Wallace v. Fletcher

Berl, J. At common law, a title acquired by possession during the period and in the manner prescribed by the law, was called a title by prescription. By the lapse of the requisite time, what was at first a bare possession, becomes a right of property, perfect and indefeasible. Gale & What, on Easements 62. The doctrine of the common law, as cited by Coke, (Coke’s Litt. 113, b.) from Bracton, (Lib. 2, fol. 51,) substantially agrees with the civil law. “ Both to customs and prescriptions, these two things are incidents inseparable! viz.: possession or usage and time. Possession must have three qualities, it must be long, continual, peaceable ; longa, continua, et pacifica; for it is said, transferuntur dominia sine tituo et traditione, per usucapionem; sed, per longam, continuum, et pacificam possessionem. Longa, i. e., per spa-Hum temporis per legam definitam ; continua, dico, ita quod non sit legitime interrupta; pacificam, dico, quia si contentiosa fuerit, idem erit, quod prius, si contentio fuerit justa.” “ Longus usus, nec per vim, nec clam, nec precario,” 8c c. G. & W. 122. By the civil law, the rule was “ ut prescription longi temporis, id est decern annorum inter presentes, et viginti inter absentee, servitutes adquirantur.” 1 Hei. ad Pan. part 2, § 158; 2 lb', part 6, §§ 122-125; Domat’s Civil Law, § 2190. But by the common law, the time was not fixed to — 445 — a certain number of years, but as it was expressed by Little-ton, (Ten. § 170,) it was “ de temps dont memorie des homes fie curt a le contrarié,” or as Coke (Coke’s Litt. 115, a.) quotes from Bracton, “ Docere oportet longum tempus et longum usum ilium; viz. qui excedit memoriam hominum, tale enim tempus sufficit pro jure.” In 1275, by statute 3 Ed. I, writs of right were limited to rights actually enjoyed after the first year of Prichard I, (1189,) and by analogy to the period fixed by that statute, it was held that time of legal memory reached to that date, and not beyond it. Being a fixed date, it was of course continually receding, until it became absurd, since it was practically impossible to prove any fact of so ancient a date. The courts might have held, when difficulties were found to result from this arbitrary rule, that the ancient law, which fixed the period beyond which actual memory did not reach, was still in force, or they might have availed themselves of the passage of the statute of 32 Henry VIII, which reduced the limitation of writs of right to three score years, to decide by analogy to that statute, as was done in the time of Edward I, that the time of legal memory was reduced sixty years. It appears by Littleton, § 170, that in his time it was seriously contended that the time of legal memory was not changed by the statute of Edward I. And Rolle, C. J., was of that opinion, though he admits the practice was otherwise. 2 Bolle’s Ab. Prescription, P. And many respectable authorities maintained, after the statute of 32 Henry VIII, that time of legal memory was sixty years, as Rolle, C. J., Sergeant Williams, 2 Wms. Saund. 175, n. a., Lord Mansfield, 2 Ev. Poth, 136, Blackstone, J., 2 Com. 31, Abbott, C. J., 5 B. & A. 215, and Dallas, C. J., C. B. Moore 558. From causes which are not now apparent, neither of these views prevailed, and the consequence was that no title to any easement could be supported upon proof of occupation — 446 — and enjoyment, however long continued, if its origin could be shown. The natural and, indeed, necessary consequence of a rule so absurd, and one necessarily productive of so unjust consequences, was that the courts were driven to evade it by refinements and fictions. It seems by the case of Guernsey v. Rodbridge, Gil. Eq. Cases 4; S. C. 2 Vern. 390, under the name of Finch v. Resbridger, in 1707, that the court of chancery first adopted the principle of presuming the former existence and loss of a deed, where a long and uninterrupted possession of an easement was shown. It was not until 1761 that this principle was adopted in the courts of common law in England. Some of the judges there were, at times, inclined to give to this presumption the effect of a presumptio juris et de jure, a' legal presumption binding on both courts and juries, as a rule from which neither had a right to depart, a presumption of a right constituting a perfect title or bar, as the case might be. Wilmot, J., in Lewis v. Price and Dougal v. Wilson, Saund. 175, a.; Eyre, C. J., in Hed v. Holcroft, 1 B. & P. 400; Lord Ellenborough, in Ralston v. Benstead, 1 Camp. 163, and in Bealey v. Shaw, 6 East 214; and Lord Mansfield in Darwin v. Upton, 2 Wms. Saund. 175, a. and Mayor v. Horner, Cowp. 102^ ^ But the current of English decisions haafgone no further, than to hold that lon’g continued and uninterrupted posses-" sion is evidence from which a jury may presume a deed Keymer v. Summers, B. N. P. 74; Campbell v. Willson, 3 East 294; Gray v. Bond, 5 Moore 327, S. C. 2 B. & B. 627; Cross v. Lewis, 2 B. & C. 686; Darwin v. Upton, 2 Wms. Saund. 