, as it strikes at the very root of respondent’s right to recover. The rule that the evidence of adverse possession must be clear and, positive, and should be strictly construed against the person claiming a prescriptive right, and that every reasonable presumption should be given in favor of the true owner, is fully recognized; but along with such rule is another just as firmly established,— that open, notorious, and continued use without objection, for more than twenty years, unexplained, establishes the fact of adverse possession from the beginning, and a perfect title by prescription. Said Mr. Justice New183 MAN, in the opinion of the court in Carmody v. Mulrooney, 87 Wis. 552, speaking of the acquirement of an easement in the manner under discussion: Unexplained use, continued for twenty years, raises the presumption that such use was under claim of right and adverse, and is as to such fact sufficient, unless rebutted by the landowner by showing it was under a lease, contract, or permission of some kind, to establish such right by prescription. 3 Kent, Comm. 442; Miller v. Garlock, 8 Barb. 153; Hammond v. Zehner, 23 Barb. 473; Jones, Ev. § 80. To the same effect, in Smith v. Miller, 11 dray, 145, speaking of such an easement as the one here claimed, the court said: “ A right to an easement of that kind in the land of another may undoubtedly be acquired by the enjoyment of it, provided that enjoyment is adverse, uninterrupted, and of sufficient continuance and duration, and the actual exercise or enjoyment of the right contended for is prvma facie evidence of prescription, and is sufficient to show a title to the easement which is claimed.” So, to the same effect, is Prescott v. White, 21 Pick. 342, where Chief Justice Shaw used this language: “It must be taken, according to established rules of law, that the run of such a canal through the land of another for the time stated is evidence of an antecedent grant.” Erom what has preceded, obviously, the finding of fact as to adverse use followed as a necessary inference from the finding of open, notorious, and continued use without objection for more than twenty years, which latter facts are considered supported by the evidence. If th & prima facie case, made by such continuous use, had been met by proof that it was under a license or contract, or permission of some character, or explained in some way as not hostile to the title of the true owner, the presumption of adverse use arising from the evidentiary facts stated would have been destroyed; but there was no evidence whatever produced on the subject. There is affirmative evidence, however, of a recogni [184] tion for many years of. plaintiff’s right to use the drainage ditch as contended for, in that, in the construction and maintenance of the private road, during'substantially the whole period, defendants maintained the culvert under it for the free passage of the water coming down from the marsh through the ditch. Exceptions were taken to the findings as to the obstruction and threatened continuance thereof, of the waterway at the culvert on defendants’ land. The evidence bearing on that subject has been examined without perceiving any sufficient reason to disturb such finding. By the Court.— The judgment of the. county court is affirmed. Bardeen, J., took no part. A motion for a rehearing was denied April 12, 1898.