Kieffer v. Fox

Doerfler, J. “When it is shown that there has been the use of an easement for twenty years, unexplained, it will be presumed to have been under a claim of right and adverse, and will be sufficient to establish a right by prescription, and to authorize the presumption of a grant, unless contradicted or explained.” Carmody v. Mulrooney, 87 Wis. 552, 554, 58 N. W. 1109. Whether or not there was such an adverse user presents a question for the jury in a jury case, and one for the court when the cause is tried before the court. The case at bar was tried before the court, and the court’s finding of adverse user for a period of over fifty years was amply supported by the evidence. Such user for so long a period, when unexplained, raises the presumption that it was under a claim of right from the beginning, and adverse. The burden of proof-to show such adverse user for at least the statutory period of twenty years rested upon the plaintiffs, and this burden was fully met. There is no evidence in this case to explain or overcome this presumption. There is no evidence of permission or of mere indulgence. Defendants’ counsel contends that the deed to Miller by Pratt of the premises now owned by the defendant Fox, in the year 1886, also contained a grant of this ten-foot strip for alley purposes. But long before this grant, the predecessors in title of the plaintiffs had made use of this alley to obtain ingress to and egress from their property. Such use was neither forbidden nor permitted. It was exercised adversely as against all the world; and as it was exercised for [368] many years prior to such grant, it continued to be so exercised until the time of the commencement of the action. There is not a scintilla of evidence in the case to show that either the plaintiffs herein or their predecessors in title continued the use of this alley, after the grant to Miller, in any other way than in the manner in which it had been used by them prior to such grant. This, it appears, is rather persuasive that, notwithstanding the grant to Miller, plaintiffs and their predecessors in title refused to recognize such grant as having any effect whatsoever upon their right of user of the alley in question, but, on the contrary, tends to establish an adverse user, one hostile to the owner of the fee. It is argued by defendants’ counsel that the facts in this case are substantially analogous to those in the case of Frye v. Highland, 109 Wis. 292, 85 N. W. 351. In the syllabus in the Frye Case it is said: “While the owner of a hotel was using part of the premises as a private way to the hotel barn the owner of the adjoining lot commenced to use the same way as a means of access to and egress from the back part of his lot. Held, that such use by the adjoining owner would be presumed to have been permissive, in the absence of evidence to the contrary, and therefore could not ripen 'into title by adverse possession. Occupancy commencing by permission of the true owner cannot operate as a disseisin until it becomes visibly in defiance of his rights.” It is clear from the statement of facts in the Frye Case and in the opinion that the use by the adjoining owner was permissive and not adverse; that it began at the time of the establishment of the way, and that such use was not unexplained, as in the Carmody Case and in the case at bar. The rule laid down in the Carmody Case is in harmony with the great weight of authority in this state and elsewhere. It is evident that at the time Pratt executed his conveyance to Miller, Miller desired to assure himself, while he was purchasing the property, that he would not be inter [369] fered with in the use of this alley as a mode of ingress to and egress from the rear of his premises. The trial court so concluded, and we so conclude, and such conclusion is based upon the proper inference from the evidence in the case. The fact that the plaintiffs in the construction of their buildings provided for doors and windows in close proximity to the alley, clearly indicates an assertion of right to the use of this alley which would be adverse to all other persons claiming or having title thereto. The fact that the buildings were so constructed, however, is merely of evidentiary value. The Frye Case does not pretend to overrule or modify the Carmody Case; on the contrary, the distinction between the two cases is made clear in the opinion, where it is said: “Respondent’s counsel seems to think the case is ruled by Carmody v. Mulrooney, 87 Wis. 552, 58 N. W. 1109, and Wilkins v. Nicolai, 99 Wis. 178, 74 N. W. 103, supra. In our view these cases condemn the judgment appealed from at all points. They rest on the doctrine that an unexplained, continued use of land for twenty years raises a presumption that it was characterized during the whole period by all the essentials of adverse possession, and prima facie establishes it, but that such presumption may be overcome by evidence that the occupation was under some license, indulgence, or special contract inconsistent with the claim of right, by the occupant. Here there was no unexplained use for twenty years, or for any other period. The occupancy at the commencement was neither exclusive nor hostile. . . . ” The doctrine of adverse possession in the Carmody Case was further affirmed in the recent case of Wegner v. Erffmeyer, ante, p. 212, 213 N. W. 472. We are therefore of the opinion that the judgment of the lower court was right. By the Court. — Judgment affirmed.