175, a.; Livitt v. Wilson, 3 Bing. 115. The instruction given to the jury that such proof is competent evidence, from which they may infer the existence and loss of a deed, is understood to be accompanied by a recommendation so to find the. fact, whatever may be their individual impressions of its truth, and it seems that — 447 — verdicts rendered in conflict with "such recommendations would be set aside, Bealey v. Shaw, 6 East 214, per Ld Ellenborough, C. J.; Bright v. Walker, 1 Cr. M. & R. 217, per Parke, B.; Jenkins v. Harvey, 1 Cr. M. & R. 894, per Alderson, B. Many cases, in this country, have followed in the tracks of the English decisions, though it is apparent that, in a newly settled country like ours, where to a great extent everv thing is of recent date, and the history of our towns, of our roads, farms, mills and dwellings are known, a rule like that, adopted in England is in no respect adapted to our sitúa-, tion. On other subjects, the common law has been everyf where modified, to adapt it to the wants of our community. The English decisions on this subject have been but modes of evading the effect of early decisions of their courts, which have been found inconsistent with the principles of justice ; and it is clearly as much within the legitimate sphere and customary action of the courts to disregard or to overrule such decisions, as it can be to evade them by nice presumptions, either of fact or of law. It was the wise course, prescribed by principle as well as by public convenience, to overrule the absurd decisions which sanctioned a fixed point in the early history of England, as the limit of legal memory, and at the same time to restore the principle upon which that decision appears to be made, that in cases where the Legislature have not fixed a precise rule of limitation, rights shall be acquired and barred by a prescription of such length of time as has been fixed by the Legislature as the proper limitation in analogous cases. Ricard v. Williams, 7 Wheat. 110; Hunt v. Hunt, 3 Met. 185. It was to adopt here as the law, the strong view of Wilmot, J., in Lewis v. Price, that if a possession of twenty years is sufficient to give a man title to a house, there can be no reason why it should not be sufficient to give title to any easement belonging to the house. Upon these views, we take the law to be here settled, as — 448 — is laid down by Prof. Grqnleaf, 2 Greenl. Ev. § 539: “ By the Weight of authority, as well as the preponderance of opinion, it may be stated as the general rubs of American law, that an adverse, exclusive and uninterrupted enjoyment for twenty years of an incorporeal hereditament affords a conclusive presumption of a grant, or a right, as the case may be, which is to be applied as a presumptio juris et de jure, wherever by possibility a right can be acquired in any manner known to the law. In order, however, that the enjoyment of an easement in another’s land may be conclusive of the right, it must have been adverse, that is, under a claim of title, with the knowledge and acquiescence of [the owner of the land, and uninterrupted; and the burden | of proving this is on the party claiming the easement.” In (support of this position, he cites Tyler v. Wilkinson, 4 Mason 402; Ingraham v. Hutchinson, 2 Conn. Rep. 584; Strickler v. Todd, 10 S. & R. 63, 69; Sherwood v. Burr, 4 Day. 244; Tinkham v. Arnold, 3 Greenl. 120; Hill v. Crosby, 2 Pick. 466; Ricard v. Williams, 7 Wheat. 109; Cooledge v. Learned, 8 Pick. 504; Sargent v. Ballard, 9 Pick. 251; Melvin v. Whiting, 10 Pick. 295; Bolivar M. Co. v. Neponset M. Co., 16 Pick. 241; Den v. McCann, 2 Penn. Rep. 331, 333; Morgan v. Banta, 1 Bibb 582; Simpson v. Hawkins, 1 Dana 306; Shaw v. Crawford, 10 Johns. 236; John v. Stevens, 3 Vt. Rep. 316. To which may be added, Stiles v. Hooker, 7 Cow. 266; 1 Kent Com. 444; 2 Hill’d Ab. 60, 61; Shumway v. Simonds, 1 Vt. Rep. 53: Baldwin v. Calkins, 10 Wend. 166; and Miller v. Garlock, 8 Barb. 153, where the principles applicable in cases of this kind are very clearly stated and condensed; Hoyt v. Carter, 6 Barb. 219; Valentine v. Boston, 22 Pick. 80; Atkins v. Bordman, 20 Pick. 302; Littlefield v. Maxwell, 31 Me. Rep. (1 Red.) 140. In this State, in Bullen v. Runnells, 2 N. H. Rep. 255, it was said by Woodbury, J., and held by the court, that the most conclusive evidence as to the interests of parties in — 449 — water-courses, was the occupation of the parties during twenty years, because that is the common and peculiar mode of acquiring rights to the use of water, and because so long an occupation of a stream not navigable raises a presumption that the grants, now lost by time and accident, have passed between the parties, in conformity to the occupation. In Gilman v. Tilton, 5 N. H. Rep. 231, Richardson, C. J., says: “ Some have held that a term of twenty years of exclusive, uninterrupted enjoyment of the use of water, in a particular manner, is a conclusive presumption of right,presumptio juris et de jure.” It was not the point directly before the court, and he says no more; but we think that the remark shows that the opinion met his approval. The point decided was, that an adverse enjoyment of water for any period less than twenty years is not alone sufficient to warrant the presumption of a grant. In the case of Watkins v. Peck, 13 N. H. Rep. 360, it was held that the adverse, exclusive use of water