Carmody v. Mulrooney

87 Wis. 552 | Wis. | 1894

Newman, J.

One may acquire an easement of right of-way over the lands of another by adverse user for a period of twenty years. To have this result, such user must be adverse to the owner of the land, under claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the estate over which the easement is claimed. Washb. Easem. (4th ed.), 150, par. 26. Such a right can never grow out of a mere tolerated or permissive use. Id. 152. Such adverse user, when continued for twenty years, constitutes a perfect title, as conclusive as a deed or grant. Godd. Easem. (Bennett’s ed.), 138. The burden of proving the user to have been adverse is upon the party claiming the easement. Washb. Easem. 150, par. 36a; 2 Greenl. Ev. § 539; American Co. v. Bradford, 27 Cal. 360-367. Whether the use has been adverse is a question for the jury, or for the court when the trial is by the court. 19 Am. & Eng. Ency. of Law, note on page 14, and cases there cited. 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. In such a case the owner of the land has the burden of proving that the use of the easement was under some license, indulgence, or special contract inconsistent with the claim of right by the other party. Washb. Easem. 156, par. 31, and cases cited in note 5; Garrett v. Jackson, 20 Pa. St. 331. The finding and judgment of the circuit court are supported by this presumption, and so are in accord with the weight of evidence.

By the Court.— The judgment of the circuit court is affirmed.