22 N.Y.S. 990 | N.Y. Sup. Ct. | 1893
The action was to restrain the defendants from obstructing or interfering with the plaintiff’s use of an alleged right of way across a portion of the defendants’ farm. There is no conflict of evidence upon any material question of fact in the case. The only question is whether the undisputed evidence establishes an irrefragable title in the plaintiff, by prescription, to the easement in question. It is our conclusion that such is the effect of the evidence. The contention to the contrary, which is sustained by the learned referee, is to the effect that the user upon which the plaintiff relies to establish her title to the easement was by the license and consent of the defendants’ grantor. The unquestioned facts of the case are to the following purport: As early as the year 1832, Nathan Phillips, the defendants’ grantor, by mesne conveyances, occupied the lot of 85 acres now owned and occupied by the defendants, in the town of Carroll in Chautauqua county, of which he after-wards, and in the year 1836, received a deed from the Holland Land Company, and on which he lived until his death, in 1853. At the earliest date above mentioned, the lot of 50 acres adjoining Phillips’ lot on the north, and cornering with it on the east, was occupied by one Benjamin Russell. There was no highway contiguous to the 50 acres; the nearest public road being one known as the “Frewsburg Road,” which traversed the Phillips lot in a direction from southwest to northeast, and approached to within about 20 rods from the comer of the two lots. At that time Russell had access to the highway from the 50 acres by means of a lane or roadway which ran from the south line of the 50 acres to the road, at a point where the distance between the two was about 29 rods. Its¡ location was that of the right of way here in question. Some time before the year 1838, Vearon Eaton, the father and grantor of the plaintiff, succeeded to Bussell in the occupancy of the 50 acres; and in that year he received a deed of the lot from the-Holland Land Company, and continued to occupy it until his death, in 1881. In that year he conveyed the 50 acres, with appurtenances, to the plaintiff, excepting 11 acres off the west end, which he had previously conveyed. The plaintiff has occupied the land conveyed to her from that time to the present, and has made use of the right of way in
It is unnecessary to recapitulate the facts of the case in greater detail. It is sufficient to say that the undisputed evidence exhibits a user of the right of way in question by the successive occupants of the 50 acres, or what is known in the case as the “Eaton Farm,” not only for 20 years, but for a period sufficient to satisfy the ancient rule of the common law,—literally, a period beyond which the memory of man runneth not. Ho witness speaks of a time when the right of way was not used, and the witness who speaks of the remotest date mentioned in the case knew the .right of way as then in use. The user was during all that time open, notorious,—necessarily known to the owners and occupants of the Phillips farm. Even at the remotest date above mentioned the lane or roadway was fenced on one side, and it came to be fenced on the other side as soon as the land was so far cleared and improved as to render fencing convenient to the uses to which it was put. And so the evidence discloses that, during the whole period covered by the memory of all but the oldest witnesses in the case, the right of way in question was marked by fences on both sides down to the time— less than 20 years before the commencement of this action—when the interference began, of which the plaintiff complains. The evidence of such fencing is important, as showing the definite location and notorious use of the right of way, and, chiefly, as tending to show the exclusive character of the claim of right asserted in its use. It was not necessary for the purpose of showing that the user was adverse. The statutory rule, embodied in the Code of Civil Procedure, (§ 372,) which prescribes either a substantial- inclosure or usual cultivation or improvement as a necessary condition of adverse possession by a person claiming title to land, not founded upon a wr’++en instrument, has no application to the case of an easement, as of passage. Such an easement is an incorporeal right, and may as well be asserted and exercised over and upon an open and uncultivated field as upon one substantially inclosed and usually cultivated. Indeed, inclosure and cultivation are likely to be derogatory to the free exercise of a right of passage over land; and in this case the interference with the plaintiff’s right, complained of, consisted, in great part, of an attempt to cultivate by plowing so near the roadway as to obstruct its convenient use for the passage of wagons.
It was apparent from the Outset of the examination of this case that its determination depended, not upon any question of the open and notorious character of the use of the right of way, nor of its continued, uninterrupted, and undisputed exercise for a period much longer than necessary to establish title to the easement, but upon the sole question whether such user was under a claim of right, and therefore adverse; and here we think the learned ‘ referee was in error, in failing to give the proper force and application to the presumptions which arise from the es
jif these views are correct, it follows that the exception of the plaintiff to the finding of fact to the effect that the user of the right of way by Eaton was by virtue of a license, merely, was well taken, as being without evidence to support it, and contrary to the presumptive evidence of a grant, and the conclusion of law based upon such finding must fall with it. The judgment should be reversed, and a new trial granted. So ordered, with costs to abide .the final award of costs. All concur.