flowing through an aqueduct, by the owners and occupants of a house, for the term of twenty years, furnishes presumptive evidence of a grant from the owner of the land through which it is brought, to have it flow in the manner it has been accustomed to do for that period. And the learned chief justice who delivered the opinion of the court, remarks of the case: “ During all that time,'' (more than twenty years,) the right of the plaintiffs, and those under whom they hold their lands, thus to take and use the water, has, sb far as appears, not been contested by any one; nor is there any express evidence of any permission asked within the time, or of any sum paid for the use, or any acknowledgment that the use was at the pleasure of those through whose land the aqueduct passed. These facts, if they stood alone, would furnish abundant evidence of title in the plaintiffs to take and use the water, as they and others, whose estates they hold, had been accustomed to do for such peri» — 450 — od.” He subsequently says, “ the plaintiffs’ claim does not rest upon a prescription. There is no pretence that the use has extended beyond legal memory. The plaintiffs must rely upon the presumption of a grant, arising from an undisturbed enjoyment of the use of it, flowing through the land owned by the defendant for so long a period; which may be in the nature of a prescription, except so far as time is concerned.” It is apparent that the learned judge referred to a prescriptiqn such as is recognised by the ancient books of the law, founded upon such a length of possession as the memory of man does not reach to, going back to the first year of Richard I., three hundred years before the discovery of our continent. Such a prescription, of course, could not exist in this case, nor in any case arising in this country. And any attempt to reason from the nature of such a prescription, so far as it related to time, might be properly rejected. The analogy of the presumption of title, or of grant, as the case may be, to a prescription, except so far as time is concerned, is distinctly admitted. And there seems to us both convenience and propriety in applying the term prescription in cases of this kind, since the prescription of the ancient-books can never exist here, and even as to time, the limit recognized here agrees with that of the civil law. Hein Ad. Pand., before cited. However this may be, this case furnishes strong evidence of the concurrence of this eminent judge in the general current of decisions in this country, as stated by Prof. Greenleaf. Upon this view of the law, we think the instruction given-to the jury, that if an owner of a mill privilege, under a claim» of right, used and exercised the rights he claimed, without 5 opposition or interruption, for a period of twenty years, this gave him a perpetual right, was, upon the facts presented by the case, correct, unless the court erred in that part of the charge where they say that the exercise of the rights claimed for twenty years, without interruption, entitled the plaintiff to a verdict, notwithstanding they should find that during — 451 — a part of that time the title to the property affected was, by descent, in the hands of minors. This question, in a different form, came before the court in the case of Watkins v. Peck, and it was there said: “ We are of opinion that no grant can be presumed from an adverse use of an easement in the land of another, for the term of twenty years, where the owner of the land was, at the expiration of the twenty years, and long before, incapable of making any grant, whether the disability arose from infamy or insanity. Perhaps a disability intervening during the lapse of the term, but not extending to the termination of the twenty years, might not be sufficient to rebut the presumption, but it would be absurd to presume a grant, where it was clear that no such grant could have existed.” This case is relied on by the defendants as decisive of the present case, but we are unable so to regard it. In the present case, the period of twenty years, necessary to give a title by presumption of a grant or title, commenced in 1807, and ended in 1828, after which time the right was denied, and its exercise interfered with. From 1822 to 1826, the title of tho defendant’s estate, in which the easement was claimed, was in the minor children of Kelso, the former owner, then deceased, and their interest was sold in 1826, by their guardian, by license from the court of probate. The disability of the owners did not extend to the end of/ the twenty years, but ceased two years previously. That case was not decided in Watkins v. Peck, but was in express terms left undecided. The case then before the court did not require the decision of any question on the subject, since it was held that the then defendants taking the water by contract from the premises of a third person, could justify, under that person, if they could not stand on their own occupation. But it is not necessary here to question the ruling there made, in the case then before the court. But we think that, in the present case, where it appeared — 452 — that the parties interested were of full age at the time when the possession and user commenced, and for fifteen years after; and also at the time when the full time of twenty years was completed, and for two years before, and the title of the minors intervened for some three or four years between those periods, their disability would not prevent a title from being acquired by twenty years possession. We have already stated our impression that by the law, as generally recognized in this country, the party claiming title under such possession, is not obliged to rely merely on a presumption of a grant, but he may rest on a presumption of right, or of any grant, reservation or record, which may be necessary to establish his title; and it seems to us this may properly be regarded as a species of prescription, established here by a course of judicial decisions, by analogy to the statute of limitations of real actions. Cooledge v. Learned, 8 Pick. 504; Melvin v. Whiting, 10 Pick. 295. In cases where the’party claiming title under such presumption, may find it necessary to rely upon the presumption of a deed, we think that long continued user is evidence of a lost or non-existing grant, from some person who might, at some time, have made a valid grant to some person capable of accepting it. It cannot prove more than this. User cannot prove a grant by A. to B., on a given day, unless there be other éircumstanees, which confine the presumption to a particular time, and to those persons only. The evidence of such limitation forms no essential or natural part of the proof of user. Campbell v. Wilson, 3 East 294; French v. Marstin, 4 Foster’s Rep. 453. It strikes us that the legitimate and natural tendency of evidence of user may, in many cases, be rather to prove a deed existing before the commencement of the user, than one executed during the time of the use, or at its termination. Tinkham v. Arnold, 3 Greenl. Rep. 122. The earliest act of user proved, tends to prove a right then existing, upon the principle that he who witnesses any encroachment — 453 — upon his rights, without objection or opposition, seems to admit, in-some degree, however slight, a right in the party who does it. Such light evidence gains force by continued repetition, until at the end of twenty years it becomes, unexplained, conclusive evidence of right. This species of prescription being established here upon the necessity existing among us, of some mode of determining the rights to easements, of a more rational character than the ancient rule of prescription, reaching back to the time of legal memory, and applicable to all cases, the analogy of the statute of limitations, by which the period of twenty years is adopted as the time of prescription, seems reasonable and proper to be followed likewise, as to the exceptions prescribed by that statute. Those exceptions are of two kinds, the case of a reversioner against whom the statute does not begin to run, and by parity of reason, the time of prescription does not begin to run until his interest becomes vested, so as to give him a right of action. The tenant for life or years may grant easements, or permit them to be acquired by user, and they will be valid against himself and those who hold his estate during its continuance, and perhaps not afterwards, where the reversioner had previously neither cause nor right to complain. Daniel v. North, 11 East 370; Bradbury v. Gimsell, 2 Wms. Saund. 175, d.; Barker v. Richardson, 4 B. & A. 579; Ang. Adv. Enj. 46; 2 Greenl. Ev. § 545. Owners who are under disabilities when their rights are first encroached upon, and the right of action for such encroachment first accrues, have by the statutes five years to bring their actions, after the disability is removed, though the period of twenty years may have long expired. Foster v. Marshall, 2 Foster’s Rep. 491. In such a case, we think there would be the strongest reason for applying to the privileges of the house the same rule we apply to the house itself, and to allow to the disabled owner the rule that he may have five years to contest his liability, after his disability has — 454 — ceased. But under the statute it has always been held that after the statute has once commenced to run, no intervening disability will defeat the ordinary limitation arising from twenty years adverse possession. Howell v. Zouch, Plowd. 353; Doe v. Jesson, 6 East 80; Eager v. The Commonwealth, 4 Mass. Rep. 182; Jacksons. John, 5 Cow. 74; Griswold v. Butler, 3 Conn. Rep. 227; McFarland v. Stone, 17 Vt. Rep, 165; Mercer v. Selden, 1 How. 37, and 17 Pet. 37. The same rule seems to us proper to be applied, in case of disabilities arising to the owners of real estate, after the user and enjoyment of an easement has been commenced under a claim of right, with the knowledge of the owner, and without question or opposition on his part. Such intervening disabilities should not defeat the presumption of title resulting from twenty years possession. Tyler v. Williamson, 4 Mason 402; 2 Kent’s Com. 445; 2 Greenl. Ev. 545; Cross v. Lewis, 2 B. & C. 686; Best on Presumptions, 89; Ang. Watercourses, 235. The point relative to the award is not insis’ted upon, and the plaintiff’s answer to it seems sufficient. Judgment on the verdict.